There is a lot of buzz going on in the press because Twin Peaks is coming back on the air. I wonder how many people know that Scooby-Doo and the gang visited the Red Room in one of the episodes of Scooby-Doo:Mystery Incorporated? The clip below features not only the dancing man but a healthy dose of Ancient Aliens and some conspiracy theory. What can I say but Nibiru. Who thinks up this stuff?
In the United States, obstruction of justice is a crime that arises when someone tries to prevent, impede, or influence the administration of justice — a cloud that now hangs over President Trump’s firing of former FBI director Comey. See, e.g., Notre Dame law prof Jimmy Gurulé’s May 11, 2017 CNN commentary, Could Trump have obstructed justice? Professor Gurulé suggests readers read the law and compare it to the events unfolding in Washington because it appears that the actions of Donald Trump meet some of the required criteria for obstruction of justice.
“The general federal obstruction of justice provisions are six: 18 U.S.C. 1512 (tampering with federal witnesses), 1513 (retaliating against federal witnesses), 1503 (obstruction of pending federal court proceedings), 1505 (obstruction of pending congressional or federal administrative proceedings), 371 (conspiracy), and contempt,” quoting from the CRS report, Obstruction of Justice: An Overview of Some of the Federal Statutes That Prohibit Interference with Judicial, Executive, or Legislative Activities, (Apr. 17, 2014, RL34303). The report adds “there are a host of other statutes that penalize obstruction by violence, corruption, destruction of evidence, or deceit.” — Recommended. — Joe
Congressional Lawmaking: A Perspective On Secrecy and Transparency (Nov. 30, 2011, R42108) outlines briefly the historical and inherent tension between secrecy and transparency in the congressional process and identifies various lawmaking stages typically imbued with closed door activities. From the report:
Openness is fundamental to representative government. Yet the congressional process is replete with activities and actions that are private and not observable by the public. How to distinguish reasonable legislative secrecy from impractical transparency is a topic that produces disagreement on Capitol Hill and elsewhere. Why? Because lawmaking is critical to the governance of the nation. Scores of people in the attentive public want to observe and learn about congressional proceedings. … Yet secrecy is an ever-present part of much legislative policymaking; however, secrecy and transparency are not “either/or” constructs. They overlap constantly during the various policymaking stages.
“Of the many ways that the U.S. House of Representatives fails to mirror the nation as a whole, here’s an underrated one: The educational attainment of our representatives far surpasses that of the electorate,” writes Ben Myers and Peter Olsen-Phillips for The Chronicle of Higher Education in In Congress, Even Lawmakers’ Degrees Are a Partisan Issue How higher education is shaping the House of Representatives. This article provides a demographic analysis of the levels of educational attainment of House members from the 103rd Congress to the 115th Congress in an interactive format. Interesting. — Joe
The FBI’s Domestic Investigations and Operations Guide (DIOG) was first issued to help implement the Attorney General’s Guidelines for Domestic FBI Operations that were issued earlier in 2008. The original DIOG was issued on Dec. 16, 2008. The most recent version of the Guide is the version update of Oct. 16, 2013 and was posted here on Sept. 14, 2016. — Joe
According to this infographic, the gap is pretty wide. For example, requests for access to materials are 28% higher than faculty think and librarians are 74% more likely than faculty to say access to technology is a crucial function to the library. The infographic is based on McGraw-Hill’s 2016 survey of more than 1,000 librarians and faculty members. Participants were asked questions regarding library use, budget, technology, and how they see libraries serving their communities. The survey results, found in McGraw-Hill’s white paper, The Changing Role of Libraries [free, registration required], reveal that librarians and faculty are not aligned as to what they believe makes libraries valuable. — Joe
We’re probably going to hear a lot about the Trump administration’s attempts to claim executive privilege in the coming months as the Russia probe progresses. By citing Comey’s private conversations in Trump’s termination letter to Comey, for example, has President Trump undermined any future claims of executive privilege to them?
Quoting from the CRS report, Presidential Claims of Executive Privilege: History, Law, Practice, and Recent Developments (Dec. 15, 2014 R42670):
Presidential claims of a right to preserve the confidentiality of information and documents in the face of legislative demands have figured prominently, though intermittently, in executive-congressional relations since at least 1792. Few such interbranch disputes over access to information have reached the courts for substantive resolution.
Supreme Court decisions have left considerable gaps in the law of presidential privilege. Among the more significant issues left open include whether the President must have actually seen or been familiar with the disputed matter; whether the presidential privilege encompasses documents and information developed by, or in the possession of, officers and employees in the departments and agencies of the executive branch, outside of the Executive Office of the President; whether the privilege encompasses all communications with respect to which the President may be interested or is confined to presidential decision making and, if so, whether it is limited to a particular type of presidential decision making; and precisely what kind of demonstration of need must be shown to overcome the privilege and compel disclosure of the materials.
It can be argued that Congress has significantly more constitutional power than we are accustomed to seeing it exercise and that by failing to make effective use of its power, Congress has invited the other branches to fill the vacuum, resulting in a constitutional imbalance. Sharing this point of view, Josh Chafetz’s Congress’s Constitution, 160 University of Pennsylvania Law Review 715 (2012) “considers a number of constitutional tools that individual houses – and even individual members – of Congress, acting alone, can deploy in interbranch conflicts.” From the law review’s abstract:
Although the congressional powers discussed in this Article are clearly contemplated in constitutional text, history, and structure, many of them have received only scant treatment in isolation. More importantly, they have never before been considered in concert as a set of tools in an ongoing interbranch power struggle. This holistic perspective is necessary because these powers in combination are much greater than the sum of their parts.”
Borrowing terminology from international relations scholarship, this Article groups the congressional powers under discussion into “hard” and “soft” varieties. Congressional hard powers are tangible and coercive; the hard powers discussed in this Article are the power of the purse and the contempt power. Congressional soft powers are intangible and persuasive; soft powers considered by this Article include Congress’s freedom of speech and debate, the houses’ disciplinary power over their own members, and their power to determine the rules of their proceedings. Each of these powers presents opportunities for Congress to enhance its standing with the public, and thereby enhance its power. This Article aims to demonstrate both the ways in which these powers are mutually supporting and reinforcing and the ways in which Congress underutilizes them. In doing so, the Article examines a number of examples of congressional use of, and failure to use, these powers, including the release of the Pentagon Papers, the 1995–1996 government shutdowns and 2011 near-shutdown, the 2007–2009 contempt-of-Congress proceedings against White House officials, and the use of the filibuster, among others.
See also, Peter Shane’s When Inter-branch Norms Break Down: Of Arms-for-Hostages, ‘Orderly Shutdowns,’ Presidential Impeachments, and Judicial ‘Coups’. 12 Cornell Journal of Law and Public Policy, 503 (2004). — Joe
In Learning Analytics and the Academic Library: Professional Ethics Commitments at a Crossroad, College & Research Libraries, Forthcoming, Kyle Jones and Dorothea Salo discuss learning analytics and the ways academic libraries are beginning to participate in wider institutional learning analytics initiatives. The authors address how learning analytics implicates professional commitments to promote intellectual freedom; protect patron privacy and confidentiality; and balance intellectual property interests between library users, their institution, and content creators and vendors. From the article’s conclusion:
Though pursuing LA [learning analytics] may lead to good outcomes for students and their institutions, higher education and the library profession still face an ethical crossroads. LA practices present significant conflicts with the ALA’s Code of Ethics with respect to intellectual privacy, intellectual freedom, and intellectual property rights. We recommend that librarians respond by strategically embedding their values in LA through actively participating in the conversations, governance structures, and policies that ultimately shape the use of the technology on their respective campuses.
The Protection of Classified Information: The Legal Framework (Jan. 10, 2013, RS21900) provides an overview of the relationship between executive and legislative authority over national security information, and summarizes the current laws that form the legal framework protecting classified information, including current executive orders and some agency regulations pertaining to the handling of unauthorized disclosures of classified information by government officers and employees. The report also summarizes criminal laws that pertain specifically to the unauthorized disclosure of classified information, as well as civil and administrative penalties. — Joe
Public Knowledge: Access and Benefits, (Information Today, Inc., 2016), “edited by Miriam A. Drake (now deceased) and Donald T. Hawkins, is the first book in years to explore trends and issues for researchers and organizations that rely on U.S. public information. More than a dozen topic experts, information specialists, and government documents librarians discuss the challenges inherent in collecting, preserving, updating, and disseminating a deluge of information generated daily by public sources.
“They describe agencies at the forefront of managing the information, explore the role of the federal government and its corps of information professionals, and highlight how public data are being consumed by a surprising range of stakeholders in the digital information age. They remind us of the value and diversity of public information, and of the imperative to make it readily available to all American citizens, to whom it belongs. No reader interested in the latter topic can afford to miss Barbie Keiser s closing chapter on open government, Big Data, and the future of public information.”
The FBI director is appointed by the President by and with the advice and consent of the Senate. The position of FBI Director has a fixed 10-year term, and the officeholder cannot be reappointed, unless Congress acts to allow a second appointment of the incumbent. There are no statutory conditions on the President’s authority to remove the FBI Director. FBI Director: Appointment and Tenure (Feb. 19, 2014, R41850) provides an overview of the development of the process for appointing the FBI director. — Joe
“This is a tense and uncertain time in the nation’s history. The president of the United States, who is no more above the law than any other citizen, has now decisively crippled the F.B.I.’s ability to carry out an investigation of him and his associates. There is no guarantee that Mr. Comey’s replacement, who will be chosen by Mr. Trump, will continue that investigation; in fact, there are already hints to the contrary.” — New York Times editorial, Donald Trump’s Firing of James Comey (May 9, 2017)
On May 9, 2017, President Trump fired former FBI director James Comey. Here’s a document that includes President Trump’s letter to Director Comey, AG Sessions’ letter to President Trump, and the DOJ legal analysis and recommendation to fire Comey. See also, Annotated letter: The Trump administration’s case for firing FBI Director James Comey, Los Angeles Times, May 10, 2017.
In the wake of that news, Democrats in Congress — and a few Republicans — rose to demand a special prosecutor for the Russia investigation last night. More Than 100 Lawmakers Respond to Comey Firing by Calling for Independent Russia Probe, Mother Jones, May 9, 2017. Some people went even further.
Last evening Laurence H. Tribe, the Carl M. Loeb University Professor and Professor of Constitutional Law at Harvard Law School called on House Speaker Ryan to begin an impeachment proceeding immediately in this tweet: “Not even a special counsel whom Trump can sack will suffice. If Ryan has any integrity at all he MUST initiate an impeachment inquiry NOW!” Tribe followed up this morning, tweeting “This fox is emptying the henhouse. Trump has crossed the line. He is covering up high crimes and misdemeanors” and in another tweet Tribe wrote “It’s now up to Congress to save the Constitution by initiating impeachment proceedings. Trump can’t say “You’re fired” to the House of Reps.”
Special prosecutor or impeachment inquiry, what do you think? — Joe
End Note: An LLB backgrounder on impeachment resources can be found here.
Like many technological tools, Twitter does not come with an instruction manual. To help both government executives who must decide whether Twitter is a useful tool for their organizations and frontline managers who will create and administer the Twitter account, Ines Mergel has written Working the Network: A Manager’s Guide for Using Twitter in Government, detailing the benefits—and risks—of hosting a Twitter feed, as well as the specifics on how to maintain a Twitter feed to achieve optimum results. From the executive summary:
Twitter updates are seen as public conversations and are increasing not only transparency and potentially accountability, but can also—when used appropriately—lead to increased inclusion of public opinion in policy formulation through information aggregation processes. Twitter can be used effectively to involve a large number of citizens and create conversations with an engaged, networked public. The outcome of these conversations can be new insights and even innovations in the public sector including suggestions on how to make government more effective, or rapidly accelerating emergency responses that help to improve public safety.
Perhaps someone will give President Trump this Twitter guide. — Joe
George Rutherglen describes the intricacies of U.S. constitutional law on the rights of aliens in The Rights of Aliens Under the United States Constitution: At the Border and Beyond. The article identifies three general tendencies that bear on recognition of these rights: (1) status as a citizen or alien, and if the latter, what status under the immigration laws; (2) where the activity violating the right took place, either inside, outside, or at the border of the U.S.; and (3) the text and nature of the right, including its recognition in other countries. From the abstract:
None of these factors yield a determinate answer to every case involving rights of aliens (or citizens for that matter), but they do organize the complex web of constitutional decisions on these issues. Those complexities have been most controversial in recent years in cases involving immigration and the war on terror. The lesson to be drawn from these cases is that the strength of constitutional rights, especially in the international context, depends on the actions by the political branches to make those rights truly effective. The article concludes by examining how, even in this limited role, constitutional rights might operate to check the immigration orders recently issued by President Trump.
Kushner Companies’ recent pitch to wealthy Chinese investors to consider investing $500,000 in a New Jersey luxury apartment complex as a means to acquiring EB-5 visas puts foreign investor visas back in the spotlight. Congress created the EB-5 Program in 1990 to stimulate the U.S. economy through job creation and capital investment by foreign investors. Interest in the program grew during the Great Recession as a vehicle for acquiring capital investments in the real estate market. Competition for the annual allotment of 10,667 visas has been fierce.
According to the CRS report, Foreign Investor Visas: Policies and Issues (Jan. 27, 2010, RL33844) investor visas offered by the United States operate on the principle that foreign direct investment into the United States should spur economic growth in the United States. “To attract foreign investors, research indicates that temporary migrants are motivated most significantly by employment and wage prospects, while permanent migrants are motivated by professional and social mobility. Theoretically, however, it is unclear to what extent potential migration provides additional incentive for investment activity. Investors from developed countries may sometimes lack incentive to settle in the United States since they can achieve foreign direct investment (FDI) and similar standards of living from their home country. Yet, in cases where foreign investors have been attracted, the economic benefits have been positive and significant,” quoting from the CRS report. — Joe
The Digital Public Library of America is searching for an executive director Details here.
The Rock and Roll Hall of Fame is searching for a librarian. Details here.
The Washington Post has published the full transcript here. — Joe
In Surveying the Law of Emojis, Eric Goldman identifies three ways the emoji revolution will impact the law:
First, questions about what emojis mean will arise in a wide range of legal doctrines, from criminal law to contracts. Our standard interpretative tools generally can handle new communicative technologies, but several aspects of emojis will require careful consideration. Most significantly, senders and receivers will unexpectedly see different versions of an emoji due to technological intermediation, leading them to make reasonable—but different—interpretations of the same communication, with potentially adverse consequences for one or both parties. The article will explore some steps that would reduce the risks of these misunderstandings.
Second, emojis will often qualify for copyright and trademark protection. However, IP protection encourages platforms to differentiate their emoji implementations, which exacerbates the risks of miscommunications and misunderstandings. To mitigate this outcome, IP protections for emojis should be interpreted narrowly.
Third, emojis create some issues for judicial operations, including if and how judges will display emojis in their opinions, if emojis in court opinions will be searchable, and how best to present emojis as evidence to fact-finders.
Here’s the abstract for Deven R. Desai and Joshua A. Kroll’s very interesting article, Trust But Verify: A Guide to Algorithms and the Law, Harvard Journal of Law & Technology, Forthcoming:
The call for algorithmic transparency as a way to manage the power of new data-driven decision-making techniques misunderstands the nature of the processes at issue and underlying technology. Part of the problem is that the term, algorithm, is broad. It encompasses disparate concepts even in mathematics and computer science. Matters worsen in law and policy. Law is driven by a linear, almost Newtonian, view of cause and effect where inputs and defined process lead to clear outputs. In that world, a call for transparency has the potential to work. The reality is quite different. Real computer systems use vast data sets not amenable to disclosure. The rules used to make decisions are often inferred from these data and cannot be readily explained or understood. And at a deep and mathematically provable level, certain things, including the exact behavior of an algorithm, can sometimes not be tested or analyzed. From a technical perspective, current attempts to expose algorithms to the sun will fail to deliver critics’ desired results and may create the illusion of clarity in cases where clarity is not possible.
At a high-level, the recent calls for algorithmic transparency follow a pattern that this paper seeks to correct. Policy makers and technologists often talk past each other about the realities of technology and the demands of policy. Policy makers may identify good concerns but offer solutions that misunderstand technology. This misunderstanding can lead to calls for regulation that make little to no sense to technologists. Technologists often see systems as neutral tools, with uses to be governed only when systems interact with the real world. Both sides think the other simply “does not get it,” and important problems receive little attention from either group. By setting out the core concerns over the use of algorithms, offering a primer on the nature of algorithms, and a guide on the way in which computer scientists deal with the inherent limits of their field, this paper shows that there are coherent ways to manage algorithms and the law.
Recommended. — Joe