Posts Tagged ‘Department of Justice’

Resignations in protest, and the fire-me-now alternative

Re: President Trump’s firing last night of Acting Attorney General Sally Yates, from the previous administration, who declined to argue in court on behalf of his executive order on visa admissions, my own reaction was as follows:

* The most appropriate move for Yates would have been to resign. Noisy resignations are fine in circumstances like these.

* Given her announcement, her removal from the job was entirely routine and to be expected. The difference between what happened and a noisy resignation is not wide enough that anyone should care.

* The Saturday Night Massacre under Nixon misses the mark as an analogy for at least two reasons: Archibald Cox was an independent special prosecutor, a job designed purposefully not to be answerable to the executive branch leadership, and his charge was to investigate Watergate, that is, offenses by the White House.

More views from Ken White, Josh Blackman, Jonathan Adler, Jack Goldsmith, and Ben Wittes.

Baltimore, DOJ sign police consent decree

Yesterday the city of Baltimore signed a 227-page consent decree with the U.S. Department of Justice putting the city’s police department under wide-ranging federal control for the indefinite future (earlier).

The decree (document; summary of high points) mingles some terms that rise to genuine constitutional significance with others that no court would have ordered, and yet others that appear not to be requirements of the law at all, but at most best practices. Many are virtually or entirely unenforceable (“professional and courteous” interaction with citizens). Whether or not the decree results in the less frequent violation of citizens’ rights, it is certain to result in large amounts of new spending and in the extension of the powers of lawyers working for various parties.

In November David Meyer Lindenberg of Fault Lines, the criminal justice website, wrote this opinion piece about the failure of DoJ police reform consent decrees to live up to the high claims often made for them (more: Scott Shackford, Reason). Our consent decrees tag traces the problems with these devices in a variety of public agencies such as those handling children’s and mental health services, as well as the budgetary rigidity they often impose.

Since Congress passed enabling legislation in 1994 in the aftermath of the Rodney King beating, the Washington Post and Frontline reported in a 2015 investigation, “Twenty-six [police] investigations — a little more than half of them since President Obama took office — have led to the most rigorous outcome: binding agreements tracked by monitors. More than half were consent decrees, meaning they were approved and managed in federal court.” As of that point only Ohio, at 4 agreements, had had more than Maryland, at 3.

This 2008 report from the Alabama Policy Institute by Michael DeBow, Gary Palmer, and John J. Park, Jr. takes a critical view of the decrees’ use in institutional reform litigation (not specifically police), and comes with a foreword by Sen. Jeff Sessions, now the nominee to replace Loretta Lynch as Attorney General of the U.S. Speaking of which, there’s something so weird about some liberals’ eagerness to hand the keys to big-city police departments over to Mr. Sessions. It’s as if they think once Main Justice is calling the shots it won’t think of using that leverage on issues like, say, sanctuary cities.

Litigation roundup

Prosecution roundup

  • Fourth Circuit will review forfeiture case of “pre-conviction, pre-trial restraint of untainted property” [Ilya Shapiro, Cato]
  • “Voodoo Science in the Courtroom: The U.S. has relied on flawed forensic-evidence techniques for decades, falsely convicting many” [Alex Kozinski, WSJ; ABA Journal] “Highest court in Massachusetts throws out another shaken-baby syndrome conviction” [Radley Balko on Boston Globe]
  • Federal judge Andrew Hanen gets results! “Justice Department orders more ethics training for lawyers” [Politico, earlier]
  • Like settlement slush funds, contingency-fee prosecutions divert money from the public fisc to influential private players [Margaret (“Peggy”) Little, CEI]
  • California appeals court: Orange County district attorney’s office’s war on a judge was legal but represented “extraordinary abuse” [C.J. Ciaramella]
  • “New Jersey Bill Would Punish Eating, Drinking While Driving” [Reason]

George Will on settlement slush funds

George Will’s new column is on settlement slush funds, a favorite topic around here. A Wall Street Journal op-ed the other day by Andy Koenig observed that tens of millions of dollars from settlements with big banks by the Obama Department of Justice and New York Attorney General Eric Schneiderman are being directed to liberal political groups allied with Obama and Schneiderman, rather than to customers or taxpayers. Earlier here, here, here, here, here, etc.

Crime and punishment roundup

  • Virginia “one of a minority of states that suspend driving privileges — in most cases, automatically — for failing to pay court costs and fines arising from offenses completely unrelated to driving.” [Washington Post editorial]
  • D.C. Circuit “Rules DOJ Discovery Blue Book Off-Limits … For Now” [Jonathan Blanks, Cato]
  • “The New York Times Knows Florida’s Self-Defense Law Is Bad but Can’t Figure Out Why” [Jacob Sullum]
  • “We often hear that almost no one goes to prison simply for using marijuana.” But add “near a school”… [David Henderson]
  • A forensics roundup from Radley Balko;
  • “When Everything Is a Crime: The Overregulation of Ordinary Life” [Harvey Silverglate conversation with Reason’s Nick Gillespie]

Could the White House be “tyrant-proofed”?

How would one go about “tyrant-proofing” the U.S. presidency, after years in which many were happy to cheer the expansion of White House power so long as the office was held by someone *they* liked? Key point in Ben Wittes’s 3-part series at Lawfare: the hardest to tyrant-proof are not the extraordinary and covert national security powers held by the chief executive, but the everyday powers over the Department of Justice and regulatory agencies [parts one, two, three].

More: Neither Donald Trump nor his progressive opponents have shown themselves loyal to the principle of the rule of law [John McGinnis, Liberty and Law] Nature of the Presidency lends itself to authoritarianism and despite retrenchment under Coolidge and Ike, that’s been the trend for a century or more [Arnold Kling] And quoting William & Mary lawprof Neal Devins: “A President Trump could say, ‘I’m going to use the Obama playbook’ and go pretty far.” [Marc Fisher, Washington Post] And: Tyler Cowen on FDR, McCarthy, the politics of the 1930s-50s, and “our authoritarians” versus “their authoritarians.”