Category Archives: Courts

A Tenth Circuit Speculator

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The Institute for Justice summarized a 10th Circuit case regarding a car involved in an immediately prior weapons case, its driver, and a weapon thusly:

Aurora, CO, police run tags on car with broken tail light, discover the car was seized three weeks earlier in weapons-possession case and a man (a known gang member) associated with the car was arrested. They pull it over; the man is in it; they frisk him and find a gun. He’s charged with being a felon in possession. Suppress the evidence? No need, says the 10th Circuit. Though he was calm and compliant, officers were justified in patting him down to ensure their safety.
Dissent: The gov’t is going to use this decision to justify frisks in a much broader variety of circumstances than the ones here.

The dissenting judge may well be right, but he’s speculating only.  Treat those speculatedly future cases one by each, as the unique cases they will be, and rule in accordance with the facts of those cases, not the facts of this case.

Congressional Intent

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In a piece centered on Federalism and the Supreme Court’s ruling that Congress cannot require individual States to ban sports gambling, there’s this bit at the end of the article that interests my grasshopper mind.

Supreme Court Justice Clarence Thomas, in concurring, protested the Court’s analysis of Congressional intent.

The Court also determined that PASPA’s [Professional and Amateur Sports Protection Act] prohibition on sports gambling advertising can’t be severed from the law. But as Justice Clarence Thomas noted in his pithy concurrence, the Court’s severability analysis requires courts to make “a nebulous inquiry into hypothetical congressional intent.”

On this, I disagree with Justice Thomas. In Connecticut National Bank v Germain the Supremes held

…that courts must presume that a legislature says in a statute what it means and means in a statute what it says there.

If Congress had intended sports gambling advertising to be severable, it would have said so in PASPA. Congress did not say so; arguing the possibility of severability would be Thomas’ own inquiry into congressional intent.

“It Does Because It Does”

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The dishonesty of Special Counsel Robert Mueller’s case against ex- and brief-Trump Campaign Manager is made manifest in the opening questions Eastern District of Virginia Federal Judge TS Ellis III and Michael Dreeben’s (arguing for the Mueller side) answers.

Ellis noted

Apparently, if I look at the indictment, none of that information has anything to do with links or coordination between the Russian government and individuals associated with the campaign of Donald Trump. That seems to me to be obvious because they all long predate any contact or any affiliation of this defendant with the campaign.

Then, after a long soliloquy regarding the rationale for a prosecutor indicting a lesser player on lesser charges in order to squeeze that player into extruding information on a larger player, Ellis asked,

Where am I wrong in that regard?

Dreeben: The issue before you is Manafort’s motion to dismiss the charges.

Ellis: Yes, now answer my question.

Dreeben: “our investigatory scope does cover the activities [of the indictment]”

Ellis: Answer my question.

Dreeben: “the authorization for the special counsel to investigate matters is described generally in the appointment order on May”

Ellis: Yes, I have that letter.  Answer my question.  How does that letter include the indictment?

Dreeben: “So the authorization order permits….”

Ellis: “You’re running away from my question again. You know, I’m focused on the indictment that is here.”

Dreeben: “Well, Your Honor, we are the Justice Department.”

And there it is.  Mueller’s team flatly refused to explain how indictments related to 13-year-old events in Ukraine are tied in to an investigation of the relationship between the Trump campaign and Russia, choosing instead to be deliberately evasive.  Here, by the way, are the public parts of the Mueller Special Counsel Authorization Letter (my title for the thing), as quoted by Ellis:

Sub-paragraph b(i):

any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump.

Sub-paragraph b(ii):

any matters that arose or may arise directly from the [Mueller] investigation.

Nothing in there about any allegedly nefarious activities in Ukraine.  “Arose or may arise” from the Mueller investigation means exactly that.  Stuff from outside the investigation—the Manafort money laundering charges, for instance—aren’t part of the investigation.  And so Dreeben’s implication that Ellis should just sit down and shut up: “We are the Justice Department.”

Which only emphasizes the Special Counsel’s team’s evasions.

The transcript can be read here.

The Special Counsel Authorizing Letter

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House investigating committees have demanded that Deputy Attorney General Rod Rosenstein turn over his letter to Special Counsel Robert Mueller, and Rosenstein has refused to do so.  Now, in a case Mueller brought against ex- and brief-Trump Campaign Manager Paul Rosenstein, the presiding Federal judge TS Ellis has demanded that Mueller turn over to him an unredacted copy of that letter, and he’s given Mueller two weeks to comply, which works out to 18 May.

We’ll see. Two weeks is much too long to give Mueller to produce his copy of Rosenstein’s authorizing letter; 36-48 hours is plenty—especially since Mueller’s team plainly has that copy always ready to hand; they are, after all, responsible persons.

Ellis also needs to be prepared to jail Mueller and possibly Rosenstein for contempt if Mueller doesn’t meet the deadline, whether Ellis’ or mine, or Rosenstein won’t allow him to, and keep them locked up until the letter is produced.

President Donald Trump could speed things along by declassifying the letter, if Mueller/Rosenstein try to hide behind that. This is a national affair, and We the People need, and have the fundamental right, to know what Government’s unelected bureaucrats are doing under the pretense that it’s in our name.

A Federal Judge’s Mistakes

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US District Judge John Bates has ruled that President Donald Trump’s Executive Order rescinding the DACA program initiated by DHA memorandum under ex-President Barack Obama (D) is illegal.  He’s gone beyond that: he’s ordered the Trump administration to process new DACA applicants, not just renew existing ones.

Bates’ mistakes are two.  One is his ruling that, in effect, it’s illegal to rescind a Department Memorandum by Executive Order.  Of course, this is erroneous.  A Department Memorandum is not statute; it’s not even a Regulation.  It has no legal force beyond being a Cabinet-level equivalent of an EO.  As such, it’s subordinate to Executive Orders and available to cancelation by same.  At worst, the issue is a quibble, easily correctable by an EO instructing the subordinate DHS to rescind its Memorandum.

Bates’ next mistake is claiming the EO is illegal because it offered insufficient support to its claim that the DACA program is illegal.  This is simply irrelevant.  See above: it’s sufficient for the President to instruct a subordinate Cabinet to do a thing, so long as the thing itself is legal.  There are no statutes barring a President from instructing the rescission of a Department Memorandum; such a statute would be unconstitutional, anyway, trampling on the separation of powers as one would.  No explanation for why a Memorandum should be rescinded is necessary, however useful one might be.