House Bipartisan Lawmaking

Stef Kight at Axios:

Republicans may hold the House majority, but Democratic yeas outnumbered GOP votes on every major bill that landed on President Biden’s desk this year. … A divided government, slim congressional majorities and a fractured House GOP caucus forced significant bipartisanship on measures to raise the debt ceiling, keep the government running and set U.S. defense policy…. The House passed the sprawling National Defense Authorization Act on Wednesday, with 162 Democrats voting with 146 Republicans.

…

By the numbers: The bipartisanship is not a new dynamic. Every major piece of legislation to pass both chambers this year had a majority of House “yea’ votes coming from Democrats.

• It’s how Congress raised the debt ceiling in June and avoided a government shutdown — twice.
• Nine less-significant bills — not including resolutions — made it to the president’s desk this year with nearly half of votes coming from Democrats, according to data from Quorum. All were uncontroversial, with six receiving zero no votes.
• These bills declassified information related to the origins of COVID-19 and aimed to give veterans easier access to their benefits claims, among other measures.

Jack Smith Statement

Special Counsel Jack Smith Delivers Statement
Washington, DC ~
Friday, June 9, 2023

Good afternoon. Today, an indictment was unsealed charging Donald J. Trump with felony violations of our national security laws as well as participating in a conspiracy to obstruct justice.

This indictment was voted by a grand jury of citizens in the Southern District of Florida, and I invite everyone to read it in full to understand the scope and the gravity of the crimes charged.

The men and women of the United States intelligence community and our armed forces dedicate their lives to protecting our nation and its people. Our laws that protect national defense information are critical to the safety and security of the United States and they must be enforced. Violations of those laws put our country at risk.

Adherence to the rule of law is a bedrock principle of the Department of Justice. And our nation’s commitment to the rule of law sets an example for the world. We have one set of laws in this country, and they apply to everyone. Applying those laws. Collecting facts. That’s what determines the outcome of an investigation. Nothing more. Nothing less.

The prosecutors in my office are among the most talented and experienced in the Department of Justice. They have investigated this case hewing to the highest ethical standards. And they will continue to do so as this case proceeds.

It’s very important for me to note that the defendants in this case must be presumed innocent until proven guilty beyond a reasonable doubt in a court of law. To that end, my office will seek a speedy trial in this matter. Consistent with the public interest and the rights of the accused. We very much look forward to presenting our case to a jury of citizens in the Southern District of Florida.

In conclusion. I would like to thank the dedicated public servants of the Federal Bureau of Investigation, with whom my office is conducting this investigation and who worked tirelessly every day upholding the rule of law in our country. I’m deeply proud to stand shoulder to shoulder with them. Thank you very much.

AI-Generated Research and Hallucinations

Artificial intelligence is an increasingly important topic in politics, policy, and law.

Benjamin Weiser at NYT:

The lawsuit began like so many others: A man named Roberto Mata sued the airline Avianca, saying he was injured when a metal serving cart struck his knee during a flight to Kennedy International Airport in New York.

When Avianca asked a Manhattan federal judge  to toss out the case, Mr. Mata’s lawyers vehemently objected, submitting a 10-page brief that cited more than half a dozen relevant court decisions. There was Martinez v. Delta Air Lines, Zicherman v. Korean Air Lines and, of course, Varghese v. China Southern Airlines, with its learned discussion of federal law and “the tolling effect of the automatic stay on a statute of limitations.”

There was just one hitch: No one — not the airline’s lawyers, not even the judge himself — could find the decisions or the quotations cited and summarized in the brief.

That was because ChatGPT had invented everything.

The lawyer who created the brief, Steven A. Schwartz of the firm Levidow, Levidow & Oberman, threw himself on the mercy of the court on Thursday, saying in an affidavit that he had used the artificial intelligence program to do his legal research — “a source that has revealed itself to be unreliable.”

This case was not unique. Gerrit De Vynck explains at WP:

Recently, researchers asked two versions of OpenAI’s ChatGPT artificial intelligence chatbot where Massachusetts Institute of Technology professor Tomás Lozano-Pérez was born.

One bot said Spain and the other said Cuba. Once the system told the bots to debate the answers, the one that said Spain quickly apologized and agreed with the one with the correct answer, Cuba.

The finding, in a paper released by a team of MIT researchers last week, is the latest potential breakthrough in helping chatbots to arrive at the correct answer. The researchers proposed using different chatbots to produce multiple answers to the same question and then letting them debate each other until one answer won out. The researchers found using this “society of minds” method made them more factual.

“Language models are trained to predict the next word,” said Yilun Du, a researcher at MIT who was previously a research fellow at OpenAI, and one of the paper’s authors. “They are not trained to tell people they don’t know what they’re doing.” The result is bots that act like precocious people-pleasers, making up answers instead of admitting they simply don’t know.

The researchers’ creative approach is just the latest attempt to solve for one of the most pressing concerns in the exploding field of AI. Despite the incredible leaps in capabilities that “generative” chatbots like OpenAI’s ChatGPT, Microsoft’s Bing and Google’s Bard have demonstrated in the last six months, they still have a major fatal flaw: they make stuff up all the time.

Figuring out how to prevent or fix what the field is calling “hallucinations” has become an obsession among many tech workers, researchers and AI skeptics alike. The issue is mentioned in dozens of academic papers posted to the online database Arxiv and Big Tech CEOs like Google’s Sundar Pichai have addressed it repeatedly. As the tech gets pushed out to millions of people and integrated into critical fields including medicine and law, understanding hallucinations and finding ways to mitigate them has become even more crucial.

Indicting Political Leaders

Richard Pérez-Peña at NYT:

In just the past 15 years, Nicolas Sarkozy and Jacques Chirac of France, Park Geun-hye and Lee Myung-bak of South Korea and Silvio Berlusconi of Italy have all been prosecuted for corruption and found guilty. The list of those criminally charged also includes former democratically elected leaders of Argentina, Brazil, Pakistan, Peru, South Africa and Taiwan.

In the 1980s, Kakuei Tanaka, a former prime minister of Japan, was convicted. And Prime Minister Benjamin Netanyahu of Israel is currently on trial on corruption charges.

“It’s always a big deal when a former president or prime minister is indicted, but in most democracies, it is normal when they’re credibly accused of serious crimes,” said Steven Levitsky, a professor of government at Harvard who has written about dozens of countries’ transition to democracy. The United States, he said, has been an outlier in its reluctance to charge a former leader.

“Political systems have to handle it,” he added. “They have to. Because the alternative — saying some people are above the law — is much worse.”

The essence of authoritarianism is getting away with crime. That's why this indictment is so important

— Ruth Ben-Ghiat (@ruthbenghiat) March 31, 2023

Lawyers, Oaths, and the Insurrection

Many posts have discussed oaths .

 Jessica Levinson at MSNBC:

Simply put, with power comes responsibility. Thus, before law students can become lawyers, they must prove that they are of good moral character. This may involve not only taking an exam but also completing something called a moral character application, which is in many ways akin to a background check. Part of this application includes obtaining references who can attest to one’s character. And that’s where law professors like me enter the picture.

Furthermore, once one passes that moral character vetting process, not to mention the bar exam, future lawyers must also take an oath to become a member of the bar. The oath requires that applicants pledge to uphold the U.S. and state constitutions of where they plan to practice, and to faithfully execute their duties as a lawyer. In California, for example, applicants are required to swear to “faithfully discharge the duties of an attorney and counselor at law to the best of my knowledge and ability. As an officer of the court, I will strive to conduct myself at all times with dignity, courtesy and integrity.” put, before someone can enter the hallowed halls of our profession, we need to know we can trust that person. Less than ethical lawyers could abuse that trust — and their clients' trust — by, say, misusing or stealing a client’s money. Other examples could include breaking a trust on a far larger scale. For example, one could advise the president of the United States to file frivolous lawsuits based on lies but not law, or to devise an unconstitutional scheme to steal a presidential election. In these cases, you’ve fundamentally shown yourself undeserving of holding a position of public trust.

Terminating the Constitution

 

Donald Trump believes we should terminate “all rules, regulations and articles, even those found in the Constitution” to overturn the 2020 election. That was his view on 1/6 and remains his view today. No honest person can now deny that Trump is an enemy of the Constitution.

— Liz Cheney (@Liz_Cheney) December 4, 2022

A Rare Courtroom Moment

Many other posts have discussed  conspiracy theorists.

Alex Jones is in a lot of trouble.

 

“Do you know what perjury is?” pic.twitter.com/awbBpVf4Tl

— Acyn (@Acyn) August 3, 2022

 

Alex Jones's text messages — which showed he withheld evidence — were read to him in a brutal cross-examination on Wednesday after his lawyers apparently mistakenly sent them to a lawyer for Sandy Hook parents. "Do you know what perjury is?" he was asked. https://t.co/wIznbLEKYq

— The New York Times (@nytimes) August 3, 2022

Mother's Day in Law

36 U.S. Code § 117
(a)Designation.—
The second Sunday in May is Mother’s Day.
(b)Proclamation.—
The President is requested to issue a proclamation calling on United States Government officials to display the flag of the United States on all Government buildings, and on the people of the United States to display the flag at their homes or other suitable places, on Mother’s Day as a public expression of love and reverence for the mothers of the United States.
(Pub. L. 105–225, Aug. 12, 1998, 112 Stat. 1258.)

Lawlessness

 Gary Schmitt at AEI:

A recent Washington Post poll has some 34 percent of U.S. adults saying that “violent action” against the government is “sometimes justified.” If more than a third of “adults” are willing to hold such a view, it is not difficult to imagine how an even greater percentage think it is okay to ignore laws and norms that don’t require putting up one’s fists or worse.

In preparation to moderating an event in late December featuring Diana Schaub’s new book, His Greatest Speeches: How Lincoln Moved the Nation, I re-read the three speeches featured in the volume: the Lyceum Address, the Gettysburg Address, and Lincoln’s Second Inaugural Address. The Lyceum Address, in which Lincoln discusses the challenges of perpetuating America’s governing institutions, is particularly apt for thinking about the meaning of January 6.

Lincoln’s argument, prefiguring the famous line from Pogo that “We have met the enemy and he is us,” was that the danger of sustaining the experiment in American self-government would not be some conquering foreign power, but instead “would spring up amongst us.” “If destruction be our lot, we must ourselves be its author and finisher.” Lincoln then goes on to describe several instances of mob violence that he said had been plaguing the whole of the nation.

Lincoln’s answer to this problem is a “reverence for the laws” so deeply held that it becomes “the political religion of the nation.” How deeply? Deeply enough to moderate American individualism and its propensity to resist any restraint. Let it, Lincoln said,

be breathed by every American mother, to the lisping babe, that prattles on her lap—let it be taught in schools, in seminaries, and in colleges; let it be written in Primers, spelling books, and in Almanacs; let it be preached from the pulpit, proclaimed in legislative halls, and enforced in courts of justice.

Needless to say, that is a far cry from the state of U.S. civic education today, in which STEM dominates school curriculums and where the Left emphasizes activism as the key to producing model citizens, while the Right focuses on testing that often only requires a bare minimum of knowledge of U.S. government processes.

The very fact that, according to a new Wall Street Journal poll, two-thirds of Republicans—“the law and order party”—don’t see what happened at the Capitol on January 6 as an attack on the government is remarkable. No less remarkable is the continuing silence from virtually all the Republican leadership in describing the events of that day for what they were. Failing to call the insurrection out for what it was—an assault on the constitutional order itself—and hoping that it will just fade away as a memory implicitly legitimates what occurred then and does next to nothing to head off future mobs from pursuing the same course.

Incarceration Rate Lowest Since 1995

 Todd D. Minton, Lauren G. Beatty, and Zhen Zeng, "Correctional Populations in the United States, 2019 – Statistical Tables," BJS, July 2021.

At year-end 2019, an estimated 6,344,000 persons were under the supervision of adult correctional systems in the United States, about 65,200 fewer persons than in 2018. The adult correctional system includes persons incarcerated in prisons and jails and persons supervised in the community on probation and parole. This was the first time since 1999 that the correctional population dropped to less than 6.4 million. The correctional population declined by 1.0% in 2019 and has declined an average of 1.3% each year since 2009.

About 1 in 40 adult U.S. residents (2.5%) were under some form of correctional supervision at the end of 2019. This represented a drop from 1 in 32 (3.1%) a decade earlier.

...

•  The incarceration rate dropped each year during the last decade, from 980 per 100,000 adult U.S. residents held in state or federal prisons or local jails at year-end 2009 to 810 per 100,000 at year-end 2019.
• By the end of 2019, the incarceration rate had dropped to the same rate as 1995 (810 per 100,000 adult U.S. residents).

Opinion on Equal Justice

At Axios, David Nather reports on a new Ipsos poll:

By the numbers: Nearly six out of 10 respondents — 59% — disagreed with the statement "police treat all Americans equally," while 58% said the same about criminal justice courts and lawyers.

• Black Americans gave the system an especially strong vote of no confidence, with 84% disagreeing that police treat people equally and 76% saying the same about the courts.
• But 53% of white Americans, 62% of Hispanic Americans and 67% of Asian Americans also disagreed that police treat everyone equally, while 55% of white Americans and Asian Americans and 56% of Hispanic Americans voiced a lack of confidence in the courts.
• That lack of faith extended across virtually all other groups, including by gender, age, region, urban/suburban/rural residency, and education and income levels.
• The only hint of confidence in the police came from Republicans, with 51% saying police treat everyone equally (only 7% of Democrats and 18% of independents agreed). Just 42% of Republicans said the courts treat everyone equally.

Between the lines: Most Americans still have a positive view of the police, regardless of how they feel about equal justice. But that's not true of Black Americans — nearly six out of 10 (57%) said they have unfavorable views of the police and law enforcement.

...

When Americans face the courts, the poll found a large gap in their experiences, with Black and Hispanic Americans more likely to depend on court-ordered attorneys than other groups.

• 43% of white Americans and 52% of Asian Americans said they've had their own attorneys when they or a family member has had to appear in court.
• By contrast, just 29% of Black Americans and 39% of Hispanic Americans had their own lawyers, while 49% of Black Americans and 43% of Hispanic Americans had court-ordered attorneys.
• That's important because public defenders are widely considered to be overworked and underfunded, and because researchers have become concerned in recent years that some public defenders might have their own forms of implicit bias.

En Banc Partisanship

Neal Devins and Allison have an article titled “Weaponizing En Banc,” forthcoming in The New York University Law Review. The abstract:

The federal courts of appeals embrace the ideal that judges are committed to rule of law norms, collegiality, and judicial independence. Whatever else divides them, these judges generally agree that partisan identity has no place on the bench. Consequently, when a court of appeals sits “en banc,” (i.e. collectively) the party affiliations of the three-judge panel under review should not matter. Starting in the 1980s, however, partisan ideology has grown increasingly important in the selection of federal appellate judges. It thus stands to reason (and several high-profile modern examples illustrate) that today’s en banc review could be used as a weapon by whatever party has appointed the most judges on any particular circuit. A weaponized en banc reflects more than just ideological differences between judges. We define the phrase to capture a “team mentality” on the courts of appeals – an us versus them – where the judges vote in blocs aligned by the party of the President who appointed them and use en banc review to reverse panels composed of members from the other team.

In this article, we test whether en banc review is now or ever has been weaponized. We make use of an original data set – the most comprehensive one of which we are aware – that tracks en banc decisions over six decades. Our findings are surprising in two very different ways. The bulk of our data indicates that rule of law norms are deeply embedded. From the 1960s through 2017, en banc review seems to have developed some sort of immunity from partisan behavior over time, and we unpack potential reasons why. But that important and long-lasting immunity could now be in danger. Our data from 2018-2020 show a dramatic and statistically significant surge in behavior consistent with the weaponizing of en banc. It is too soon to tell whether this is a temporary change or an inflection point indicating a more permanent shift. We consider both possibilities and, in so doing, highlight the critical role that en banc review plays in ascertaining judicial commitment to rule of law norms. The time may soon be upon us to confront the cost of en banc review in a regime where party identity frequently trumps other judicial impulses.

Notes on the Insurrection

Tom Dreisbach and Meg Anderson at NPR:

As a violent mob descended on the U.S. Capitol on Jan. 6, lawmakers and aides hid wherever they could, waiting for the military and police to arrive. But many of those who stormed the Capitol were military veterans themselves, who had once sworn to protect the Constitution. In fact, an NPR analysis has found that nearly 1 in 5 people charged over their alleged involvement in the attack on the U.S. Capitol appear to have a military history.

NPR compiled a list of individuals facing federal or District of Columbia charges in connection with the events of Jan. 6. Of more than 140 charged so far, a review of military records, social media accounts, court documents and news reports indicate at least 27 of those charged, or nearly 20%, have served or are currently serving in the U.S. military. To put that number in perspective, only about 7% of all American adults are military veterans, according to the U.S. Census Bureau.

Amy Worden and Marisa Iati at WP:

A Pennsylvania woman accused of helping to steal a laptop from House Speaker Nancy Pelosi’s office during the attack on the U.S. Capitol in Washington was ordered released from detention Thursday and placed in her mother’s custody.

Riley June Williams, 22, must stay in the home she shares with her mother and abide by other conditions of release, including avoiding contact with any witnesses or victims of the Jan. 6 Capitol storming. Federal Magistrate Judge Martin Carlson said he was releasing Williams in part because she had no prior criminal record, but he warned her that her mother, Wendy Williams, could be criminally charged if she fails to report to the court any violations of the conditions of release.

Unofficial transcript:

Miss Williams, when we met on Tuesday, one of the first things I did was advise you of your constitutional rights. And then I took steps to protect those rights by appointing aggressive, effective counsel to represent you here. That recital of rights wasn't just some hollow invocation of abstract principles. It was affirmation of the rights guaranteed to you by the United States Constitution. And it strikes me that that guarantee says something extraordinary and extraordinarily good about our Constitution. You are embraced by a presumption of innocence.

You are entitled to the assistance of counsel. You have a right to remain silent. All of these matters guaranteed to you by the Constitution, a constitution that protects the rights of those who are accused of transgressing society's rules. Some of the most basic of those rules are set forth in our Constitution. And one of the fundamental pillars of that constitution is the peaceful transition of power. That obligation that all citizens have to facilitate the peaceful transfer of power, it has been honored by generations of Americans for two hundred and thirty two years, it has become so commonplace that we often think very little of it.

But as President Reagan said in his inaugural, that process is a miracle. The allegations that bring you before me involve conduct that allegedly took place on January 6th of this year as Congress was endeavoring to fulfill its constitutional obligation to certify the will of the people and the votes of the Electoral College. You are cloaked in a presumption of innocence with respect to these matters. But the allegations set forth in the complaint relate to conduct that was antithetical to these constitutional values, conduct that involved a riot, a mob that sought to replace constitutional norms with the howling of a crowd.

We know now that the mob failed and the Constitution prevailed. The Constitution prevailed on January 6th of this year because Congress, stepping over the wreckage of its capital, met. and confirmed the vote of the Electoral College, setting the stage for the latest peaceful transition of power in this country yesterday. In the wake of those events on January 6th, it strikes me that the Constitution prevailed yet again in the wake of those events, the men and women of federal law enforcement, including the federal investigator and the assistant US attorney, the federal prosecutor involved in this case, fulfilled a duty that they had under the Constitution. They have sworn an oath under the Constitution to protect and defend that Constitution against all enemies, foreign and domestic.

And in pursuit of that constitutional obligation, a series of investigations have been launched into the matters that took place on January 6th. And those investigations have brought us here today together. It also occurs to me, Miss Williams, in a very personal and direct way, that the Constitution has is and will be prevailing in your case. As I noted a few moments ago when we first met, I invoked the Constitution on your behalf and I took steps to protect your constitutional rights by appointing counsel for you, your counsel.

Fulfilling the role of the Constitution contemplated has aggressively represented your interests here today. Wouldn't you agree, Miss Oelrich? [The judge at this point turns to the court appointed public defender in this case]. Wouldn't you agree, Miss Oelrich, that you have aggressively represented your client's interests here today?

Yes, Your Honor, I spent the last two days doing a lot of investigating. 

[And the judge turns to the prosecutor] On behalf of the United States, it is my view that over the past two days, you and your colleagues here and elsewhere have endeavored to fulfill your constitutional obligation to provide equal justice under the law to ensure the protection of individual rights and liberties while ensuring adherence to the rule of law.[

[And then the judge turns back to the defendant, Miss Williams, he says] so Miss Williams, in a very real and direct sense, you are being released today because the Constitution has prevailed, because your counsel has fulfilled her constitutional obligation and because the United States is also fulfilling its constitutional duty to strike hard blows but fair blows in the pursuit of justice. So, Miss Williams, I share that thought with you as you leave here today, that your freedom today, conditioned as it is by the orders that I have entered as a result of the prevailing of the Constitution.

And I'll leave you with this final thought, Miss Williams. The judge closes with us. The Constitution prevails here today and the Constitution will always prevail in this country.

Curbing Presidential Power

 At NYT, Peter Baker reports on bipartisan proposals from Harvard law professor Jack Goldsmith, an assistant attorney general under President George W. Bush, and Robert F. Bauer, a White House counsel under President Barack Obama.  Their ideas include:

• Provide more authority and protection for future special counsels investigating presidents or other high-level officials and have them report their findings to Congress and the public rather than to the Justice Department.
• Prohibit presidents from pardoning themselves and amend the bribery statute to make it illegal to use the pardon power to bribe witnesses or obstruct justice.
• Bar presidents from managing or supervising private businesses or establishing blind trusts for their financial assets and require any business in which they have an interest to file public reports.
• Authorize inspectors general to investigate and report on reprisals or intimidation of journalists.
• Revise the authorization of force passed after Sept. 11, 2001, to prohibit humanitarian military intervention without additional votes by Congress and limit the use of nuclear weapons to self-defense in extreme circumstances.
• Ensure that the attorney general makes decisions on prosecutions involving the president or presidential campaigns, not the F.B.I. director, as happened during the Hillary Clinton email case.

Trials

John Gramlich at Pew:

Trials are rare in the federal criminal justice system – and acquittals are even rarer.

Nearly 80,000 people were defendants in federal criminal cases in fiscal 2018, but just 2% of them went to trial. The overwhelming majority (90%) pleaded guilty instead, while the remaining 8% had their cases dismissed, according to a Pew Research Center analysis of data collected by the federal judiciary.

Most defendants who did go to trial, meanwhile, were found guilty, either by a jury or judge. (Defendants can waive their right to a jury trial if they wish.)

Put another way, only 320 of 79,704 total federal defendants – fewer than 1% – went to trial and won their cases, at least in the form of an acquittal, according to the Administrative Office of the U.S. Courts. These statistics include all defendants charged in U.S. district courts with felonies and serious misdemeanors, as well as some defendants charged with petty offenses. They do not include federal defendants whose cases were handled by magistrate judges, or the much broader universe of defendants in state courts. Defendants who enter pleas of “no contest” are also excluded.

Faithful Execution

At Harvard Law Review, Andrew Kent.Ethan J. Leib, and Jed Handelsman Shugerman have an article titled "Faithful Execution and Article II."  The abstract:

Article II of the U.S. Constitution twice imposes a duty of “faithful execution” on the President, who must “take Care that the Laws be faithfully executed,” and take an oath or affirmation to “faithfully execute the Office of President.” These clauses are cited often, but their background and original meaning have never been fully explored. Courts, the executive branch, and many scholars rely on one or both clauses as support for expansive views of presidential power, for example, to go beyond standing law to defend the nation in emergencies; to withhold documents from Congress or the courts; or to refuse to fully execute statutes on grounds of unconstitutionality or for policy reasons.

This Article is the first to explore the textual roots of these clauses from the time of Magna Carta and medieval England, through colonial America, and up to the original meaning in the Philadelphia Convention and ratification debates. We find that the language of “faithful execution” was for centuries before 1787 very commonly associated with the performance of public and private offices—especially those in which the officer had some control over the public fisc. “Faithful execution” language applied not only to senior government officials but also to a vast number of more ministerial officers, too. We contend that it imposed three core requirements on officeholders:

(1) diligent, careful, good faith, and impartial execution of law or office;

(2) a duty not to misuse an office’s funds and or take unauthorized profits; and

(3) a duty not to act ultra vires, beyond the scope of one’s office.

These three duties of fidelity look a lot like fiduciary duties in modern private law. This “fiduciary” reading of the original meaning of the Faithful Execution Clauses might have important implications in modern constitutional law. Our history supports readings of Article II of the Constitution, for example, that limit presidents to exercise their power in good faith, for the public interest, and not for reasons of self-dealing, self-protection, or other bad faith, personal reasons. So understood, Article II may thus place some limits on the pardon and removal authority. The history we present also supports readings of Article II that tend to subordinate presidential power to congressional direction, limiting presidential non-enforcement of statutes, and perhaps constraining agencies’ interpretation of statutes to pursue Congress’s objectives. Our conclusions undermine imperial and prerogative claims for the presidency, claims that are sometimes, in our estimation, improperly traced to dimensions of the clauses requiring the President's faithful execution.

Newsom Reprieves People on Death Row

Many posts have discussed the death penalty.

Dan Morain at CALmatters:

Gov. Gavin Newsom’s decision to grant a “reprieve” to 737 death row inmates rather than commutations reducing their sentences to life in prison without parole is significant for at least two immediate reasons:

• If he had issued a mass commutation, the California Supreme Court would have had the authority to review his decision to determine whether he had abused his authority. He has the power to issue reprieves.
• If he commuted their sentences, Newsom would have been required to give at least a 10-day notice to district attorneys in the counties where the convictions occurred. Prosecutors in turn would have been obliged to try to contact surviving family members of victims.

That notice requirement stems from a 2011 law signed by Gov. Jerry Brown, who went on to issue more commutations than any governor in history.

The legislation was a reaction to Gov. Arnold Schwarzenegger’s decision on his last day in office to shorten the sentence of former Speaker Fabian Nunez’s son, who had been serving a 16-year sentence for manslaughter in the slaying of a San Diego State University student in 2008. Nunez’s son, Esteban, since has been released.

• At the time, Brown’s spokesman said: “Victims and their families should not be blindsided when a request is made for a sentence to be commuted. This bipartisan bill ensures ample notification and a more transparent process.”

Reprieves don’t carry the weight of a commutation. They’re generally temporary, issued when an execution in imminent.

• Ward Campbell is a retired deputy attorney general who prosecuted death penalty cases and also defended governors’ use of clemency powers: “A reprieve is a delay. It doesn’t necessarily stop any cases. The convictions are intact. A new governor could lift the reprieve.”

Justice and Constitutional Design

At The Hill, Stuart M. Gerson  former Acting Attorney General; Peter D. Keisler former Acting Attorney General; and Carrie Cordero former Counsel to the Assistant Attorney General for National Security.

[W] hile federal law enforcement activities fall under the leadership and guidance of the Attorney General, the criminal justice system functions as an interconnected network of federal, state and local law enforcement, and federal and state judges and courts. Each official and officer in this system takes no oath to any elected official, but instead to upholding the law, and the constitution.

The decision to charge someone with a crime and bring the full weight of prosecutorial power must always be nonpartisan, and never borne of retribution, ambition or malice. Although selection of prosecutors and judges often involves political affiliation and political processes, those selections must be made in a way that brings confidence that justice will be administered without regard to politics. Americans should demand that the Justice Department be led by an Attorney General of sufficient qualifications who has been subject to the rigor and legitimacy of a Senate confirmation.

Above all, our national leaders and political partisans of all stripes must remember that we depend upon our Department of Justice to act in a fair and independent manner and with a constant eye on the rule of law. That department is not the law firm of the chief executive or any political appointee but, instead, is the representative of all the people and the abiding institutions of America.

Finally, no person is above the law. Lawyers can and will argue whether the mechanics of the criminal justice system can reach the highest office, and the details of who in government is subject to what legal process. Regardless of how the courts might resolve these types of questions, the constitution provides a system for removing corrupt officials from federal office. In any case, whether an inquiry as to removal from office derives from the current set of far-reaching investigations or otherwise, the exercise of this authority does not create a constitutional crisis; instead, it is an exercise of constitutional design.

The Federal Prosecutor

Attorney General Robert Jackson, December 1, 1940:

But outside of federal law each locality has the right under our system of government to fix its own standards of law enforcement and of morals. And the moral climate of the United States is as varied as its physical climate. For example, some states legalize and permit gambling, some states prohibit it legislatively and protect it administratively, and some try to prohibit it entirely. The same variation of attitudes towards other law-enforcement problems exists. The federal government could not enforce one kind of law in one place and another kind elsewhere. It could hardly adopt strict standards for loose states or loose standards for strict states without doing violence to local sentiment. In spite of the temptation to divert our power to local conditions where they have become offensive to our sense of decency, the only long-term policy that will save federal justice from being discredited by entanglements with local politics is that it confine itself to strict and impartial enforcement of federal law, letting the chips fall in the community where they may. Just as there should be no permitting of local considerations to stop federal enforcement, so there should be no striving to enlarge our power over local affairs and no use of federal prosecutions to exert an indirect influence that would be unlawful if exerted directly.

The qualities of a good prosecutor are as elusive and as impossible to define as those which mark a gentleman. And those who need to be told would not understand it anyway. A sensitiveness to fair play and sportsmanship is perhaps the best protection against the abuse of power, and the citizen's safety lies in the prosecutor who tempers zeal with human kindness, who seeks truth and not victims, who serves the law and not factional purposes, and who approaches his task with humility.

Rosenstein on Justice

Deputy Attorney General Rod J. Rosenstein Delivers Remarks at the Bar Association of Montgomery County’s Law Day CelebrationRockville, MD ~ Friday, May 4, 2018

 The interplay among the branches is incredibly complex, and our Constitution contemplates numerous checks and balances.

In the executive branch, we take an oath. We pledge to support and defend the Constitution of the United States against all enemies, foreign and domestic. We promise to bear true faith and allegiance to the same. We attest that we take this obligation freely, without any mental reservation or purpose of evasion. And we commit to well and faithfully execute the duties of the office, so help me God.

Faithfully enforcing the law is not about following a simple set of instructions. As the great champion of the law Robert H. Jackson put it, “law enforcement is not automatic.” Enforcing the law requires discretion and judgment.

When carrying out our enforcement duties, the executive branch is required to enforce the law as written by the legislature, and as interpreted by the judiciary.

At the Department of Justice, our duty is in our name. Attorney General John Ashcroft famously said that we are the only cabinet department with a name that articulates a moral value.
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Our Bill of Rights, containing the first ten amendments, is often regarded as the pride of American government. But the Constitution originally had no Bill of Rights. The issue was considered during the Constitutional Convention in Philadelphia in 1787, but the Constitution was ratified without it.

The Framers were more concerned about our government’s structure than a written guarantee of rights, because a written guarantee is only as powerful as the system in place to protect it. Our constitutional structure, and the separation of powers embodied in that structure, represents our government’s defining feature.

Justice Scalia explained that “it is those other humdrum provisions—the structural, mechanistic portions of the Constitution that pit, in James Madison’s words, ‘ambition against ambition,’ and make it impossible for any element of government to obtain unchecked power— that convert the Bill of Rights from a paper assurance to a living guarantee.”

The Founders dispersed power both horizontally and vertically. The three branches of the federal government check one another. The states and the federal government check one another. And the people check both the federal and the state governments.

Our system of government is not self-executing. It relies on wisdom and self-restraint. In a democratic republic, liberty is protected by cultural norms as well as by constitutional text.

Lawyers and judges bear great responsibility for implementing and explaining those principles. The further we get from the founding generation, the less we appreciate how much everything depends on people rather than paper.