Federal judge Amit Mehta could not believe the arguments the president's lawyer, William Consovoy, made on Monday:
Consovoy, a beefy former law clerk to Justice Clarence Thomas, offered two related points:
(A) Congress can’t issue a subpoena or otherwise probe a president unless it is doing so for a “legitimate legislative purpose.”
(B) Any “legitimate legislative purpose” Congress could conceivably devise would be unconstitutional.
As a result, Consovoy argued, Congress can’t investigate to see if a law is being broken, can’t inform the public of wrongdoing by the executive and can’t look for presidential conflicts of interest or corruption, because that would be “law enforcement.”
I can't believe these arguments either. Dana Milbank suggests that Consovoy expects to drag out the appeals process and essentially run out the clock on Congress's ongoing investigations.
This may explain why Democratic activist Tom Steyer released this ad yesterday:
Pretty damning stuff. And it gets to the frustration that many of us feel.
I'm willing to give the House Democrats more time. But just a little. Because we need to get the facts out there before the next election.
Former Associate Justice John Paul Stevens believes District of Columbia v Heller was "unquestionably the most clearly incorrect decision that the Supreme Court announced during [his] tenure on the bench:"
The text of the Second Amendment unambiguously explains its purpose: “A well regulated militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” When it was adopted, the country was concerned that the power of Congress to disarm the state militias and create a national standing army posed an intolerable threat to the sovereignty of the several states.
Throughout most of American history there was no federal objection to laws regulating the civilian use of firearms. When I joined the Supreme Court in 1975, both state and federal judges accepted the Court’s unanimous decision in United States v. Miller as having established that the Second Amendment’s protection of the right to bear arms was possessed only by members of the militia and applied only to weapons used by the militia. In that case, the Court upheld the indictment of a man who possessed a short-barreled shotgun, writing, “In the absence of any evidence that the possession or use of a ‘shotgun having a barrel of less than eighteen inches in length’ has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.”
So well settled was the issue that, speaking on the PBS NewsHour in 1991, the retired Chief Justice Warren Burger described the National Rifle Association’s lobbying in support of an expansive interpretation of the Second Amendment in these terms: “One of the greatest pieces of fraud, I repeat the word fraud, on the American public by special-interest groups that I have ever seen in my lifetime.”
And after Heller came Sandy Hook, Las Vegas, Sutherland Springs...and on and on.
Crain's outlines how Illinois' statutory approach to legalizing pot will make the state a leader in the country:
Illinois is trying to do something no other state has accomplished, legalizing recreational marijuana by statute instead of coming up with a program on the fly after a ballot initiative.
The bill, outlined Saturday, covers the mechanics of licensing, distribution and taxation, as well as some thorny criminal and social-justice matters that are crucial to lining up support.
The legislation also would create a $20 million low-interest loan fund to help “social equity applicants” from communities that have been hit hard by poverty and arrest and incarceration rates for cannabis use to win licenses to grow, produce and sell cannabis for recreational use. The Cannabis Business Development Fund would be seeded with $12 million from the existing medical cannabis fund.
An even trickier balance is trying to put in regulations necessary to keep the industry under control but large and competitive enough to cut into the illegal pot market. That’s been a challenge in California, where the legalized cannabis market opened last year, with seemingly little impact on the black market, the New York Times reported.
State Senator Heather Steans (D-Chicago) and State Representative Kelly Cassidy (D-Chicago) plan to introduce the bill today. Fun fact: The Daily Parker resides in Steans' legislative district.
Illinois governor JB Pritzker announced proposed legislation today that would legalize recreational marijuana and expunge low-level possession convictions retroactively:
The governor and lawmakers touted a central social justice provision of their proposal: Expunging what they estimate would be 800,000 low-level drug convictions. Revenue from Illinois’ marijuana industry would be reinvested in communities that lawmakers said have been “devastated” by the nation’s war on drugs.
Under the proposed rules, no new large-scale commercial growers would be permitted to set up shop here, at least for now. Instead, the focus would be on small “craft” growers, with an emphasis on helping people of color become entrepreneurs in the weed industry. In addition, adults would be allowed to grow up to five plants per household, in a locked room out of public view, with the permission of the landowner.
Municipalities could ban retail stores within their boundaries within the first year of the program. After that, any ban would have to come through a voter referendum.
According to a summary from Pritzker’s office, permit fees would be $100,000 for growers and $30,000 for retailers, with lower fees for applicants from minority areas disproportionately affected by convictions in the war on drugs. There would also be a business development fee of 5 percent of total sales or $500,000, whichever is less, for cultivators, and up to $200,000 for dispensaries, with lower fees for “social equity applicants.”
The state’s current medical marijuana program would remain the same, lawmakers said, and dispensaries would be required to make sure enough supply is set aside for medical use.
A couple of barely-known groups oppose the bill, but the governor expects swift passage through the legislature and a quick signature.
I'm in favor, even though I don't smoke.
Fordham Law School professor Jed Handelsman Shugerman says Attorney General Robert Barr got it exactly backwards:
The Mueller report, holding itself to the higher standard, concluded that it did not find proof beyond a reasonable doubt of criminal conspiracy with Russia. It also offered an explanation: Lies by individuals associated with the Trump campaign “materially impaired the investigation of Russian election interference.” Witnesses deleted emails and used applications with encryption or deletion functions, which also thwarted fact-finding. Part II of the report on obstruction explains why Part I may have fallen short of such a high burden.
Mr. Barr had the analysis backward in his summary letter. The failure to prove an underlying crime does not mean there was no obstruction. The obstruction meant that it became impossible to know whether there was a conspiracy beyond a reasonable doubt — and it impeded the Russian investigation. Mr. Barr then used that doubt to question whether there was the corrupt intent required by obstruction statutes. To the contrary, the preponderance of conspiracy evidence confirms the corrupt intent.
This conduct by President Trump, his son and his campaign manager and deputy campaign manager are probably civil violations of coordination for enforcement by the F.E.C. Presidents should not be impeached for civil election violations, but one should still be able to conclude that Mr. Mueller established coordination with the Russian government as a factual matter. And it may have been so egregious that it was a “high misdemeanor,” and the obstruction was not faithful execution of the law, especially in light of new historical evidence of its meaning.
Meanwhile, the machinery of congressional investigation churns along...
A large number of articles bubbled up in my inbox (and RSS feeds) this morning. Some were just open tabs from the weekend. From the Post:
In other news:
And now, to work, perchance to write...
Most members of the Writers Guild of America (WGA) last week fired their agents because of the intrusion of finance into their business. Large agencies, some owned by finance companies and no longer partnerships, no longer appear to represent the writers they claim to represent, as the agents have interests on both sides of many deals.
The Association of Talent Agents (ATA) has responded to all these principals firing their agents with questionable logic:
For those of you who haven’t been following, the WGA (for which, until recently, my husband worked as a magazine editor) wants the talent agencies to sign a new code of conduct to ensure the agents do their jobs — getting their clients the best deals possible — and that’s it. No using clients as part of an overall package deal or working with affiliated production companies; too often, the WGA contends, these practices result in writers getting shafted.
The ATA says the agencies will not be signing any such code because the WGA is not the boss of them and writers actually benefit from packaging, which has been going on for years.
So the WGA instructed its members to fire their agents, which almost all of them have, and announced it is suing the four major talent agencies.
In response, the ATA accused the WGA of trying to throw Hollywood into “predetermined chaos” and instructed its members to keep a list of any writers trying to get work without using an agent because, according to ATA reps, this is illegal.
So just to recap: Writers are unhappy with how major talent agencies have been repping them. When confronted with this, the agents refused to make any changes, so the writers fired them. Now the agencies are saying the writers cannot do this because, according to them, writers are legally bound to be represented by people who they believe are shafting them.
Even by Hollywood standards, this is Absolutely Insane.
It's going to be interesting as lawyers and accountants start representing writers.
Note: I'm still going through photos from this weekend, so I'll have the official Park 29 and Park 30 postings up today or tomorrow.
While waiting for the Mueller Report to download (spare a moment to pity the Justice Department's servers), an alert came in from Crain's:
“Had defendants not taken these improper and illegal actions, Sears would have had billions of dollars more to pay its third-party creditors today and would not have endured the amount of disruption, expense, and job losses resulting from its recent bankruptcy,” lawyers for the estate said in a court filing.
The complaint, filed as part of the retailer’s ongoing bankruptcy case, asks that the transactions be ruled fraudulent transfers and says creditors should be compensated.
Lawyers for the estate also allege that ESL stripped Sears of the real estate under 266 of the retailer’s most profitable stores, undervaluing the land by at least $649 million. “Moreover, the culpable insiders arranged for Sears to lease the properties back under blatantly unfair terms,” according to the complaint.
It's interesting to me how people who claim that the government has no right to interfere in private affairs seem to make that claim to avoid scrutiny of shady behavior. And Lampert seems to be one of the shadiest.
On March 4th, the U.S. Supreme Court decided two cases that change how copyright infringement cases work in the U.S. In Fourth Estate Public Benefit Corporation v. Wall-Street.com, the Court held that a copyright owner must wait for the Copyright Office to accept or reject a registration application before the owner can sue for infringement:
Justice Ruth Bader Ginsburg (who had not attended the oral argument because she was home recovering from surgery) delivered the court’s opinion. She analogized the registration requirement to an administrative exhaustion requirement that an owner must satisfy before suing to enforce ownership rights.
The court concluded that the only satisfactory reading of the text of Section 411(a) is that the Copyright Office must have registered the copyright in order for registration to have been made. Fourth Estate had argued that the phrase should be read to refer to the copyright owner’s submission of a completed application.
Note that this does not mean creators need to register every creation. Copyright accrues to the author of a work at the moment of its creation. The registration requirement only applies to lawsuits for infringement. Neither creators nor the Copyright Office want to register every single creation in the United States; that's insane. But if you infringe on a copyright, the creator may register the work and then sue you, even if the work wasn't registered when you infringed on it.
Law firm K&L Gates still recommends registration: "An initial cease and desist letter to an infringer containing proof of copyright registration demonstrates that the claim may be filed in court, providing leverage to the copyright owner. Companies and other creators should consider routine copyright application filing to protect their valuable assets without loss of time and damages waiting for registration to occur after the infringement is discovered."
So calm down: don't send every blog post or Instagram photo you create to the Copyright Office. They don't want them. If you want to sue for infringement, then register the work. But how often does that happen?
The other case, Rimini Street, Inc. v. Oracle USA, Inc., clarified what "full costs" mean in an infringement suit, and won't apply to most creators the way Fourth Estate will.
When I first heard this morning that visa-free travel to Europe would end for US citizens in 2021, I was dismayed. I remember how time-consuming it was to get a visa before the visa-waiver program started in the late 1980s. And I figured that the US would retaliate, requiring visas from Europeans, which would essentially destroy tourism between the two regions.
The reality isn't really anything like that. In fact, it merely brings the EU in line with what the US has required of visa-free travelers for years.
Starting in 2021, Americans will simply need to register with the EU equivalent of our Electronic System for Travel Authorization, or ESTA:
Currently, US citizens can travel to Europe for up to 90 days without any sort of travel authorization. ETIAS will change that.
Visa-free travelers, including US citizens, will need to request ETIAS authorization before visiting the Schengen Area. They can complete an application and pay a service fee of 7 euros (about $8) online. The authorization is valid for three years.
"Completing the online application should not take more than 10 minutes with automatic approval being given in over 95% of cases," the European Commission said in a statement.
The United States won't be the only country affected by the changes. From 2021, citizens from 60 countries will be required to apply for the ETIAS before entering the Schengen Area. Brazil, Canada, New Zealand, Singapore, Israel and Mauritius are among those countries.
So this should not affect taking a last-minute trip on the Eurostar, or crossing from Northern Ireland into the Republic. And it's fair; we've required ESTA registration from all overseas visitors for many years. I'm annoyed particularly at NPR for getting the details totally wrong in their newscast this morning.