You Are Now Free to Roam About the Ashes

Until this weekend, the leadership of most large cities, still facing the Covid-19 pandemic, were strategizing when and under what circumstances citizens may leave their homes. This weekend, most of those cities saw riots that resulted in violent deaths and injuries, burning, looting, and mayhem. In Portland, a mob beat a man for displaying the U.S. flag.

Who taught these young men to hate the U.S. flag? And not only to hate it, but to hate it with violent passion, and to beat and stomp the bodies of those who love it?

(With the help of other bystanders, the victim ultimately escaped. He never let go of the flag.)

For two-and-a-half months we have been watching nervous leaders, governing as though trying to read from the favorable history books they hope will be written about them, dither over whether or when we can enjoy our civilization ever again. Then in a space of 48 hours, vigorous louts burned much of our civilization down. Between the nail-biters who police our use of civilization, and the louts who burn it down, who is is going to rebuild our burning and decaying civilization?

The haunting feeling of Shelley's Ozymandias is not that hundreds of years should destroy the creations of a great builder, but that hundreds of years should fail to produce more builders. Any brute force can destroy-- time, moths and rust, the left. It is the will to build a civilization that is precious. The young fools who tear down our buildings are obnoxious, but the old fools who tear down the spirit of our civilization are absolutely poisonous.

Manners, Please — It's the Law

By J. Philip "Pip" Phillips

Published August 15, 2027

Speech Dept. Permit No. 87D005239

"Facemasks save lives."

It is difficult to believe, but public health officials once had to say such things just to get people to show good manners—before good manners were legally mandated. Wearing a facemask is, of course, the polite thing to do, just as using gender-neutral language, and using preferred pronouns, and not insisting that a tomato is a fruit, all of which now, happily, are required by federal law. Language excision has a long precedent. In the 1930s, many well-mannered people voluntarily adopted the term "flotilla leader" in place of the violent term "destroyer," which tended to elevate the blood pressure of those of fragile composure. Many of us will find it hard to believe we ever referred to embryonic pulsing by such an offensively evocative term as "fetal heartbeat."

But while still in those benighted times in 2020, our forebearers of gentility found themselves in an environment where manners often were not regarded as sufficiently authoritative in their own right. Our leaders often found it necessary, then, to tell others that bad manners would kill them. It was preposterous, of course, and even a minor breach of etiquette to utter such a silly thing. But in poorer taste still did others insist upon quoting improvident statements by some health officials to the effect that practical reasons to wear masks in public did not, in fact, exist.

For example, in early 2020, even the esteemed Dr. Anthony Fauci stated that "There's no reason to be walking around with a mask," because the only reason for wearing a mask was that it "might make people feel a little bit better." In making these unfortunate statements, Dr. Fauci was a victim of the times: of course we now know that the possibility of making people feel a little bit better is itself all the justification needed to compel good manners. But in 2020, Dr. Fauci felt manners were insufficient to arouse the compliance of Americans, many of whom, small-minded as they were, would likely insist upon strictly medical justifications. Though unbelievable to us today, these people quoted Dr. Fauci's statements as if they somehow excused the injunction imposed by good manners.

Before such misinformation could easily be rinsed from the public resource by the Google Gargle project, we only had the crude implement of "fact checkers" to correct Dr. Fauci's error. But fact-checkers usually relied on such crude tools as contradiction and refutation, which merely tended to encourage debate. And debate, as we know, only fosters bad manners.

For example, one fact checker portrayed Dr. Fauci's statements, made in early March 2020, as being the product of early and incomplete information, and quoted another health official as stating that the fact that people could spread virus without showing symptoms "was just not known at that point." (Quotation by Speech Dept. permit no. 82F003427.) This statement simply prompted boisterous citations to the numerous studies predating Dr. Fauci's statement, thrusting the matter even deeper into controversy. Bad manners abounded.

Another example may serve to illustrate the intractability of the problem. Dr. Fauci later correctly told the public that wearing a facemask was necessary as a "symbol" of what all Americans should be doing. (Quotation by Speech Dept. permit no. 86D006421.) While most well-mannered Americans dutifully donned their masks, much tendentious talk persisted over the outrageous premise that requiring facemasks as a symbol of safety was somehow invalid. Such pieces as this fueled this offensive argument (quotation by Speech Dept. permit no. 87D006824):

We know that wearing a mask outside health care facilities offers little, if any, protection from infection. ... In many cases, the desire for widespread masking is a reflexive reaction to anxiety over the pandemic.

It is also clear that masks serve symbolic roles. Masks are not only tools, they are also talismans that may help increase health care workers’ perceived sense of safety, well-being, and trust in their hospitals. Although such reactions may not be strictly logical, we are all subject to fear and anxiety, especially during times of crisis. One might argue that fear and anxiety are better countered with data and education than with a marginally beneficial mask, particularly in light of the worldwide mask shortage, but it is difficult to get clinicians to hear this message in the heat of the current crisis.

 [New England Journal of Medicine ***Access Restricted*** — GP#44802A.] While certainly not intended by these most excellent health officials, this piece engendered interminable chatter suggesting the existence of ugly and illegitimate controversy over the value of "perceptions." Were masks, these disputatious people insisted on knowing, effective at actually preventing illness? Were health officials, they persisted, giving medical reasons for masks, when the reasons were really based in needful social ends? Journalists and fact-checkers could only prolong distasteful public discourse, giving legitimacy to demands for medical or scientific justifications. In so doing, journalists exposed themselves to questions about their motivations and truthfulness in the process.

Very, very bad manners indeed.

Which is why the Google Gargle Project became necessary to rinse information from the public resource, information that would be used in furtherance of debate and bad manners. Improvident statements like those made by Dr. Fauci, the New England Journal of Medicine, the W.H.O., and other most high and excellent public health professionals, need no longer create discomfiting argument and bad feelings by endless consideration of the merits of ideas. Instead, by flagging offensive content on the Google Gargle app, Gargle will simply excise that content from the public record. (They remain accessible by licensed professional journalists who qualify for a permit to the requested resource.) In this way, our society can minimize the bad feelings that are occasioned by hurtful facts and unpleasant discussion.

The public record should make society feel good, about its leadership, its public health professionals, its journalists, and most importantly, about itself. That is why we Gargle any ideas that make us feel bad.

Happily, public health officials and journalists are no longer subjected to questions whether their statements are based on "objective facts," or merely a compunction to spread good manners to make society nice—once derided by the ugly term "noble lies." Good manners simply are facts, as we have long known. But now if ever a question arises about the primacy of good manners, we need no longer merely to insist upon it. Now we may simply, and politely, say: Just Gargle it.

*** If this article contains any hurtful or offensive content, please flag it using the Gargle app, or contact a Google Gargle representative to request excision or purgation. Gargling is good manners. And it is the law. ***

The Vermilion

" 'The Vermilion' is another of his names because he always writes in vermilion-colored ink." 

"Strange, strange people, the Chinese, Culum," Struan said. "For instance; only the emperor among three hundred millions is allowed to use vermilion ink. Imagine that. If Queen Victoria said, ‘From now on, only I am allowed to use vermilion,’ as much as we love her, forty thousand Britons would instantly forswear all ink but vermilion. I would mysel’.”

James Clavell, Tai-Pan (1966), concerning mid-19th century Britain-China trade relations. Trade opened the world to Chinese products and customs. But the Chinese supine deference to "The Vermilion" would remain foreign to the West for a century.

But alas, supine deference would not remain foreign forever. In the 20th century, fear and obeisance ascended in the West, and very nearly ruined it: 

We might have gotten away in the first week or two, if the French had simply sent us off the thirty miles to the Spanish border. That would have been a decent return for the food and medical supplies America has lavished on this government for years. But the Vichy men are a loathsome form of life—crawling, sycophantic, pretentious, lying, self-righteous, anti-Semitic, reactionary, feebly militaristic, and altogether base and unworthy of French culture—the very slimy dregs of the anti-Dreyfusards of old. In short, we didn't get out.

. . . .

Orders do not seem merely to guide [the Germans'] actions; orders, as it were, fill their souls, leaving no room for a human flicker in their faces or eyes. They are herdsmen, and we are cattle; or they are soldier ants, and we are aphids. The orders cut all ties between them and us. All. It is eerie. Truly, their cold empty expressions make my skin crawl.

Herman Wouk, War and Remembrance (1978).

These excerpts are from works of historical fiction. They tell of a tension between two species of men: the man who is free, and the man who is supine. At the time of their publications in the 1960s and '70s in the U.S. and the U.K., one species was regarded as familiar; the other, foreign.

Now consider this recent story out of the country whose people, Clavell expected a 20th century audience to readily understand, would take to writing in all-vermilion ink, were their queen to forbid it:

A woman was arrested for refusing to leave a park bench, saying she was ‘exercising her mind’

But she received nothing but criticism from people who said she was selfish – risking not only her own health but that of the police and others.

Consider also this viral story. From the country that rescued Europe from German order-followers and Vichy enablers, a group of Staten Island shoppers, insisting on absolute compliance with public facemask rules, converged upon an unmasked woman in a food market and shouted and swore at her until she left the store:

Viral video shot at a supermarket on Staten Island in New York City shows a mob of angry shoppers in coronavirus masks cursing a woman without one.

....

“Get the f--- out of here!” a man is heard yelling in the video. “Get out!” screams another woman, pointing toward an exit.

The paper reported that the woman who posted the video captioned it, “What happens in Staten Island when you don’t wear a mask in Shoprite!”

Should health experts insist only they were permitted to write in vermilion ink, I should think these people will be likely to accede. The Queen of England, at the height of the British Empire, did not have such power.

Letter to the Editor at The Atlantic, Responding to Jane Chong’s The Justice Department Has Had to Twist Itself in Knots to Defend Trump on Emoluments

Letter to the Editor

<letters@theatlantic.com>

May 27, 2020

Re:    Jane Chong, The Justice Department Has Had to Twist Itself in Knots to Defend Trump on Emoluments, The Atlantic’s Battle for the Constitution (May 26, 2020), <https://tinyurl.com/y8lz42vc>.

Ms Jane Chong wrote:

In general, such cases [about the President’s finances] are properly handled by the president’s personal lawyers—not by the Justice Department…. Yet since the first year of Donald Trump’s presidency, the Justice Department has defended him against three federal anti-corruption lawsuits filed in New York, D.C., and Maryland.

Ms Chong’s analysis is not correct. In each of the three lawsuits she refers to, the plaintiffs chose to sue the President in his official capacity (as opposed to in his individual capacity). What that means is that the plaintiffs were suing the United States, and not Donald J Trump. In all such lawsuits, the Department of Justice represents, and must represent, and only purports to represent, the actual defendant, i.e., the United States, and not Donald J Trump. Simply put, the President cannot displace Department of Justice counsel, much less substitute his own private counsel (even at his own expense) for Department of Justice counsel. Ms Chong errs in suggesting that the Department of Justice has “defended” Trump. It never has; rather, the Justice Department has defended its client: the United States.

The reason the Department of Justice is participating is only because the plaintiffs chose to sue the United States (in the name of the President). Plaintiffs knew precisely what the consequences of their decision—to bring an official capacity claim—would be. They chose to sue the President in his official capacity, and it appears that they did so for prudential and tactical reasons.

By contrast, in the Maryland-based lawsuit, the plaintiffs sued the President in his official capacity and in his individual capacity. The latter claim is against Trump, and he has been represented by private counsel, which I expect he is paying for out-of-pocket—much like President Clinton did when he was sued individually by Ms Jones in Clinton v. Jones. It is noteworthy that, well over a year ago, the plaintiffs voluntarily dismissed their individual capacity claim, which was the only such claim against Trump.

If Ms Chong would like to see Justice Department out of these cases, and Trump represented by his own private counsel, then she should direct her request to the plaintiffs. It is they who have engineered this situation.

Seth Barrett Tillman

(Tillman has filed multiple amicus briefs in the 3 Emoluments Clauses cases—most of his briefs have suppored the defendants.)

Seth Barrett Tillman, Submitted as a Letter to the Editor at The Atlantic, Responding to Jane Chong’s The Justice Department Has Had to Twist Itself in Knots to Defend Trump on Emoluments, New Reform Club (May 27, 2020, 2:36 PM), <https://reformclub.blogspot.com/2020/05/letter-to-editor-responding-to-jane.html>.

Who Reads ‘New Reform Club’?—People from Germany, Russia, France, and Ukraine ....

Seth Barrett Tillman, Who Reads ‘New Reform Club’—People from Germany, Russia, France, and Ukraine ...., New Reform Club (May 25, 2020, 9:55 AM), <https://reformclub.blogspot.com/2020/05/who-reads-new-reform-clubpeople-from.html>; 

Los Angeles: Late December 2019

So I went home and several hours after this I had to put myself to bed. I shivered and sweated for about fifteen hours and then I woke up feeling pretty good:


99 Ranch Market. Been here many times. Almost as big as a Costco even! With live seafood, swimming or at least prowling around!! 90% of the people here are Asian and 80% of the help. [The rest are Mexican. We nod and wink at each other like paisans, fellow North Americans at least. We don't exactly share a common language, but it's close enough.]

I grabbed a shopping cart and noticed for the first time there was no sanitizing handwipe kiosk like in every American supermarket. I'd heard about the plague in China but it wasn't in the US or really anywhere else yet.

Here in polyglot Los Angeles, nothing feels really foreign--it's all foreign--but I looked at the black security guard and said, "I just realized where I am."

My Chinese immigrant neighbors tell me they visit home once or twice a year. So does almost everyone around us here in the market. The security guard and I are maybe standing on Ground Zero.

We shrug. I go in to shop. He mans the door. I wonder what happened with him.

"Yes, but we'll hit theirs as well. We have reserves."

Longshanks: Archers.
General: I beg your pardon, sire. Won't we hit our own troops?
Longshanks: Yes, but we'll hit theirs as well. We have reserves. Attack.

Quarantine will hurt all kinds of businesses. Certain kinds of businesses are more likely to survive than others, of course. "Whether Americans like it or not," says economist Tyler Cowen, "after the worst of Covid-19 is over, theirs is going to be a nation where big business plays a larger role."

And big business, whether Americans like it or not, takes a decidedly left-leaning point of view. Rod Dreher notes: "The Human Rights Campaign Foundation, a powerful LGBT pressure group, publishes an annual Corporate Equality Index. In its 2016 report, over half of the top twenty U.S. companies in have a perfect score. To fail to score high is considered a serious problem within leading corporations." Gillette's CEO, for example, considered an $8 billion hit to its bottom line a "price worth paying" to signal its support behind the #MeToo movement. And big business is well-known for its antagonism to nationalism, and its preference for internationalism:

Transnational Identities. In 1996 Ralph Nader wrote to the chief executive officers of one hundred of the largest American corporations pointing to the substantial tax benefits and other subsidies (estimated at $65 billion a year by the Cato Institute) they received from the federal government and urging them to show their support for "the country that bred them, built them, subsidized them, and defended them" by having their directors open their annual stockholders meeting by reciting the Pledge of Allegiance to the flag and the republic for which it stands. One corporation (Federated Department Stores) responded favorably; half the corporations never responded; others rejected it brusquely. The respondent for Ford explicitly claimed transnational identity: "As a multinational ... Ford in its largest sense is an Australian country in Australia, a British company in the United Kingdom, a German company in Germany." Aetna's CEO called Nader's idea "contrary to the principles on which our democracy was founded." Motorola's respondent condemned its "political and nationalistic overtones." Price Costco's CEO asked, "What do you propose next - personal loyalty oaths?" And Kimberly-Clark's executive asserted that it was "a grim reminder of the loyalty oaths of the 1950s."

But imposing quarantines, and their natural preferences for big business and against small business, were unintended consequences we were forced to accept, being positioned, as we were, to respond to Covid-19 in an information vacuum. Those consequences rain down indiscriminately, as on the fields of Falkirk, as deadly arrows on all businesses. Some businesses have reserves. Others do not. But this was a grim reality about which we could do little.

It would be unfair, then, to ascribe ulterior motives.

Now, however, things are different. In the many weeks that have passed since making that bitter initial decision, information has rushed to fill the vacuum. The news is mixed. The health reasons for quarantine have, happily, declined -- a cause for much relief. But the economic consequences of quarantine have increased, and steeply. With each passing day, the deadly economic arrows rain down on businesses from a greater and greater height, increasing their potency, devastating small businesses. Some estimate that, by the end of June, up to half of small businesses will be gone, a great many of them never to return. 

This is a grim reality. But it is no longer a reality we are bound to accept. We now have choice; there are alternatives available to us. And each passing day we fail to exercise this choice reflects an implicit choice to continue destroying business who lack reserves, while sparing -- and in some cases, enriching -- business who have them.

Has it not now become fair to ask whether this choice reflects a preference for big business? And a preference against small business? 

What the Media will not ask

Will anyone in the media inquire from: Judge Sullivan, John Gleeson, Beth Wilkinson, and the Chief Judge for the United States District Court for the District of Columbia, and ask:

If Gleeson’s work and Wilkinson’s work is pro bono or paid?

If paid, then paid by whom?—Sullivan or the Treasury (or other)?

If the Treasury, then through what fund or under what specific legal authority?

Seth

PS: Welcome Instapundit readers. Have a look around NRC--my co-bloggers do good work. 

Seth Barrett Tillman, What the Media will not ask, New Reform Club (May 24, 2020, 3:49 AM), <https://reformclub.blogspot.com/2020/05/what-media-will-not-ask.html>;

See also: Seth Barrett Tillman, Lawyers Giving Effective Legal Advice?, New Reform Club (May 22, 2020, 4:12 AM), <https://reformclub.blogspot.com/2020/05/lawyers-giving-effective-legal-advice.html>; 

Lawyers Giving Effective Legal Advice?

Will lawyers going forward now advise their clients:

After you have been terminated … on your last day at work … before you are replaced (by the new employee) ... send an e-mail to yourself stating: “I did everything by the book.”

That is sure to work. 100%!

Also, do not mark the e-mail—“drafted on the advice of counsel”—even though you drafted it on the advice of counsel, and even though everyone knows I gave you this advice.

That is sure to work. 100%!

Seth

Seth Barrett Tillman, Lawyers Giving Effective Legal Advice?, New Reform Club (May 22, 2020, 4:12 AM), <https://reformclub.blogspot.com/2020/05/lawyers-giving-effective-legal-advice.html>; 

General Flynn & Amici in the Federal Courts

General Flynn sought mandamus relief before the United States Court of Appeals for the DC Circuit. DC Circuit rules speak to mandamus procedures. Specifically, Rule 21(b)(4) states:

The court of appeals may invite or order the trial-court judge to address the petition or may invite an amicus curiae to do so. The trial-court judge may request permission to address the petition but may not do so unless invited or ordered to do so by the court of appeals.

So what is the upshot? The mandamus applicant (ie, Flynn) is asking the court of appeals to stop Judge Sullivan (ie, the trial court judge) from appointing an amicus. Flynn’s position is that Judge Sullivan lacks the authority to appoint an amicus in his criminal proceeding—a position that Judge Sullivan apparently adhered to in earlier stages in this very case. Unlike the trial court, the court of appeals, under its appellate rules, has the express power to appoint amici (even in a criminal matter). The amici before the court of appeals may very well opine that the trial court erred in appointing an amicus.

I suspect that this will not end well for the reputation of the federal courts.

Currently, the country waits for the court of appeals to issue a briefing schedule order.

Seth

Seth Barrett Tillman, General Flynn & Amici in the Federal Courts, New Reform Club (May 21, 2020, 7:48 AM), <https://reformclub.blogspot.com/2020/05/general-flynn-amici-in-federal-courts.html>;

Letter to the Editor at National Review Online, When Does the President “Abuse” the Pardon Power?

Seth Barrett Tillman, Lecturer

Maynooth University Department of Law

  

May 19, 2020

National Review Online: The Corner

Letter to the Editor

letters@nationalreview.com

RE:    Andrew C. McCarthy, An Answer for Ramesh, National Review: The Corner (May 19, 2020, 11:51 AM), <https://www.nationalreview.com/corner/an-answer-for-ramesh/>.

Andrew McCarthy wrote:

If Senator Romney were to say, ‘A president cannot pardon all of his cronies who are suspected of crimes,’ he’d be wrong. If [Romney] were instead to say, ‘A president who pardons all such cronies grossly abuses his powers, and that Congress should block him until he desists and impeach him if he doesn’t,’ that’s a perfectly reasonable argument—and if the president suffers politically as a result, that’s what’s supposed to happen.

Who is or who isn’t a “crony” is the sort of contestable political view which is the subject of elections, not impeachments—that’s particularly true because our Constitution protects political association. The President abuses his pardon power when he exercises it in exchange for a boatload of cash, which he proceeds to hide in his closet, and then fails to disclose it to the public (and to the tax man). That’s a bribe. Short of that, his exercising the pardon power is just contestable politics. Too often, the issue of who is a “crony” and what is “abuse” are just political opinions and lawfare masked as statecraft. To make a President’s term of office wholly dependent on what his political opponents see as “abuse” is to render the President dependent on Congress—and that is not and has never been how our government was organized.

One other point. The President’s opponents (and, regrettably, some others) consistently frame the issue in terms of whether the President can be impeached for anything but a statutory violation of the criminal code. Once they conclude that the President can be impeached for some wrongs which are not statutory violations, they then proceed to argue that any non-crime based on any difference of political opinion amounts to impeachable abuse of office or abuse of powers. The proponents of this view, i.e., that the President can be impeached for “abuse” of office or for “abuse” of his powers, never actually get around to explaining what “abuse” is—what are its elements—and what defenses (if any) are applicable. See, e.g., Kelly v. United States, No. 18-1059, 2020 WL 2200833, 140 S. Ct. 1565 (May 7, 2020) (Kagan, J., for a unanimous court) (discussing abuse of power in dicta), <https://www.supremecourt.gov/opinions/19pdf/18-1059_e2p3.pdf>. 

The reality is that that “abuse” of office or “abuse” of powers, as it has been pitched to the public, amounts to an Orwellian thought crime—which seeks to overturn an election based on wrong think and mundane disagreements about policy, which, in normal times, would be the subject of elections, not impeachments (and not a process of recasting political differences as accusations of legal wrongdoing, with concomitant investigations, and threats of prosecution). 

Seth

Seth Barrett Tillman, Submitted as a Letter to the Editor at National Review Online: The Corner, When Does the President “Abuse” the Pardon Power?, New Reform Club (May 19, 2020, 12:36 PM), <https://reformclub.blogspot.com/2020/05/when-does-president-abuse-pardon-power.html>. 

Was John Merryman a Prisoner of War?

General Cadwallader’s brother was a federal district court judge. In a critique of the Merryman litigation, Judge Cadwallader took the position that Chief Justice Taney should have ruled that the Army’s detaining John Merryman was lawful because Merryman was a prisoner of war.  

I do not think much of Judge Cadwallader’s position. Merryman was not in the armed forces of any state or nation at war against the United States. Merryman’s petition made no such factual claim. General Cadwallader’s response to Merryman’s petition does not say Merryman was in a foreign army or in a military unit subject to military law or the law of land warfare. So it was the criminal law or nothing.

Judge Cadwallader’s view amounted to judicial activism—he was asking Taney to take judicial notice of a wider set of facts (and potential defenses) relating to hostilities that were not in the record, not in the applicant’s petition, and that General Cadwallader would not plead in his response—most likely at the instruction of his home government and the Army’s law officers. Why? If Merryman was in a foreign army, then the implication was that the Union and its army were invaders. If Merryman was in a foreign army, then the implication was that he was not a criminal, and that he could only be held under the laws of war until hostilities end—and then not punished. These were important policy decisions for the Army’s law officers and the Attorney General, the cabinet, and ultimately, for the President—not for General Cadwallader, who was a military district commander in a loyal state on the eve of general hostilities.

I think when most members of state militias are caught breaking civilian law and destroying property (as Merryman was accused of), they are charged as civilians with a civilian crime. In such circumstances, they are entitled to the full set of rights and judicial processes guaranteed to civilians by the Constitution and the Bill of Rights. But then, even the fact that Merryman was in the Maryland militia, was not in the record. Neither the applicant nor Cadwallader were willing to bring that fact to Taney’s attention (which, I expect, the court had already known).

When I first started studying this case, I thought Merryman was a traitor who was caught doing wrong. But having studied it, my sense is that he was agnostic about the war (and about his state’s participation in the war), and he thought he was following lawful orders from the civilian authorities when he burned bridges. These were bridges he had an indirect property interest in, and so, he was acting somewhat selflessly against his personal interests. He was a man in the wrong place at the wrong time doing the wrong thing. As Rumpole would say: “an unfortunate constellation of facts.” Still, he never should have been detained or indicted. (He was never actually tried, much less convicted in a proper judicial proceeding.) If Merryman was guilty of a crime, and I say if, there were many, many more who were much more guilty and who had done, who were ready to do, and who would go on to do much worse. If he was disloyal, and I say if, there were many, many more who were much more disloyal and who had done, who were ready to do, and who would go on to do much worse. 

The problem was once the Army had seized John Merryman, the civilian government could not back down without risking its ability to compel obedience. At that juncture, if the Union government had given in, it would appear that all traitors enjoyed a free ride, like a get-out-of-jail-free card, and Northern morale and faith in the new President would have collapsed. Merryman, like Vallandigham, was an unfortunate talking point for Confederate disobedience—but it was all unnecessary. If the U.S. government was going to detain people and do so absent due process and absent congressional suspension, then there were many, better candidates for the Army to seize. Such persons would have made better test cases and would have put those opposing the lawful government in the position of defending actual traitors who were actually dangerous. Merryman was not the place to draw a line in the sand.

Seth

Seth Barrett Tillman, Was John Merryman a Prisoner of War?, New Reform Club (May 18, 2020, 7:41 AM), <https://reformclub.blogspot.com/2020/05/was-john-merryman-prisoner-of-war.html>; 

About that judge who gives civil rights presentation to jurors...

[I received this from a friend who asked me to publish it here at NRC--TVD]


by Peter Fallow

Eugene Volokh reports on the the Los Angeles trial judge who "delivered a presentation to the jury highlighting major figures in the civil rights movement, and told the jury their duty was to stand in the shoes of Dr. Martin Luther King and bend the arc of the moral universe toward justice." That jury returned a verdict over $13 million against the defendant, UCLA. It was reversed on appeal, in part -- though only in part (this is Los Angeles, after all) -- because of the the judge's civil-rights presentation.

The judge is the Hon. Michael Linfield. Here is his bio. There is a website called The Robing Room where local practitioners may provide feedback (anonymously) about their experiences with judges. Any reviews on The Robing Room should be read with a great deal of skepticism, as what very often motivates a lawyer or litigant to submit a review is a sore court loss, the cause of which may or may not lie with any failings on the part of the judge. But what is interesting in Judge Linfield's Robing Room reviews are the repeated instances of different attorneys mentioning the judge's "civil rights presentations.

Here is one review:

... Linfield begins preaching to your jury as soon as they are impaneled. He will show a civil rights slide show to them in court. I'm being serious here. He shows them a slide show and tells them the "arc of truth bends toward justice" or some such BS. He shows slides of him with MLK Jr and implies that litigants whose rights were violated will have their day in court with him....

Here is another review:

His legal history presentations before his calendar are not appropriate and frankly, juvenile and condescending ....

Another:

When you enter his court room, he actually shows the audience a video and summary of what has occurred today in the history of law....

And another:

In light of his morning history lessons....

These selected comments are between 2016 and 2019. So it appears Judge Linfield has been delivering this presentation since at least 2016.

There is a mention in the appellate decision of a "video" (though not a "slide show") being included in Judge Linfield's presentation to the jury. Unfortunately, it was "not part of the record on appeal." Perhaps the rest of the public should have the benefit of this pedagogical tool that Judge Linfield found necessary to "bend the arc" toward justice?

To repeat, the Court of Appeal reversed only in part because of Judge Linfield's presentation. UCLA had moved for a mistrial immediately after Judge Linfield's presentation, which Judge Linfield denied. The Court of Appeal could have held Judge Linfield should have granted the mistrial. It did not. Thus, the decision does not necessarily mean Judge Linfield will put an end to his years'-long practice of presenting his history lesson to juries.

Judge Linfield's bio indicates he published a book in 1990. It is available on Amazon. Here is the back flap. Note the author of the lead review:

Add caption

It would be unfair to hold Judge Linfield responsible for Howard Zinn, that infamous political activist who made a living as a historian. But under the circumstances, the intersection is... interesting. Were he still alive, would Zinn hesitate to lend his endorsement to Judge Linfield again for A Jury's History of the United States?

Questions Looking for Answers: Judge Sullivan and General Flynn

Motion practice query. Where a judge appoints an amicus to represent a party or continue a litigation or prosecution because of an absence of adversity, then do not the parties first get notice and an opportunity to be heard to contest the appointment? Or does the court act on its own, make the appointment, and then allow the parties to make objections after-the-fact?

If the court had prior contacts with the amicus—eg, a beauty contest or competition for the starring amicus role—do the parties get to see the records of those contacts between the court and the amicus?

Who, if anyone, has oversight over Amicus (Inquisitor) Gleeson? Is it DOJ? Can DOJ assert authority over Gleeson or “his” case, like in a qui tam matter? Does Gleeson take an oath of office to support the Constitution? Is Gleeson subject to the ethical guidance which applies to federal prosecutors or the other policies of the DOJ?

Is Gleeson subject to the Appointments Clause?

Does Gleeson get paid compensation or expenses? Under what statute? Also, if he is now a public official, where can he be contacted for the right to petition? Will he get office space at the courthouse? If he is working at home, how will he secure communications which are confidential or secure materials which are public property under various records laws, and therefore must be preserved? Is Gleeson subject to Freedom of Information Act?

Does Gleeson get protection from the U.S. Marshal’s office?

When a U.S. federal judge sentences a person to a term in jail, does that order require the Executive Branch to put the person in jail, or is that merely authorization to put the person in jail? If the Executive Branch says: “We only jail people if we bring the prosecution,” then will Judge Sullivan hold the U.S. Marshal Service and the Federal Bureau of Prisons in contempt too? Where does this process of endless judicially-organized contempts and prosecutions end? 

Sorry just one more query. If Amicus Gleeson represents a party, does not he have to be a member of the bar for the U.S. District Court for the District of Columbia? Is he a member? [Gleeson is not a member of the District of Columbia bar. See <https://join.dcbar.org/eweb/DynamicPage.aspx?Site=dcbar&WebCode=FindMemberResults>] 

It turns out that you can look up who is and who is not a member of the bar for the U.S. District Court for the District of Columbia (DDC). See <https://www.dcd.uscourts.gov/bar-memberattorney-information-lookup>. If you look up John Gleeson, he is not listed as a member of the DDC bar. Finally, John Gleeson is listed on his law firm’s website. <https://www.debevoise.com/johngleeson?tab=biography>. Under bar admissions, he lists “New York” and that is it. Of course, I expect that this could be fixed with a pro hac vice motion. Has one been filed? 

Seth 

PS: Thank you Instapundit and Instapundit readers! While you visit NRC, have a look around ... my co-bloggers do good work. 

Seth Barrett Tillman, Questions Looking for Answers: Judge Sullivan and General Flynn, New Reform Club (May 14, 2020, 4:10 AM), <https://reformclub.blogspot.com/2020/05/questions-looking-for-answers-judge.html>; 

The Real World

If you were a judge who is afraid of his own shadow, afraid what you might do, what you should do, what the law seems to demand, will be deeply unpopular with 1/2 the nation, what would you do before ruling? What should you do?

If you were a judge who has deep humility, who recognizes the law is ambiguous, and the point was deeply uncontested, what would you do before ruling? What should you do?

It happens all the time that judges call for amicus participation. Don’t read too much into it.

If you are a loudmouth legal academic or serial-amicus filer public interest law “firm” or think tank that has opined ceaselessly on the Flynn matter as being 100% clear, but you do not file now—when asked to do so by a federal judge ... at a time when the very rule of law and a just legal system hangs in the balance (according to both sides) … then why should anyone listen to you ever again? Why should anyone donate to your 501(c)(3) organization ever again? Why?

For an entirely different point of view, see <https://twitter.com/Techno_Fog/status/1260368540722442240>, and <http://www.documentcloud.org/documents/6889388-Strike.html>. 

Seth

Seth Barrett Tillman, The Real World, New Reform Club (May 13, 2020, 3:44 AM), <https://reformclub.blogspot.com/2020/05/the-real-world.html>; 

An Ocean of Fundamental Rights

A friend and former colleague Ben Pugh has this piece, "Do We Have the Constitutional Right to Go to the Beach?" answering the question in the affirmative. Do read the piece. Ben is an excellent attorney, a constitutionalist, and analyzes cases closely. He lets the cases speak for themselves, speaking in his own voice only to bring them to focus on the question at hand.

"Do we have a Constitutional right to go to the beach?" It is worth a brief pause to linger over the words. Doing so might put us into the same pattern of thought as Theodore Sedgwick of Connecticut when considering whether we needed a Bill of Rights to express other Constitutional rights. “Why," he scoffed, "don’t you specify my right to get up in the morning, my right to walk down the street, my right to wear a hat?” The Constitution is such a significant thing, while walking, hat-wearing, and beach-going are such trivial things. Though it be rightful, there is something decadent about scarfing doughnuts off of fine china.

We would do well to remember there is worse threatened than mere legal error -- we face risks against which our lawyers can offer no counsel.

Consider how well has fared the Constitutionalizing of all rights. In 1989, after the U.S. Supreme Court upheld the right to burn the flag, the Today show interviewed a spokesman for the American Legion. Host Jane Pauley asked what the flag means to veterans. "The flag," the legionnaire replied, "is the symbol of our country, the land of the free and the home of the brave." Pauley pressed, however: "What exactly does it symbolize?" Recounting this episode in her book Rights Talk: The Impoverishment of Political Discourse, Mary Ann Glendon observed that the legionnaire "seemed exasperated in the way people sometimes get when they feel there are certain things that should not have to be explained." He finally replied, "It stands for the fact that this is a country where we have the right to do what we want." Glendon concludes:

Given time for thought, he almost certainly would not have expressed himself in that way. His spontaneous response, however, illustrates our tendency, when we grope in public settings for the words to express strong feelings about political issues, to resort to the language of rights.

It remains the law that we have a right under the Constitution to burn the flag which represents it. Yet we do not, it would seem, have a Constitutional right to imbibe sugary beverages, judging from the example of New York City. We in America still have a right to have doughnuts on fine china. And you even have a Constitutional right to smash the china. But, you mustn't eat the doughnuts.

So back to Ben's piece: Do we have a Constitutional right to go to the beach? Yes, I would agree. I have that right as much as my right to get up in the morning, to walk down the street, and to wear a hat. But this affords me no comfort. Judge Robert Bork, that great villain of modern Constitutional law, explained, in response to a law student hypothetical, why he would not conform to the fashion of finding more rights in the Constitution:

Once, after I had given a talk on the Constitution at a law school, a student approached and asked whether I thought the Constitution prevented a state from abolishing marriage. I said no, the Constitution assumed that the American people were not about to engage in despotic insanities and did not bother to protect against every imaginable instance of them. He replied that he could not accept a constitutional theory that did not prevent the criminalization of marriage. It would have been proper to respond that in any society that had reached such a degenerate state of totalitarianism, one which the Cambodian Khmer Rouge would find admirable, it would hardly matter what constitutional theory one held; the Constitution would long since have been swept aside and the Justices consigned to reeducation camps, if not worse. The actual Constitution does not forbid every ghastly hypothetical law, and once you begin to invent doctrine that does, you will create an unconfinable judicial power.

An all-encompassing theory of Constitutional rights is neither necessary nor sufficient for the survival of the American experiment. If we cannot continue to roughly agree we all have rights to wear hats and go to the beach, there is little help a court can offer. It remains for each to say: I will exercise my right to go to the beach, and if you stand in my way, then I will also exercise my right to knock off your hat.

Covid-19 and Partisan State Control

There are 10 states above the national average in deaths per million.

There are 21 states with Republican governors and where both legislative houses are under Republican control. Not one of those state’s deaths per million is over the national average.

Again, there are 10 states above the national average in deaths per million. 5 of those 10 states are under exclusive Democratic control (among 15 states under exclusive Democratic control). And 5 of those 10 states have divided partisan control between the legislature and governor (among 13 states with divided partisan control).

Of the top-3 states, with the highest deaths per million, all 3 are under exclusive Democratic control. 

See <https://ncsl.org/Portals/1/Documents/Elections/Legis_Control_2019_Post-Election%20Nov%2022nd.pdf>;

<https://worldometers.info/coronavirus/country/us/> (as of May 12, 2020).

Seth

PS: Nebraska is not in the analysis--as it has a unicameral, non-partisan legislature. It has a R governor, and its deaths per million is well under the national average.

Seth Barrett Tillman, Covid-19 and Partisan State Control, New Reform Club (May 12, 2020, 7:14 AM), <https://reformclub.blogspot.com/2020/05/covid-19-and-partisan-state-control.html>; 

Modelers Behaving Badly

On Joseph C. Sternberg's recommendation in the WSJ, I read John Kay and Mervyn King's Radical Uncertainty: Decision-Making Beyond the Numbers. Its March 2020 release was serendipitous timing for a book detailing why experts often fail so badly to predict outcomes of grave consequence, like the Covid-19 global emergency whose consequences were first widely felt in the U.S. and Europe that month -- largely because of policies taken in response to the grim predictions of modelers. In the book, Kay and King explain why modelers are so often wrong -- largely because we use their models for a purpose for which they are not designed.

Here is an example Kay and King offer of modelers behaving badly:

"By the 1960s, greater effectiveness of modern fishing technology had led to overfishing in many locations. In 1968 an unsustainable catch of 480,000 tons of cod was harvested from the shores of Newfoundland, and cod stocks began to decline. Many countries reacted to overfishing by extending their territorial waters to protect their domestic fisherman. In 1977 Canada took control of almost all the waters of the Grand Banks.  The country set out in organized Canadian fashion to promote a fishing industry that would revive the flagging economies of Nova Scotia and Newfoundland. The government provided subsidies for trawler construction and charged the Dominion Fisheries Office with determining the total allowable catch, that catch to be set to ensure not only the survival but the growth of stocks and the gradual expansion of the industry. The Fisheries Office developed complex models on which its recommendations were based, but cod stocks continued to decline. For the year 1992, the total allowable catch was set at 145,000 tons. That proved to be the last year of commercial cod fishing on the Grand Banks. The fish are gone, and in the course of that year, the industry finally closed. Today only around 5000 tons of cod are caught annually on rod and line by recreational and artisinal fishermen.

"It would be wrong to hold the modelers solely responsible for the collapse of the Grand Banks fisheries. Greedy fishermen and mendacious politicians should take most of the blame. But the modeling exercises were used to justify the actions and inactions of politicians and big industry.  The original impulse to determine catch limits based on insights from modeling and environmental science was effectively inverted: the evidence generated by the models ended up justifying the policy rather than actually protecting fish stocks. The modelers were complicit in an environmental disaster."

The economist Thomas Sowell provides in his popular and accessible (and thus, most sophisticated readers would likely conclude, discreditable) book Basic Economics many other examples why expert-guided leadership fares no better, and often much worse, than plain common sense. Specifically on the topic of modelers behaving badly, Sowell offers this example:

"Planners can easily make false projections, either from ignorance or from various political motives, such as seeking more power, re-election, or other goals. For example, during the 1970s, government scientists were asked to estimate the size of the American reserves of natural gas and how long it would last at the current rate of usage. Their estimate was that the United States had enough natural gas to last for more than a thousand years! While some might consider this good news, politically it was bad news at a time when the President of the United States was trying to arouse public support for more government programs to deal with the energy “crisis.” This estimate was repudiated by the Carter administration and a new study begun, which reached more politically acceptable results."

These two anecdotes are not enough to draw the conclusion that models are useless (or worse), or that modelers are inept (or worse). They should suggest, however, that leadership must be informed by more than mere models, and that modelers must be measured more than by their credentials.