Category Archives: Litigation in the News

Trump may have had the second worst day of his political life yesterday; documents

Donald J. Trump, the 45th President of the United States of America, had a bad day yesterday. New York Magazine published highlights from Michael Wolff’s soon to be published book, Fire and Fury: Inside Trump’s White House [Amazon] here and Trump’s reaction to the revelations contained therein, specifically those attributed to Steve Bannon here.

On a related note, Paul Manafort’s attorneys argued in a complaint filed yesterday that the DOJ order establishing Mueller’s investigation is overly broad and not permitted under Justice Department regulations. The 17-page complaint argues that the Russia special counsel exceeded authority DOJ gave him in May to investigate any links or coordination between the Russian government and the Trump campaign — and that DOJ granted Mueller too much power in the first place by giving him the green light to go after “any matters that arose or may arise directly from the investigation.” Here’s the complaint.

What might be the worst day in Trump’s political life? Perhaps election night if you believe Michael Wolff’s account of the evening. — Joe

Corpus linguistics applied to the Constitution’s emoluments clauses

From the abstract for James C. Phillips and Sara White’s The Meaning of the Three Emoluments Clauses in the U.S. Constitution: A Corpus Linguistic Analysis of American English, 1760-1799:

This paper tackles the meaning of emolument(s) in the founding era using the first (that we can find) full-blown corpus linguistic analysis of constitutional text in American legal scholarship. While at least three others (Randy Barnett, Jenn Mascott, and Joel Hood) have done corpus linguistics-like analysis in constitutional interpretation, none have used all of the tools of a corpus (collocation, clusters/n-grams, frequency data, and concordance lines) and used a sufficiently large and representative corpus of the relevant time period — here the underlying data of the soon-to-be released Corpus of Founding Era American English (COFEA) — to make confident conclusions about probably founding-era meaning.

The article does not discount other methodologies of constitutional exegesis; nor does the article claim to prove the meaning of any of the Constitution’s invocation of the word emolument, only make some meanings more probable than others; nor does the article take sides on whether the President has violated the Constitution. But the article does add another piece to the emolument puzzle, and provides a more rigorous, relevant, transparent, and accurate methodology than scholars have so far employed in investigating the original public meaning of the various emoluments clauses. In sum, this article is narrower than most on the topic, but within that niche it dives deeper than any have so far gone.

We constructed three corpora for our analysis that covered 1760-1799: one of books, pamphlets and broadsides from a mix of ordinary and elite authors (53.4 million words), one correspondence of six major “Founders” (43.9 million words), and one of legal materials (48.6 million words). From each we sampled about 250 instances of the use of the term emolument. We found that the broad, general sense of emolument was the most common compared to the narrow, office/public employment sense in the “ordinary” corpus (54.6% to 34.1%, 11.2% ambiguous), but that the general sense was less common than the narrow sense in the “elite” corpus (29.3% to 64.8%, 5.9% ambiguous) and the “legal” corpus (25.6% and 68.7%, 5.7% ambiguous). When just looking at instances in our sample where the recipient is an office, we found the narrow sense dominated: “ordinary” corpus (84.2%), “elite” corpus (88.0%), “legal” corpus (94.2%). And the narrow sense was even more common when looking in the context of emoluments from government: “ordinary” corpus (86.7%), “elite” corpus (92.6%), and “legal” corpus (97.3%).

This paper concludes that the Congressional and Presidential Emoluments Clauses would have most likely been understood to contain a narrow, office or public-employment sense of emolument. But the Foreign Emoluments Clause is more ambiguous given its modifying language “of any kind whatever.” Further research into that phrase is needed.

Interesting. — Joe

First lawsuit opposing President Trump’s monuments proclamations filed [text]

Yesterday, President Trump modified prior proclamations for the Grand Staircase-Escalante National Monument [text] and the Bears Ears National Monument [text] that significantly reduce the size of each monument. Already, one complaint for injunctive and declaratory relief has been filed by environment groups including The Wilderness Society and the Sierra Club. From the filing:

President Trump’s unlawful reversal of Grand Staircase-Escalante’s full protective reach exceeds his authority under the Antiquities Act. The Act authorizes Presidents to create national monuments; it does not authorize Presidents to abolish them either in whole or in part, as President Trump’s action attempts to do.

President Trump’s action even purports to overturn congressional legislation that added lands to the monument.

Accordingly, the President’s decision exceeds his authority under the Antiquities Act, violates the separation of powers between Congress and the President and the “take Care” clause of the U.S. Constitution, and is therefore unlawful.

— Joe

Special Counsel seeks to deny Manafort’s current motion to modify conditions of his release (text)

The Special Counsel’s team has evidence that Manafort failed to tell the government that he was ghost-writing an op-ed piece about his work in the Ukraine as late as Nov. 30th. From the Special Counsel’s court filing:

Even if the ghostwritten op-ed were entirely accurate, fair, and balanced, it would be a violation of this Court’s November 8 Order if it had been published. The editorial clearly was undertaken to influence the public’s opinion of defendant Manafort, or else there would be no reason to seek its publication.

Manaford was working on the op-ed piece with “a longtime Russian colleague” who is “assessed to have ties to Russian intelligence,” according to the special counsel’s court filing.

Special Counsel indicts Michael Flynn for lying (text)

Former National Security Adviser Michael Flynn “willfully and knowingly” made false statements, according to a lawsuit by Special Counsel Robert Mueller. According to the indictment, Flynn falsely stated to the FBI that he didn’t ask the Russian ambassador to refrain from escalating the situation in response to sanctions the U.S. had imposed against the country, and that he didn’t recall the ambassador subsequently telling him Russia had chosen to moderate its response to those sanctions. Flynn also was charged with falsely stating he didn’t ask the Russian ambassador to delay the vote on or defeat a pending United Nations Security Council resolution and that the ambassador subsequently never described Russia’s response. Business Insider has the indictment. — Joe

Understanding and preserving sanctuary cities in the age of Trump

From the abstract of Understanding ‘Sanctuary Cities,’ Boston College Law Review, Forthcoming, by Christopher Lasch et al:

This Article is a collaborative project authored by law professors specializing in the intersection between immigration and criminal law. In it, we set forth the central features of the Trump administration’s mass deportation plans and his recently-announced campaign to “crack down” on “sanctuary cities.” We then outline the diverse ways in which localities have sought to protect their residents from deportation by refusing to participate in the Trump immigration agenda. Such initiatives include limiting compliance with immigration detainers, precluding participation in joint operations with the federal government, and preventing immigration agents from accessing local jails. Finally, we analyze the legal and policy justifications for sanctuary that local jurisdictions have advanced with increasing intensity since Trump’s election. These insights have important implications for how sanctuary cities are understood and preserved in the age of Trump.

As a complement to this Article, we have created a public online library of sanctuary policies that includes all the policies cited here and many more we considered in our research.

— Joe

Trump’s tweets in court

Three Washington Post stories cover judicial notice of President Trump’s tweets on topics litigated in court: sanctuary cities, travel ban and transgender military ban cases. — Joe

DC court blocks transgender ban in military [Text of Ruling]

A federal judge issued an injunction Monday against President Donald Trump’s ban against transgender people serving in the military. The Court’s order blocks the ban as it pertains to current service members and the recruitment of a transgender individuals, but it keeps in place the president’s prohibition on coverage for sexual-reassignment surgery. Here’s the text of the ruling. — Joe

Read the charges against Paul Manafort

Manafort, the president’s former campaign chairman, and his longtime associate Rick Gates, surrendered to the FBI on Monday. The special counsel, Robert S. Mueller III, said Manafort laundered more than $18 million to buy properties and services. Read the charges here. — Joe

CRS report: Overview of “Travel Ban” Litigation and Recent Developments

From Overview of “Travel Ban” Litigation and Recent Developments (Oct. 23, 2017 LSB10017):

This Sidebar provides an overview of the series of three executive actions (the first two taking the form of executive orders, and the third issued as a presidential proclamation) commonly referred to as the “Travel Ban,” which restrict the entry of specified categories of non-U.S. nationals (aliens) into the United States, and the litigation related to those executive actions.

To date, none of the three iterations of the Travel Ban has fully gone into effect as a result of court orders limiting their implementation. The most recent version of the Travel Ban did not alter an earlier version’s 120-day pause on refugee admissions into the United States (currently set to expire on October 24). However, the newest iteration modified the scope and duration of travel restrictions on foreign nationals from five countries covered by earlier versions of the Travel Ban (Iran, Libya, Somalia, Syria, and Yemen) and imposed new travel restrictions on certain aliens from three additional countries (Chad, North Korea, and Venezuela).

For background see Overview of the Federal Government’s Power to Exclude Aliens (Sept. 27, 2017 R44969). — Joe

CRS Report: Congressional Redistricting Law: Background and Recent Court Rulings

Following up on LLB’s SCOTUS tackles constitutionality of partisan gerrymandering, here’s a snip from the summary for Redistricting Law: Background and Recent Court Rulings (March 23, 2017 R44798):

In addition to various state processes, the legal framework for congressional redistricting involves constitutional and federal statutory requirements. Interpreting these requirements, in a series of cases and evolving jurisprudence, the U.S. Supreme Court has issued rulings that have significantly shaped how congressional districts are drawn and the degree to which challenges to redistricting plans may succeed. As the 2020 round of redistricting approaches, foundational and recent rulings by the Court regarding redistricting are likely to be of particular interest to Congress. This report analyzes key Supreme Court and lower court redistricting decisions addressing four general topics: (1) the constitutional requirement of population equality among districts; (2) the intersection between the Voting Rights Act and the Equal Protection Clause; (3) the justiciability of partisan gerrymandering; and (4) the constitutionality of state ballot initiatives providing for redistricting by independent commissions.

— Joe

CRS Report: Overview of the Federal Government’s Power to Exclude Aliens

From the summary of Overview of the Federal Government’s Power to Exclude Aliens (Sept. 27, 2017 R 44969):

The Supreme Court has determined that inherent principles of sovereignty give Congress “plenary power” to regulate immigration. The core of this power—the part that has proven most impervious to judicial review—is the authority to determine which aliens may enter the country and under what conditions. The Court has determined that the executive branch, by extension, has broad authority to enforce laws concerning alien entry mostly free from judicial oversight. Two principles frame the scope of the political branches’ power to exclude aliens. First, nonresident aliens abroad cannot challenge exclusion decisions because they do not have constitutional or statutory rights with respect to entry. Second, even when the exclusion of a nonresident alien burdens the constitutional rights of a U.S. citizen, the government need only articulate a “facially legitimate and bona fide” justification to prevail against the citizen’s constitutional challenge.

The merits of these so-called “Travel Ban” cases raise significant questions about the extent to which the rights of U.S. citizens limit the executive power to exclude aliens. It seems relatively clear that, under existing jurisprudence, the “facially legitimate and bona fide” standard should govern the Establishment Clause claims against the revised executive order. However, Supreme Court precedent does not clarify whether that standard contains an exception that might permit courts to test the government’s proffered justification for an exclusion by examining the underlying facts in particular circumstances. Nor does Supreme Court precedent resolve whether the standard governs U.S. citizens’ statutory claims against executive exercise of the exclusion power, or even whether such statutory claims are cognizable. The outcome of the Travel Ban cases would likely turn upon these issues, if the Supreme Court were to decide the cases on the merits rather than on a threshold question such as mootness (a key issue in light of a presidential proclamation modifying the entry restrictions at issue in the cases).

— Joe

SCOTUS tackles constitutionality of partisan gerrymandering

Yesterday, the Supreme Court heard oral arguments in Gill v. Whitford. Here’s the transcript. See also Amy Howe’s Argument analysis: Cautious optimism for challengers in Wisconsin redistricting case? on SCOTUSblog and Professor Ruthann Robson’s SCOTUS Hears Arguments on Constitutionality of Partisan Gerrymandering on Constitutional Law Prof Blog. — Joe

Public Knowledge files amicus brief in ASTM v. Public Resource

From the press release:

Public Knowledge filed an amicus curiae brief in the case ASTM v. Public Resource. The case concerns Public Resource’s copying of model building codes and educational testing codes, which had been enacted into federal law and regulations. The standards organizations sued Public Resource for copyright infringement based on the copying of those legally-enforceable codes. The case is currently on appeal before the U.S. Court of Appeals for the District of Columbia Circuit. The case is expected to be argued next year.

The amicus brief, filed on behalf of a coalition of 62 organizations, companies, former government officials, librarians, innovators, and professors of law, asks the appeals court to permit Public Resource’s copying of the text of model codes enacted into law and not find it to be a copyright infringement.

Text of amicus curiae brief. Text of complaint in ASTM v. Public Resource.

H/T to beSpacific. — Joe

Sixth Circuit holds against University of Cincinnati in Title IX case

The Sixth Circuit Court of Appeals decided the case of John Doe v. University of Cincinnati (16-4693) today.  The case concerns whether a preliminary injunction against a penalty of suspension imposed in a Title IX case should be upheld.  The Court agreed with Doe that his due process rights were violated as he had no way to cross examine the accuser in his case.  The Court notes that educational institutions are not in the judicial business, meaning that their hearings do not have to model trials and their rules of procedure.  Nonetheless, they have to provide a level of due process to the accused.  The fact that the University failed “to provide any form of confrontation of the accuser made the proceeding against John Doe fundamentally unfair.”

The process the University subscribes to in its administrative hearings for Title IX violations allows for accuser and accused to submit written questions which the administrative committee would review and ask each of the parties.  This did not happen in this hearing because the accuser, Jane Roe, did not attend the hearing.  University rules did not, in fact, require any of the parties to attend.  The panel made its decision on the basis of the written statements each party submitted, the Title IX Officer’s report, and statements Doe made in his defense at the hearing.  They decided to impose a two year suspension that was later reduced to one year on administrative appeal.

Doe took his case to the District Court which found in his favor.  The University could only decide based on the submissions from each party, basically one’s word against another.  The Court stated that cross examination was “essential” to due process in these circumstances.  The District Court also noted that the University’s code allowed for notarized statements from the accuser.  Roe’s statements were not notarized and the Court said that this significant departure from the institution’s own procedures could also amount to a violation of due process.

The University appealed to the Sixth Circuit which agreed with the District Court and upheld the preliminary injunction against suspension.  The Court largely agreed with the District Court’s reasoning.  The Court of Appeals set out the required process:

While the exact outlines of process may vary, universities must “at least” provide notice of the charges, an explanation of the evidence against the student, and an opportunity to present his side of the story before an unbiased decision maker. Id. (citing Heyne v. Metro. Nashville Pub. Sch., 655 F.3d 556, 565–66 (6th Cir. 2011)).

Both parties agreed that Doe’s property interest (not being suspended) is significant.  The Court said that the right to cross examine in one form or another is required by due process in the most serious of cases and the accusation of sexual misconduct is one of these cases.

Given the parties’ competing claims, and the lack of corroborative evidence to support or refute Roe’s allegations, the present case left the ARC panel with “a choice between believing an accuser and an accused.” Flaim, 418 F.3d at 641. Yet, the panel resolved this “problem of credibility” without assessing Roe’s credibility. Id. (citation omitted). In fact, it decided plaintiff’s fate without seeing or hearing from Roe at all. That is disturbing and, in this case, a denial of due process.

The Court held that the cross examination need not take the form of direct confrontation.  The question and answer format identified in the University Rules would work as would other variations such as appearances via Skype.  At the very least, the accuser will have to participate somewhat more actively in the hearing.

I wrote a book review recently of Laura Kipnis’ book, Unwanted Advances:  Sexual Paranoia Come to Campus, which is about this very issue.  Professor Kipnis highlighted some of the more egregious violations of due process in the book’s stories.  It’s well worth reading in light of this decision.

Mark

California files a federal lawsuit to block Trump’s wall along the Mexico border [text of complaint]

Yesterday California Atty. Gen. Xavier Becerra filed a Complaint for Declaratory and Injunctive Relief [text of complaint][press release] on behalf of the state that will challenge President Trump’s proposal to build a wall at the U.S.-Mexico border. The lawsuit, which includes the California Coastal Commission as a plaintiff, states its purpose:

The People bring this action to protect the State of California’s residents, natural resources, economic interests, procedural rights, and sovereignty from violations of the United States Constitution, the National Environmental Policy Act and the Administrative Procedure Act occurring as a result of the actions of the United States of America, the United States Department of Homeland Security (“DHS”), former DHS Secretary John Kelly in his official capacity, Acting DHS Secretary Elaine Duke in her official capacity, the United States Customs and Border Protection (“CBP”), and Acting CBP Commissioner Kevin K. McAleenan in his official capacity (together Defendants”), with respect to the planning and construction of a border wall and related border barrier projects along the southern border of the United States, including sigificant projects (“Border Wall” or “Border Wall Projects”).

For background, see Patrick McGreevy and Jazmine Ulloa, California to sue Trump administration over plan for U.S.-Mexico border wall, Los Angeles Times, Sept. 20, 2017. — Joe

New York v. Trump: Text of attorneys general complaint in DACA lawsuit

Democratic attorneys general filed the suit Wednesday in retaliation to the administration’s announcement a day earlier that it would end the program created by former President Barack Obama, unless Congress provided a legislative fix by March 2018. From the text of the complaint for declaratory and injunctive relief:

The States of New York, Massachusetts, Washington, Connecticut, Delaware, District Of Columbia, Hawaii, Illinois, Iowa, New Mexico, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, and Virginia (the “States”) bring this action to protect the States—including their residents, employers, regulatory systems, and educational institutions—against the illegal actions of the President and the federal government.

Ending DACA, whose participants are mostly of Mexican origin, is a culmination of President’s Trump’s oft-stated commitments—whether personally held, stated to appease some portion of his constituency, or some combination thereof—to punish and disparage people with Mexican roots. The consequence of the President’s animus-driven decision is that approximately 800,000 persons who have availed themselves of the program will ultimately lose its protections, and will be exposed to removal when their authorizations expire and they cannot seek renewal.

— Joe

ACLU seeks relief from Trump’s transgender ban [Text of complaint]

In response to a presidential directive banning transgender individuals from military service, the ACLU has filed a complaint for declaratory and injunctive relief on the grounds that the transgender ban violates the constitutional guarantees of equal protection and substantive due process by singling out transgender individuals for unequal and discriminatory treatment. — Joe

Two LGBTQ-rights groups respond to Trump’s transgender ban with lawsuit (Complaint)

The National Center for Lesbian Rights (NCLR) and GLBTQ Legal Advocates & Defenders (GLAD) filed the suit, Doe v. Trump, in response to President Donald Trump’s recent tweets calling for a full ban on transgender people serving in the United States military. The complaint, which can be viewed here, rests on claims of equal protection, due process and estoppel, based on the inequity of the reversal of military policy after thousands of service members followed protocol and informed their chain of command that they are transgender. — Joe

City of Chicago sues DOJ over sanctuary cities conditions (Text of Complaint)

On July 25, 2017, the DOJ announced that it will no longer award criminal justice grants to cities and states that refuse to cooperate with  federal agents in detaining undocumented immigrants. This week, the City of Chicago sued the DOJ over the Department’s new conditions. [Text of Complaint] See Sanctuary jurisdictions will only receive DOJ criminal justice grant funds if cities and states cooperate in detaining undocumented immigrants, LLB, July 27, 2017.

In his Constitutional Law Prof Blog post, Steven D. Schwinn writes “Chicago challenges DOJ-added conditions on the Byrne Justice Assistance Grant program that, it says, exceed DOJ authority, violate federalism principles, and interfere with the City’s long-standing and effective Welcoming Policy, now codified as the Welcoming City Ordinance.” — Joe