Month: September 2022

In a stunning upset last week, Democrat Mary Peltola defeated former Republican Gov. Sarah Palin in a special election for Alaska’s sole congressional district. The race garnered a lot of attention for its use of ranked choice voting. In 2020, Alaskans approved the new system, which allows voters to rank each candidate by preference. If no candidate wins an outright majority, then the lowest-performing candidate is eliminated and his or her voters’ ballots are tallied again, with the second choices counted first instead. This repeats until a candidate passes 50 percent.

After the first ballot, Palin trailed Peltola 40–31, with Nick Begich III in third with 29 percent. After Begich was eliminated and his ballots were re-tallied, Peltola prevailed over Palin 51–49.

In the days after Palin’s loss, prominent conservatives and Republicans criticized the new system for contributing to her defeat. After the results were announced, Sen. Tom Cotton (R–Ark.) tweeted, “Ranked-choice voting is a scam to rig elections.” (Previously, he has referred to it as a “radical scheme.”) Palin herself called the system an “experiment” that’s “crazy, convoluted,” and “confusing.” In National Review, Jim Geraghty termed it “a legitimate electoral system…that doesn’t make sense.”

But it’s not ranked choice voting’s fault; Palin was simply a bad candidate.

Geraghty complained that ranked choice voting was “more complicated” than “the familiar ‘first past the post’ system,” that “the Democrats came out the big winner, even though their candidate finished fourth in the first round of voting.” This is true, though the third-place finalist, Al Gross, withdrew from the race after the June primary and encouraged his voters to support Peltola.

Cotton complained that even though “60% of Alaska voters voted for a Republican…a Democrat ‘won.’” This is also true, though notably they did not all vote for the same Republican. Begich and Palin collectively accounted for 59.8 percent of the first-round vote, but only about half of Begich’s voters chose Palin as their second choice; nearly 30 percent picked Peltola, while 21 percent did not choose a second or third choice.

Under a traditional primary system, Palin likely would have beaten Begich in a Republican primary and faced Peltola one-on-one. But Begich’s voters would not necessarily have then turned out for Palin—in fact, they had the opportunity to do so on the ranked-choice ballot, and more than half chose not to. Far from being some radically convoluted “scheme,” the most direct effect of ranked choice voting is to serve as an “instant runoff” by letting voters indicate which candidates they would prefer if their first or second choice didn’t win.

Many of these complaints elide Palin’s actual quality as a candidate. Many Alaskan Republicans were skeptical of her, as was reported by The Washington Post in April when she filed to run. Throughout the campaign, Palin criticized the ranked choice voting system, telling the crowd at last month’s Conservative Political Action Conference in Texas, “It’s bizarre, it’s convoluted, it’s confusing and it results in voter suppression…It results in a lack of voter enthusiasm because it’s so weird.” But as Geraghty noted, 85 percent of Alaskan voters polled by Alaskans for Better Elections found the new system either “somewhat simple” or “very simple.”

Ranked choice voting is not a “scheme to rig our elections” by “out-of-state liberal billionaires,” as Cotton has alleged. But as Geraghty correctly pointed out, it is also not a panacea for every issue in the current political duopoly. It is merely an alternative that gives voters more options than simply one Republican versus one Democrat. And as with any electoral system, a candidate still needs to convince voters to turn out for them.

The post Don't Blame Ranked Choice Voting. Sarah Palin Was a Bad Candidate. appeared first on Reason.com.

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K.D. v D.D., officially released today by the Appellate Court of Connecticut, in an opinion by Judge Douglas Lavine, joined by Chief Judge William Bright and then-Judge Joan Alexander, involved a restraining order obtained by a divorcing wife against her husband:

[The plaintiff wife] testified that on the evening of June 24, 2021, she went to a restaurant with a group of others, including friends of the defendant. The plaintiff “felt [the defendant] behind [her] shoulder,” and noticed that “the hairs on the back of [her] neck stood up.” In her testimony, the plaintiff described her encounter with the defendant at the restaurant as follows: “I saw him approaching the hostess stand very physically tense. He stared at me with his furrowed brow twitching and locked eye contact for, what, I mean, twenty-five seconds and I was frozen. He seemed very agitated in his physical movements.”

She further testified that during the incident the defendant’s shoulders were “very high” and that he was “leaning in aggressively with his hands clenched and tight and it seemed like he was breathing very heavy.” She explained that the defendant then moved away from the hostess desk “in a wide circle behind [her] slowly.” She stated that she was “in shock.” The defendant testified that he went to the restaurant in response to an invitation from a friend, but when the plaintiff arrived he became “very uncomfortable” and did not “feel safe” and, therefore, walked from the hostess stand area to the lobby where he waited for an Uber….

The plaintiff testified that, after the defendant left the restaurant, he communicated with her electronically and she detailed that while she was still at the restaurant, she received a text message from the defendant at 8:33 p.m., stating: “Enjoy your date!” She further testified that the defendant sent her a series of emails on the night of June 25 and in the early morning of June 26, 2021.

The first email stated: “You have ‘fucked’ all these ‘dinner guests’ while making me watch and abusing me. I will show you. Is that (unsafe) for those you have violated? Let me know when I should divulge your penchant for underage people.”  In a subsequent email, the defendant stated, “by underage, I meant legally permissible but young.” In another email, the defendant explained that it was “unexpected” that the plaintiff would be at the restaurant and that, “upon seeing you, I left immediately. I hope to never accidentally run into you again.” The final email in exhibit 1 concerned childcare issues.

In an oral ruling issued at the conclusion of the July 6, 2021 hearing, the court granted the plaintiff’s application for a civil restraining order. The court stated that the plaintiff’s testimony “indicated a tone of hostility which the plaintiff felt frightened her. The defendant, the husband, says no hostility, he left and took an Uber. He did indicate he left because he did not feel comfortable to be in the same space as she was. He did not let it end there, however, as he sent the messages in exhibit 1. The wife, the applicant, testified at the restaurant that he stared at her, made eye contact for twenty-five seconds, leaned in aggressively making eye contact, and furrowing his brow, and he was breathing heavily and he was fussing as he walked behind her.

“The court finds that the plaintiff[‘s] exhibit 1, substantiates the conditions at the restaurant. If all he wanted to do was leave, he could have done so, but he extended the evening with the [plaintiff] in exhibit 1. In exhibit 1 it says, [enjoy] your date and the use of the F word and the reference to others involved leads this court to the conclusion that the testimony of the wife, the applicant, is more credible. The court finds the conduct of the [defendant] creates a pattern of threatening.” …

The Appellate Court concluded, though, that the trial court wrongly “viewed the evidence through the lens of the plaintiff’s subjective reaction to the defendant’s conduct, namely, her resulting fear, and stated that the plaintiff’s testimony ‘indicated a tone of hostility which the plaintiff felt frightened her.'” Instead, “[a]lthough the reaction of an applicant can help provide context,” the court should have looked at whether “it is objectively reasonable to conclude, based on context, that the defendant had subjected the alleged victim to a pattern of threatening”; the appellate court therefore ordered the trial court to vacate the restraining order.

Congratulations to Reuben S. Midler, who successfully represented the defendant.

The post Objective vs. Subjective Inquiry in Restraining Order Based on Divorcing Spouse's Allegedly Threatening Speech appeared first on Reason.com.

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As Walter Olson has noted, one of the beneficial aspects of this Guardrails of Democracy project organized by the National Constitution Center is the considerable common ground shared by the three separate teams, each approaching the topic independently from different philosophical perspectives. This convergence on some core beliefs about what’s essential for safeguarding democracy at this moment of peril might even be characterized as the kind of “overlapping consensus” that John Rawls argued was necessary for political liberty, equality, and democracy to exist under conditions of philosophical pluralism.

In an effort to further this spirit of conciliation, I will identify three additional points of agreement concerning our mutual goal of safeguarding democracy from the forces that presently threaten it in the United States:

Broaden as Wide as Possible the Democracy-Protection Coalition

Walter worries that use of the terms “Big Lie” and “election denialism” are counterproductively off-putting, alienating conservative-minded and Republican-affiliated “ordinary” citizens who otherwise could be recruited to the democracy-protecting cause. Walter offers “election fabulist” as a less objectionable label for the same “incredibly dangerous” phenomenon. I’m happy to pragmatically use the more diplomatic term if that will help achieve the objective of preventing the repudiation of valid election outcome by partisans who simply refuse to accept defeat.

Moreover, this kind of terminological restraint is an instance of a more general point: even if “electoral skepticism” (how’s that for an even more diplomatic phrase?) over the outcome of the 2020 election is utterly unwarranted based on all the evidence, as Bill Barr among others have observed, it would be wise to consider bolstering those procedures that would help convince election skeptics of the validity of vote totals in the future. Thus, measures to make the process even more transparent and less vulnerable to misinformation—like counting mailed ballots quickly and permitting robust observation of the counting process by representatives of the competing candidates and political parties—should be maximized to the greatest extent possible.

Still, there is a limit to this strategy.  If Donald Trump and/or some of his allies attempt to repudiate the valid outcome in any of the hotly contested midterm elections, in the same way that Trump attempted to negate his 2020 loss to Joe Biden, it will be necessary to oppose that effort at election subversion with all the forces available to defenders of democracy. It will not be a moment for linguistic niceties. Rather, plain-spoken bluntness about the repeated refusal to accept electoral defeat will be needed. This point of course would be equally true if it were Democrats, rather than Republicans, refusing to acknowledge the validity of the other side’s victory.  But realistically, there is more reason to fear at the moment that some of the Republican midterm candidates—like Kari Lake running for governor in Arizona—may be unwilling to concede defeat if the vote tally is against them, than if the same is true for their Democrat opponents.

Ultimately, it is imperative that enough Americans of good will—Republicans, Democrats, and independents (as Liz Cheney said)—are willing to abide by the results, whatever they are. The midterms will be a test of our current capacity to perform this crucial small-d democratic function. Any additional ideas on how to improve our prospects for success on this front would be most welcome.

Let States Choose Which Majority-Winner System They Prefer

Walter also prefers the “plain vanilla” version of Ranked Choice Voting, otherwise known as the “instant runoff” version, to the “round robin” alternative. He fears that round-robin voting is “more complex” than “today’s America” can handle.  I could argue that the round-robin method of identifying a winner from ranked-choice ballots is actually simpler and more straightforward than the instant-runoff method, especially for Americans familiar with round-robin scoring in sports. But it’s not necessary, or productive, to have that debate here.

Instead, as part of the project of finding common ground in the defense of democracy, all of us should embrace a move to majority-winner elections, leaving to states the choice of which particular majority-winner system they wish to adopt: instant runoff, round-robin, or another alternative, including the kind of “top two” system used in California, which doesn’t even require ranked-choice ballots.  Anyone, like Walter, who favors instant-runoff voting over the status quo ought to favor the congressional adoption of a majority-winner requirement for congressional elections.  Walter may be right that ranked choice voting, or electoral reform more broadly, won’t eliminate the risk of election subversion (to use that particular term).  But there is already evidence from this year’s midterms—including Sarah Palin’s loss under Alaska’s new instant runoff system—that more extreme candidates, like those espousing “election fabulist” positions, have greater difficulty prevailing in majority-winner electoral systems. Therefore, it should be a high priority for the democracy-protection coalition to urge enough Republicans as well as Democrats in Congress to enact a majority-winner rule that would cause states to choose among the many majority-winner alternatives that are all more democracy-protecting to the existing plurality-winner systems that most states use.

Jumpstart a Discussion on Reinvigorating Civics Education

Walter rightly acknowledges the danger that the government’s effort at civics education can turn into “taxpayer-funded propaganda” but he still believes that improved civics education is a worthwhile pursuit. I too see no alternative to an attempt to resuscitate a national conversation on the shared precepts of democracy that should form the basis of every American’s education for citizenship. Even if in our currently polarized environment there are sharp disagreements among citizens about what democracy entails, we need to have this conversation. We cannot possibly undertake self-government together as Americans unless we embrace some common conception of what self-government is and how it is to be conducted.

This brief follow-up to our initial round of Guardrail essays is not the place for a detailed discussion of what a revitalized civics education would entail. Indeed, precisely because the contents of a proposed civics education would be contested, there should be no claim of imperiously dictating the curriculum to those who would object. Instead, what is essential is to have a serious, good-faith, and ongoing dialogue about what that curriculum should include.

I have faith that if that kind of dialogue occurs, it would be fruitful. The essential elements of a democracy, while contestable to some degree, inevitably have some core components to be mutually discoverable. Democracy is not an infinitely malleable concept, which ultimately has no core meaning. Instead, “government of the people, by the people, and for the people,” as Lincoln so memorably put it, has an irreducibly common understanding for all Americans. We need to remind ourselves of what that common understanding is, so that it indeed does not perish.

The post Three Points of Agreement on Democracy Protection appeared first on Reason.com.

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Bodycam video of the fatal shooting of Rameek Smith draws into question a New York City Police Department (NYPD) account of what happened. The footage, released by the NYPD on Friday, has raised doubts about what really happened on the night in May when two cops fired 19 times at Smith as he fled from them in the Bronx. One of those shots hit Smith in the head, fatally wounding him.

The NYPD said officers shot Smith after he fired at them, wounding one officer. They also said they recovered a gun at the scene.

In the newly released bodycam footage, Smith cannot clearly be seen shooting at the officers, nor are any officers shown getting hurt. Audio does not kick in until just before Smith is shot, leaving it unclear why NYPD Officer Dennis Vargas approached Smith as he seemed to be simply walking down a city sidewalk, nor why Vargas and his partner chased Smith when he started to run away. The edited footage also stops immediately after Smith was shot, omitting the part where police allegedly found his weapon.

None of this precludes the possibility that things happened as the official NYPD narrative said they did—and some suggest that the video does line up perfectly with their story. But the important parts of the NYPD narrative cannot necessarily be confirmed through this video. And what’s been left out raises concerns that maybe Smith’s death didn’t go down the way police say it did—and wasn’t the model case against criminal justice reform that the city’s mayor made it out to be.

New York City Mayor Eric Adams and some others used the incident to condemn bail reform. Smith—who was arrested in 2020 for carrying a gun while on probation for a robbery conviction—had pleaded guilty to carrying a gun illegally. He was allowed to remain free as he awaited his sentencing in June.

“Adams said Smith should have been jailed on that gun charge. And he indicated that the state’s bail reform laws, which prevent judges from holding those who can’t afford bail in jail on certain offenses, were to blame,” notes Gothamist. “Yet that argument didn’t hold up.” Since Smith was on probation when he was arrested for having a gun, a judge could have held him on bail but chose not to, a Brooklyn District Attorney’s Office spokesperson told Gothamist.

Rather than a blow against supposedly overly lenient criminal justice policies, Smith’s death may actually speak to the problem of overly zealous policing.

The officers who killed Smith were part of Adams’ newly created Neighborhood Safety Teams, who have been tasked with using “intelligence based policing” to “remove illegal guns from our streets” and “all crime conditions that impact our public safety and quality of life,” per an NYPD video on YouTube. The teams are stationed in neighborhoods and public housing areas where the most shootings take place and involve officers in unmarked cars.

“To some, these units are reminiscent of previous squads of plainclothes officers who jumped out of cars to go after alleged criminals and used violence at disproportionate rates,” notes Gothamist. “The new Neighborhood Safety Teams wear modified NYPD uniforms and operate out of unmarked vehicles, which raised speculation that Smith may not have known who was pursuing him.”

Vargas, the officer who was allegedly shot in the arm by Smith, has been with the NYPD for eight years and “faced 39 complaints through the Civilian Complaint Review Board, with 12 of them substantiated,” Gothamist points out.

Many NYPD Neighborhood Safety Team trainees have a history of excessive force complaints, New York Focus reported in May.

An analysis last April showed that far from stopping all sorts of violent crime, the teams were mostly making low-level arrests.

FREE MINDS

Banned books battle in Oklahoma heats up after teacher posts QR code to access forbidden literature. The Daily Beast profiles Summer Boismier, the Oklahoma teacher who came under fire for trying to help students acquire banned books. Before Boismier resigned, local parents suggested she should be arrested:

Her alleged crime? Providing students…with a QR code leading them to UnBanned—a Brooklyn Public Library program offering teenagers unlimited digital and audio access to banned or challenged books—on the first day of school last month. Boismier did so after updated guidelines and a restrictive new law inspired her to cover her entire classroom library in butcher paper, which she adorned with the phrase “Books the state doesn’t want you to read.”

Now, Boismier has “caught the attention of Oklahoma Secretary of Public Education Ryan Walters, who sent a letter to the state Board of Education on Wednesday demanding the revocation of Boismier’s teaching certification.”

FREE MARKETS

Sex worker bank accounts canceled by Wells Fargo. “Sex workers across the industry are reporting that the bank Wells Fargo has sent them notices terminating their accounts effective immediately, in what they see as an extension of the crackdown measures banks and other large institutions have been implementing over the past few years,” reports EJ Dickson at Rolling Stone:

In the letters, which are dated August 25 and copies of which were provided to Rolling Stone, Wells Fargo offers zero explanation for the decision to terminate the relationship with these customers. The letter says that the bank “performs ongoing reviews of its account relationships in connection with the Bank’s responsibilities to manage risks in its banking operations,” and that the recipient’s accounts will be closed “as a result of this review.” Wells Fargo did not immediately respond to a request for comment.

One person whose account was canceled was Alana Evans, a porn performer and president of the Adult Performance Artists Guild:

After being a customer since 1993, and NEVER GOING NEGATIVE ONCE, @WellsFargo sent me this letter today.

After 30 years, they are closing my accounts.

What is going on? I’m being removed for being a sex worker.

In one week, I’m fired from a vanilla job AND losing my bank pic.twitter.com/siYgb5EDlr

— Alana Evans (@alanaevansxxx) September 2, 2022

For more on the push to thwart porn by going after financial intermediaries, see Reason‘s May cover story “The New Campaign for a Sex-Free Internet.”

FOLLOW-UP

Special master granted. A judge has granted former President Donald Trump’s request for an independent lawyer to oversee the handling of documents the FBI seized from Mar-a-Lago. The ruling also puts a temporary pause on the Department of Justice’s investigation of the documents. From the Associated Press:

The decision by U.S. District Judge Aileen Cannon authorizes an outside legal expert to review the records taken during the Aug. 8 search and to weed out from the rest of the investigation any that might be protected by claims of attorney-client privilege or executive privilege. Some of those records may ultimately be returned to Trump, but the judge put off a ruling on that question.

QUICK HITS

• Meet the U.K.’s new prime minister, Liz Truss.

• Mississippi Gov. Tate Reeves said he’s “open to all options” and “privatization is on the table” after Jackson’s water system failed, leaving residents without usable water for days. Water pressure has been restored, but a boil water advisory is still in effect.

• A judge has dismissed a child porn complaint filed by the man who as a baby was pictured naked on the cover of the Nirvana album Nevermind.

Last night, a judge dismissed the "child porn" lawsuit over Nirvana's "Nevermind" cover. Basically, this baby is just too old now to file a complaint. Full decision here: https://t.co/3Eo9dlEw5B pic.twitter.com/vhbjowRALj

— Eriq Gardner (@eriqgardner) September 3, 2022

• “Food trucks from Colorado to Alabama are still struggling with red tape and protectionism,” reports Baylen Linnekin for Reason.

• North Carolina homeowners associations can’t ban solar panels, the state’s Supreme Court has ruled.

• The Libertarian Party’s recent internal strife is nothing new, writes Reason Senior Editor Brian Doherty. “When an internal caucus led a self-styled ‘takeover’ of the Libertarian Party (L.P.) at its biennial national convention this past May, old-timers recognized a recurring conflict that has riven the party since its first national convention a half-century ago.”

• Reason‘s Jesse Walker talks Willie Nelson with the folks at National Review.

The post Bodycam Footage Raises Questions About NYPD Shooting of Rameek Smith appeared first on Reason.com.

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Yesterday a federal district court granted President Trump’s request for a special master to review material seized from his Mar-a-Lago estate, and the court also temporarily enjoined the Government “from further review and use of any of the materials seized from Plaintiff’s residence on August 8, for criminal investigative purposes” (page 23). The ground for all of this, the court said, was its “equitable jurisdiction and inherent supervisory authority” (page 1). The claim to inherent supervisory authority seems improbable to me. Whatever that authority is, and it is debated, I will leave that aside to consider the court’s “equitable jurisdiction.”

“Equitable jurisdiction” means the power of a court of equity to act. It’s not quite the same as subject-matter jurisdiction, though the concepts overlap. We could say “you have subject-matter jurisdiction under x statute, but you don’t have equitable jurisdiction because there is an adequate remedy at law.” Equitable jurisdiction is required for equitable intervention.

Another preliminary: there are three categories of equitable jurisdiction. These three categories go back to the end of the eighteenth century, they’re present in Story, and they’re useful shorthand for how equity acts even today, when there has been procedural but not substantive merger of law and equity (on the extent of that merger, see, e.g., Petrella, as discussed in Bray, The Supreme Court and the New Equity, pages 1034-1036).

These three categories of equitable jurisdiction are: the exclusive jurisdiction, where equity makes all of the relevant law (the big example is trusts); the concurrent jurisdiction, where equity intervenes because of some deficiency or inadequacy in the regular operation of law and especially of legal remedies (this is most of what equity does); and the ancillary jurisdiction, where equity operates to aid some other court’s adjudicatory processes. The last of these is usually irrelevant after procedural merger, and I’m going to set it aside (though there’s a small chance it would be relevant here). The first of these is not relevant here. The bucket we’re in is the concurrent jurisdiction of equity.

One last preliminary: if you’d like to read more about these basics of equitable jurisdiction, I recommend two papers: Bray and Miller, Getting Into Equity (published earlier this year in the Notre Dame Law Review), and Bamzai and Bray, Debs and the Federal Equity Jurisdiction (forthcoming later this year in the Notre Dame Law Review). The Getting Into Equity paper was part of the Notre Dame Law Review’s federal courts symposium issue on equity, and it had a stellar set of scholars writing on equity (Rachel Bayefsky, Seth Davis, Kellen Funk, John Harrison, Andrew Kull, Michael Morley, Jim Pfander and Peter Douglas, Fred Smith, Mila Sohoni, and Ernie Young). I recommend the whole issue.

Now, how is all of this relevant for the latest big equity decision from a federal court? Here’s my view in brief:

The actual remedies given by the district court are broad, expansive, and yet largely unobjectionable in equity. Preliminary injunctions and special masters are often paired. Even though the injunction against the “review and use” of the seized material is broad, injunctions are often focused on the exercise of a legal power. It’s ok for equity to say “don’t use x,” as in, say, a trade secret case. Including “don’t use x until we can figure out who x belongs to,” which is not far from this case (though the fact that the seized material has already been reviewed might be a relevant distinction). Equity’s concern with the protection of information can be seen as far back as 1818 and the canonical case of Gee v. Prichard about the publication of letters.

That said, I don’t think there is equitable jurisdiction here. This is so for various interrelated reasons, but let’s start where the court does:

The court says that former President Trump’s motion “creates an action in equity” (page 7). There are no “actions in equity,” because the “cause of action” organizing principle works at law, not equity. This is discussed in detail in Bray & Miller, Getting Into Equity. The cited sources in the court’s opinion also don’t support the idea.

But the court then shifts to saying it “first must decide to exercise its equitable jurisdiction” (page 7). This is more promising, because “equitable jurisdiction” rather than “action[s] in equity” is the right category. Yet the court is still eliding the initial step. It’s not whether the court decides to exercise its equitable jurisdiction, but whether it has equitable jurisdiction in the first place. This is an important flaw in the court’s analysis, because it proceeds to consider whether to grant equitable relief without asking about the prerequisites for doing so. Or, to put it another way, the court moves too quickly past whether the legitimating prerequisites for equity getting involved have been met. And when it does discuss threshold requirements, like standing, it does not do so in a particularly equitable key.

So, is there equitable jurisdiction? I think there is not for three interrelated reasons. Let me state the reasons and then explain their relatedness.

First, it’s a principle of equity that it will not enjoin a criminal proceeding. There are various explanations for this, but one of them is basic trust in the adequacy of the criminal process. That can be doubted—there are many opportunities for error and oppression in our criminal process—but kicking things over to equity and the decisions of a judge without a jury doesn’t get us into an error-and-oppression-free zone. So it’s been a longstanding principle that equity will stay out of the criminal process. Younger cases tend to focus on whether a prosecution has been filed, but Younger—which cites this basic principle of equity jurisprudence—is just an outcropping of the general idea. It does not exhaust, limit, and replace the previous principle that equity will not enjoin a criminal proceeding, but instead applies it to a particular kind of federal-on-state intervention (on the federalism dynamics for equitable intervention, see especially the work of Kellen Funk and Fred Smith). So the fact that no federal prosecution of former President Trump has been initiated may be a reason not to invoke Younger abstention, but it is not a reason to evade the general principle that equity stays out of the criminal process, which would include criminal investigations by the Department of Justice.

Second, it’s a principle of equity that in order to intervene (in the concurrent jurisdiction) there needs to be a proprietary interest for the plaintiff. That helps to narrow and focus the equitable intervention, and works a lot like modern standing doctrine does (as discussed in Bamzai and Bray, Debs and the Federal Equity Jurisdiction, available in draft form here). In a way, this makes equitable jurisdiction turn on a merits question—does the former president have a property right in the classified documents taken from the White House and stored in Mar-a-Lago? The district court astutely recognizes this (page 13). But there are very good reasons to think former presidents have no such a property right in perpetuity in private life, and at any rate there is sufficient doubt that that is a reason not to grant equitable relief. (Note that I use “classified” in this post without getting into or making assertions about the various levels.)

So let’s assume that former President Trump has no property right to the classified documents of the United States, but he does have a property right in his own personal effects that are intermingled with those classified documents. That leads to the third reason to think there is no equitable jurisdiction:

Third, equity offers no relief to those who come into equity with unclean hands. This is a basic principle of equitable jurisprudence, and although it is a defense, in equity there’s overlap between “jurisdiction” and “claims” and “defenses” and “remedies.” It’s not fallacious in equity to say “there’s no equitable jurisidiction to give such a broad and unenforceable remedy,” or “there’s no equitable jurisdiction because the plaintiff has unclean hands.” These categories are just more porous and overlapping in equity (as discussed in detail in Bray and Miller, Getting Into Equity—see the metaphor of tags rather than a hierarchical file system). If former President Trump commingled his personal effects with classified documents belonging to the United States, then that is not a reason to allow him to restrict use of the government’s property. Instead, that is a reason to deny him any relief to protect his own property.

And you can see why these are related. One exception to “don’t enjoin a criminal proceeding” is to protect proprietary interests, and a proprietary interest is needed for equitable intervention, and Mr. Trump’s proprietary interest here is only in things that he has wrongfully commingled with government documents.

Now all three of these reasons I give for no equitable jurisdiction are discussed in the district court’s opinion. But they are treated as separate and mostly as tertiary questions. Younger appears in a footnote on the penultimate page, supporting a sentence that says “The Court is mindful that restraints on criminal prosecutions are disfavored.” But the court does not recognize that Younger, and more generally the principle that equity will not enjoin a criminal proceeding, are not advice about how to exercise equitable jurisdiction as much as they are limiting principles on whether there is equitable jurisdiction in the first place.

Similarly, the court does want to be careful not to say that former President Trump has a property right in the classified documents, so it emphasizes his personal effects that are mixed in. But the court treats that intermingling as if it were unobjectionable, and does not connect the question with its one footnote batting away the unclean hands defense (footnote 12 on page 12). The court rejects the unclean hands defense because “Plaintiff has not pled guilty to any crimes” (which is of course not a requirement for unclean hands), because “the Government has not clearly explained how Plaintiff’s hands are unclean with respect to the personal materials seized” (when commingling them with government property not licitly held is precisely such an uncleanness); and because “in any event, this is not a situation in which there is no room to doubt the immediately apparent incriminating nature of the seized material” (which is again not a requirement for unclean hands).

So where does all of this lead? One implication is that the court has taken a wrong path: it has appointed a special master and issued a preliminary injunction even though it lacks the legitimating preconditions for equitable intervention.

Yet I am not very sympathetic to the critics who doubt whether equitable remedies can control what is done with the material seized at Mar-a-Lago (i.e., the criticism that enjoining “review and use” is out of bounds for equitable remedies, as perhaps in this tweet thread from co-Volokh Conspiracy blogger Orin Kerr). There are grounds for criticism: “review and use” is vague and should be spelled out (see the equitable principle restated in Federal Rule of Civil Procedure 65(d)(1)); in terms of DOJ investigators seeing and knowing the contents of the documents, the horse has left the barn, and equity does not decree impossibilities. But when the chancellor gets his hands on you, equity’s powers are awesome.  I’ll come back to that in a moment.

Instead of focusing on the intensity of the remedy, we should say there is no equitable jurisdiction here for multiple intersecting reasons—don’t enjoin a criminal proceeding, former President Trump has no proprietary interest in the government documents (or there is at least so much doubt about that question that it should not be presumed), and any personal effects that he has intermingled with the government documents are not protectable. That is, because he has intermingled his own property with government documents not properly in his possession, he is not coming to equity with clean hands.

I will concede that one could fashion a narrower and less objectionable injunction. Courts sometimes invoke an exception to “equity will not enjoin a criminal proceeding” for the protection of property, as some of the cases on Federal Rule of Criminal Procedure Rule 41(g) seem to imply. But if so the scope of the equitable intervention would be limited to protection of former President Trump’s own personal property. That is, if for whatever reason a court decided not to apply the unclean hands defense, then there could be an injunction requiring the retention or return of his own personal effects. But I do not see any basis in equitable jurisdiction for allowing that commingled personal property to be the grounds for controlling the broader DOJ review of the seized material that belongs to the United States.

Now these are not the only reasons to think a court should conclude that it has no equitable jurisdiction, or else that it should decline to exercise equitable jurisdiction.

For example, statutes can limit or channel equitable jurisdiction, and one question is whether Federal Rule of Criminal Procedure 41 does that.

And there are also various strong separation of powers concerns here (as discussed by Orin), and those should inform the exercise of equitable powers in the United States. Even if not often followed (as Kellen has shown), the logic is the same as what Younger says about federalism: “The doctrine may originally have grown out of circumstances peculiar to the English judicial system and not applicable in this country, but its fundamental purpose of restraining equity jurisdiction within narrow limits is equally important under our Constitution . . . .”

Or to take another reason for the court not to act, the unclean hands point should also be given decisive weight in the balance of the equities. By analogy, if you build your house a foot over your neighbor’s property line–and you know that it’s over the line–you will not be heard to object to an injunction ordering you to tear down your house. Unclean hands takes us out of our ordinary balancing of costs and benefits (see Henry Smith, Equity as Meta-Law, at page 1127).

And the very intensity of the remedy matters for thinking of about whether there is a sufficient basis for equitable intervention. Precisely because this is such an intensive injunction–controlling “review and use” of material in a criminal investigation by the DOJ–there needs to be extra-strong grounds for equitable jurisdiction. As Paul Miller and I write in Getting Into Equity,

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