Category Archives: The Scandals

America Needs One More Jail

In general, I’m of the view that we have too many jails and prisons (and far too many private prisons!), and that this is an industry, or social practice if you prefer, where supply tends to create demand for reasons economic and social.

But I’ve learned that we are short of one jail we need. In today’s New York Times explainer on executive privilege (a non-constitutional doctrine invented by courts, but don’t get me started), author Charlie Savage has an aside in his explanation of the convoluted and uncertain way in which Congress enforces its finding of contempt by non-cooperating witnesses:

(In theory, lawmakers could also direct the House sergeant-at-arms to arrest recalcitrant witnesses and detain them until the end of its session, but that “inherent contempt” authority is viewed as obsolete; the Capitol has no prison cell and lawmakers have not tried to use this power since 1935.)

So here’s my very modest proposal: Congress should either build its own little jail, or it should contract with a nearby jurisdiction–or a private prison company–to guarantee to hold anyone arrested by the Sergeant at Arms. I doubt they would actually have to use it; rather, having this capacity on tap would provide a much greater in terrorem effect than the current system which requires first that the U.S. Attorney for the District of Columbia take up the case, and second that the court fights over it happen quickly–the latter being highly unlikely.

Surely a contingency contract with a per diem per prisoner if required would be a very minor budget item. Stick it in the reconciliation bill please.

Posted in Law: Everything Else, The Scandals | 1 Comment

The First Thing We Do is Praise (Certain) Lawyers

Dick the Butcher in Henry VI, part II, act IV, Scene II, Line 73 explains the necessary first step to seizing power illegally.

Trump really did attempt a coup.

Mr. Rosen, Mr. Donoghue and Mr. Pak — all Republicans — testified that Mr. Trump was not seeking their legal advice, but strong-arming them to violate their oaths of office, undermine the results of the election and subvert the Constitution.

What stopped him?  Two things: 1) Lawyers with a basic core of ethics that required fidelity to bedrock democratic values;  and 2) the general incompetence of the plotters (cf. events of Jan 6, 2020).

I believe this has important implications for how we teach law students.  More discussion of (or paeans to?) the values of the rule of law in a democratic society may be in order.  At least until the Supreme Court makes ashes of it in our mouths, at which point…what?…Edward Luttwak?

Continue reading

Posted in Law School, The Scandals | 1 Comment

Lest We Forget: AG William Barr’s Sad Record

Marcy Wheeler has the goods:

Among the things Bill Barr did in his second tour as Attorney General were to:

In short, over an extended period, Bill Barr laid the groundwork for the two-month effort to undermine the election that culminated in a coup attempt. The outcome of Barr’s actions — the disparate treatment by the department of Trump supporters, the empowerment of right wing terrorists, the continued influence of Powell and Rudy —  was foreseeable. Nevertheless, Barr persisted with those policies that laid the groundwork for the January 6 insurrection.

And, let’s not forget the very misleading spin of the Mueller Report.

Posted in Law: Ethics, Law: Everything Else, The Scandals | 1 Comment

Too Delicious

Washington Post reports that Trump is stiffing Rudy Giuliani on his (inflated?) legal fees after a falling out:

Trump has instructed aides not to pay Giuliani’s legal fees, two officials said, and has demanded that he personally approve any reimbursements for the expenses Giuliani incurred while traveling on the president’s behalf to challenge election results in key states. They said Trump has privately expressed concern with some of Giuliani’s moves and did not appreciate a demand from Giuliani for $20,000 a day in fees for his work attempting to overturn the election.

And why not? Rudy is of no further use at this point, and Trump always stiffs his creditors.

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Actions Have Consequences (Eventually)

People are putting names to the faces.

Posted in The Media, The Scandals | 1 Comment

National Association of Manufacturers Suggests Pence Consider 25th Amendment

Forget the mandate of heaven, Trump has now lost the mandate of capitalism:

“Armed violent protestors who support the baseless claim by outgoing president Trump that he somehow won an election that he overwhelmingly lost have stormed the U.S. Capitol today, attacking police officers and first responders, because Trump refused to accept defeat in a free and fair election. Throughout this whole disgusting episode, Trump has been cheered on by members of his own party, adding fuel to the distrust that has enflamed violent anger. This is not law and order. This is chaos. It is mob rule. It is dangerous. This is sedition and should be treated as such. The outgoing president incited violence in an attempt to retain power, and any elected leader defending him is violating their oath to the Constitution and rejecting democracy in favor of anarchy. Anyone indulging conspiracy theories to raise campaign dollars is complicit. Vice President Pence, who was evacuated from the Capitol, should seriously consider working with the Cabinet to invoke the 25th Amendment to preserve democracy.

“This is not the vision of America that manufacturers believe in and work so hard to defend. Across America today, millions of manufacturing workers are helping our nation fight the deadly pandemic that has already taken hundreds of thousands of lives. We are trying to rebuild an economy and save and rebuild lives. But none of that will matter if our leaders refuse to fend off this attack on America and our democracy—because our very system of government, which underpins our very way of life, will crumble.”

–Press Release, Manufacturers Call on Armed Thugs to Cease Violence at Capitol

Posted in The Scandals | 15 Comments