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A Utah judge denied a motion this week from a woman challenging Utah’s lewdness statute. That means Tilli Buchanan could still be placed on the sex offender registry for 10 years after appearing topless in front of her underage stepchildren.

According to Buchanan, she and her husband stripped their shirts off after installing insulation in their garage and getting the itchy substance onto their clothes. When Buchanan’s stepchildren saw the couple partially naked, she says, she attempted to explain that she and her husband were at the same level of undress and that her bare chest was not inherently sexual.

Word of the incident made its way back to the biological mother of Buchanan’s stepchildren. The mother then reported the incident to Utah’s Division of Child and Family Services. Prosecutors say Buchanan stripped in front of her stepchildren under the influence of alcohol and threatened to remain naked unless she saw her husband’s penis.

Buchanan is now charged with three misdemeanors for lewdness involving a child. Her husband, on the other hand, will not face any legal repercussions because Utah statute 76-9-702.5 defines lewdness involving a child as exposing “genitals, the female breast below the top of the areola, the buttocks, the anus, or the pubic area” in both public or private spaces “under circumstances the person should know will likely cause affront or alarm or with the intent to arouse or gratify the sexual desire of the actor or the child.”

The Utah branch of the American Civil Liberties Union (ACLU) challenged this statute, arguing that it violates the Equal Protection Clause of the 14th Amendment, which clearly prohibits discrimination on the basis of race, but can also be read to prohibit discrimination on the basis of sexuality and gender. In this case, the ACLU argued that the law’s inclusion of “the female breast below the top of the areola,” but not its male counterpart, is gender-based discrimination.

On Sunday, Utah Third District Judge Kara Pettit rejected the argument. In her decision, Pettit argued that the law criminalized similar levels of nudity and merely itemized specific body parts “rooted in physical differences between the sexes.” Because the itemization reflects the “contemporary community standards regarding nudity” and because the government has an interest in protecting children from lewd acts, Pettit dismissed Buchanan’s Equal Protection argument.

“We’re obviously disappointed that the motion was denied,” ACLU attorney Leah Farrell says. “We’ll likely appeal the decision.”

Constitutionality aside, prosecutors could stand to exercise some discretion in Buchanan’s case. They have not been able to verify even a detail as simple as the date of the incident. There is significant disagreement over the timeline of events, with separate recollections placing the incident in the fall of 2016, in late 2017, and in early 2018.

Meanwhile, the possibility that Buchanan will be added to the sex offender registry for what may be an honest misunderstanding highlights the problems with such a registry. The rules that designate sex offenders can be inconsistent or overzealously applied to people who clearly are not a threat to children. And those placed on these lists are often subjected to abuses from state and local governments. 

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When the White House released its formal response to the House impeachment, it repeated a frequent claim of the president’s defenders: “This is a brazen and unlawful attempt to overturn the results of the 2016 election.” The president himself had set the tone some time ago by tweeting, “what is taking place is not an impeachment, it is a COUP.”

This is not an unusual move for defenders of an embattled president. Nancy Pelosi was among a group of Democratic politicians who once claimed that the impeachment of President Bill Clinton was “tantamount to overturning the will of the American people.” Back then, it was Jerrold Nadler who declared that the House majority was “participating in a thinly veiled coup d’etat.”

I have a forthcoming article that tries to take these sorts of arguments seriously and determine how much credence we should give them. There is obviously a lot of meaningless bluster in this kind of rhetoric, but presidential defenders are pointing to a real issue. In a political culture that emphasizes the importance of partisan political elections, removing a president by congressional action is not the same as removing a district court judge. Advocates of presidential impeachment and removal bear a very high argumentative burden to justify such an extraordinary act, not just because the presidency is an important office but because the president was elected by the people and will eventually be held accountable by the people for his actions.

Nonetheless, all the talk of overturning elections and coups is over the top.

The impeachment power exists within the constitutional scheme, and it exists for a reason. Like any other constitutional power, it can be mishandled and abused, and the people will eventually have their say about that as well. But rhetoric of overturning elections suggests that the impeachment power can never be legitimately used against a president, which would surely be a dangerous mistake. And if impeaching a president is tantamount to overturning the will of the people who elected him, then what other actions that a Congress might take to impede a president’s plans should fall under the same shadow? Can the Senate refuse to confirm his judicial appointees? Can Congress refuse to fund his border walls? Can the Supreme Court strike down the president’s signature policy initiative? Elections have consequences, but the American constitutional system is not reducible to presidential plebiscites.

There are unique circumstances in which a presidential impeachment might be understood to have such dramatic consequences for the workings of a democracy. If the vice president were the partisan rival of the president, as he might have been under the original 1787 Constitution, then it is not hard to imagine a corrupt bargain between the vice president and his supporters in Congress to remove the president. The Twelfth Amendment saved us from that problem. If the office of the vice president were vacant such that a member of the congressional majority might succeed to the White House upon a presidential removal, as was the case when Andrew Johnson was impeached in 1868, then defenders of a president might have grounds for complaint.

In normal circumstances, of course, presidential removal would simply result in the ascension of the president’s handpicked partisan running mate. If Bill Clinton had been replaced by Al Gore in early 1999, the Democratic Party and its voters might well have been better off. The prospect of Newt Gingrich plotting to install Al Gore in the White House would have been a strange sort of coup indeed.

Perhaps there are situations in which passing the baton to the vice president does more closely resemble an effort to undo the results of an election. If the vice president represented a radically different political faction than the president, then supporters of the president might well call shenanigans if the vice president conspired with allies in Congress to depose him. If Democrats had controlled Congress in 1865 and attempted to unseat Abraham Lincoln in order to turn the presidency over to Andrew Johnson, then Republicans would have had something to complain about.

Closer to home, we might imagine a uniquely charismatic and populist president who is loathed by the political establishment. If establishment politicians sought to remove that president so one of their own might be elevated to the head of the executive branch, then the voters who rallied to the populist might well have a gripe.

It is not implausible to think that Donald Trump and Mike Pence were not interchangeable for the average GOP voter in 2016. The spectacle of Nancy Pelosi and Mitt Romney joining hands to unceremoniously toss the tribune of the people out of the nation’s capital could well be disconcerting in ways that might have made less sense in the context of almost any other president. If the salient divide is not primarily partisan but rather populist or even Trumpist, then an impeachment might face unique legitimacy challenges.

Similarly, it would not be hard for supporters of President Barack Obama or of a President Hillary Clinton to spin a narrative in which those individuals have unique representative mantles that could not simply be passed on to Joe Biden or Tim Kaine if congressional leaders disfavored the people’s choice of president.

Through their own missteps, critics of a president can give greater credence to such accusations that an impeachment is an effort to overturn an election. If presidential critics reach for every possible vehicle or excuse to attempt to remove a president from the day of his election, one should not be surprised if supporters of the president greet an impeachment with greater than average skepticism. If presidential critics make little or no effort to reach across the aisle to build broad-based support for an impeachment, then it becomes harder to credit the impeachment as driven by anything other than partisan motives to cripple a presidency. If presidential critics cannot supply a credible constitutional rationale for an impeachment, then it becomes easier to dismiss an impeachment effort as partisan dirty tricks.

When those who chant “not my president” eventually succeed in impeaching that president, their arguments are likely to be discounted. Impeachments occur in a political context, and that context will necessarily affect how the impeachment is perceived. If Obama had committed grave offenses while in office that would have merited his impeachment and removal by a Republican-controlled Congress, birtherism conspiracy theories promoted by Donald Trump among others would have poisoned the well such that many Democrats would have doubted whether any impeachment inquiry was being made in good faith and was anything other than an attempt to effectively nullify the results of an election by rendering the president politically impotent if nothing else. Suggestions that the Senate should no longer be allowed to confirm an impeached President Trump’s judicial nominations, as if a President Pence would not have made the same nominations or that an impeached president no longer wields the power of his constitutional office, give the impression that nullifying the effects of a presidential election is precisely the point. Elections have consequences, and so does political rhetoric.

Republican politicians and conservative media figures have gone to great lengths to excuse or condone President Trump’s genuine misconduct, and the Trump White House—not unlike the Clinton White House—has attempted to delegitimate investigators and accusers in a scorched earth strategy to maintain power. They have attempted to portray Trump’s impeachment as not merely misguided or unjustified but as beyond the pale. In doing so, they attempt to provide the foundation for characterizing the impeachment as a kind of coup. The attempt is analytically flawed, but politically effective.

We find ourselves at a difficult juncture. Both critics and defenders of the president have too often undermined their own credibility and have done too much to foster a partisan antipathy that cannot be easily set aside or overcome. Both fear that the other side will not abide by election results and will seek to manipulate the electoral process and constitutional mechanisms to their own advantage. Both believe that their opponents do not respect the will of their voters. When Doug Collins complains that “liberal elites” are telling “millions of voters” that their preferences do not matter, he is both pointing to and reinforcing a divide that insists that an elected president represents only part of the country.

The legitimacy of a presidential impeachment depends on our ability to come together as Americans to investigate and deliberate over charges of presidential misconduct. If impeachments are instead seen as just another form of partisan constitutional hardball, then they will be seen as illegitimate and simply a continuation of the partisan electoral struggle itself. Political leaders can help create a political environment in which presidential impeachments can fulfill their constitutional function, but they can also create an environment in which impeachments are just another manifestation of constitutional dysfunction.

A presidential impeachment is not much like a coup and would rarely overturn the will of the people, but in a deeply partisan environment it is likely to feel that way.

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Even as President Donald Trump brags about his support for sentencing reform, he pushes enhanced fentanyl penalties that threaten to repeat the mistakes he claims to be correcting. As a new report from the Drug Policy Alliance (DPA) shows, that sort of inconsistency is hardly unique to the president.

“Many legislators who support scaling back mass incarceration and the drug war are now supporting extremely harsh measures for fentanyl, undercutting the effectiveness of criminal justice reforms,” write Michael Collins, former director of national affairs at DPA, and Sheila Vakharia, the organization’s deputy director for research and academic engagement. One striking example: The Sentencing Reform and Corrections Act of 2017—a bill that would have gone further in reducing drug penalties than the FIRST STEP Act, which Trump signed in 2018—nevertheless included a “mandatory sentencing enhancement” for heroin containing fentanyl.

At the state level, politicians who favor reducing drug sentences, such as Maryland Gov. Larry Hogan (R), likewise want to increase them when the drug is fentanyl. Since 2011, Collins and Vakharia found, 39 states and the District of Columbia have responded to the upward trend in opioid-related deaths by enacting harsher penalties for fentanyl offenses, a strategy that is both ineffective and unjust.

These politicians are responding to the increasing prevalence of fentanyl as a heroin booster and substitute. That development, driven by the economics of prohibition, has made illegal opioids more deadly.

Since fentanyl is roughly 50 times as potent as heroin, its use has made the potency of illicit opioids more variable and unpredictable, magnifying the risk of accidental overdose. “The lack of knowledge whether an illegal drug may contain fentanyl (or how much) could mean that people may not be taking necessary precautions to reduce their risk of overdose, such as using a smaller amount, not mixing with other classes of drugs or consuming their drugs more slowly,” Collins and Vakharia note. Furthermore, fentanyl is faster-acting than heroin: “Whereas there may be 2-3 hours to respond to a heroin or prescription opioid pill overdose, the effects of a fentanyl-related overdose are virtually immediate (death can occur in a matter of minutes) and someone must reverse the overdose with naloxone [an opioid antagonist used to treat overdoses] immediately to prevent a fatality.”

Fentanyl has become very common in many parts of the country. “Fentanyl is now present in most heroin in the Midwest and Northeast, while rapidly spreading west of the Mississippi,” Collins and Vakharia write. Between 2010 and 2017, according to data collected by the U.S. Centers for Disease Control and Prevention, opioid-related deaths more than doubled, while the share of those deaths involving “synthetic opioids other than methadone”—the category that includes fentanyl and its analogs—more than quadrupled, from 14 percent to 60 percent. In 2017, that category was implicated in more than 28,000 deaths.

Given those trends, it is not surprising that legislators have reacted to fentanyl the way they usually react to the latest drug menace: by ramping up penalties for distribution in the vain hope of shrinking the supply, raising retail prices, and ultimately reducing consumption. But it is striking that this punitive response has coincided with bipartisan recognition that past attempts to reduce drug-related harm by sending more people to prison for longer periods of time—in particular, draconian mandatory minimums for crack cocaine offenses—resulted in excessive punishment for low-level dealers that disproportionately affected racial minorities.

The fentanyl crackdown promises more of the same. Looking at federal fentanyl convictions in 2016, Collins and Vakharia find that half the defendants were black, while a quarter were Hispanic. Although the average sentence was five and a half years, 26 percent of the fentanyl defendants were classified as “couriers/mules,” while 24 percent were described as “street-level” dealers. Even more striking, 53 percent of the defendants “did not seem to know they had fentanyl,” according to the U.S. Sentencing Commission.

Since fentanyl is commonly added to heroin high up in the distribution chain, people convicted of selling it, like their customers, “are often unaware of the composition and potency of their drugs and have little control over the quality of product available,” Collins and Vakharia write. “How can a tough sentence be a deterrent for behavior that people cannot prevent and may not even know they are engaging in?”

Politicians may imagine they are punishing callous kingpins who are “agents of death,” as former Sen. Kelly Ayotte (R–N.H.) put it while promoting a bill that would have increased federal fentanyl penalties. Under her proposal, the weight threshold triggering a 10-year mandatory minimum would have been reduced from 400 to 20 grams for fentanyl and from 100 to five grams for fentanyl analogs; the cutoffs for a five-year mandatory minimum would have dropped from 40 to two grams and from 10 grams to half a gram, respectively. Yet the low-level players who would often be subject to those mandatory minimums not only might not realize they were selling fentanyl; they might be users who sell drugs to finance their own habits or who qualify for distribution charges when they pool their resources with other users to buy drugs.

While Ayotte cited Prince’s fentanyl-related death as an example of the problem she was trying to tackle, Collins pointed out that Prince himself could have qualified for a mandatory minimum sentence under her bill. Collins and Vakharia warn that “differentiating between people who use and sell drugs is not possible,” especially since sentences are based on weight and prosecutors generally assume “intent to distribute.”

Is there any reason to think that enhanced penalties will actually reduce fentanyl-related deaths? “There is no evidence that punishing the use and sale of a drug more harshly due to its potency will reduce its availability,” Collins and Vakharia say. They quote an observation that Marc Mauer, executive director of the Sentencing Project, made in 2018: “Increasing already high penalties for drug offenses is not effective because 1) most people do not expect to be apprehended for a crime, are not familiar with relevant legal penalties, or criminally offend with their judgment compromised by substance abuse or mental health problems, and 2) those who are apprehended and sentenced are often in the lower levels of the drug trade and are readily replaced by other sellers willing to fill their roles.”

The fentanyl crackdown could actually increase drug-related deaths, since it includes a surge in prosecutions for “drug-induced homicide,” a trend documented in a 2017 DPA report. By threatening to imprison people who share drugs that are implicated in fatal overdoses, such prosecutions may deter them from seeking lifesaving help, undermining the goal of “Good Samaritan” laws that are supposed to protect bystanders in such situations.

Instead of more punishment, Collins and Vakharia recommend several harm-reduction measures that are more likely to be effective, such as stronger Good Samaritan laws, increased access to naloxone, distribution of test strips that indicate the presence of fentanyl in black-market drugs, legalization of supervised drug consumption sites, and expansion of treatment using substitute opioids, including research on injectable alternatives. “We cannot have a public health response to some drugs and a criminal justice response to others,” they write. “We cannot talk about ‘treatment, not incarceration’ and then revert to interdiction and enforcement when a new substance that frightens us appears on the scene.”

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A bipartisan group in Congress is attempting (again) to pass legislation that would restrict the National Security Agency from abusing the PATRIOT Act and the Foreign Intelligence Surveillance Amendment (FISA) Court in order to collect and access private records of Americans.

The Safeguarding Americans’ Private Records Act would formally prohibit the bulk collection of Americans’ phone records, which Edward Snowden exposed and the NSA has since quietly ended. Despite years of government officials defending the practice, the mass collection of all our phone and internet records has not been shown to assist the government in fighting terrorism.

The bill would also prohibit warrantless collection of geolocation information and it would forbid the NSA and other intelligence agencies from creating “secret” interpretations of surveillance laws, which is how the NSA used Section 215 of the PATRIOT Act to justify mass domestic data collection in a way that the Act’s primary sponsor, Rep. Jim Sensenbrenner (R–Wis.), says he never intended.

The bill also seeks to address some of the institutional problems with the FISA Court, recently revealed by the Justice Department Office of the Inspector General’s (OIG) review of the warrant applications FBI agents submitted in order to wiretap former Donald Trump aide Carter Page. The OIG determined that the FBI made a number of errors and omitted important details in its warrant applications. (More news on this dropped today: A December letter from the FISA Court was just declassified showing that the Justice Department now believes that two of the warrant applications targeting Page are not valid due to the omissions.)

In the wake of that review, the FISA Court has demanded that the FBI make changes to its warrant application process so that the court receives all of the information it needs to approve or deny a warrant that would allow the government to secretly surveil Americans.

The FISA Court operates in secret, and potential surveillance targets do not have the ability to contest warrant applications. However, in the wake of the OIG’s report on Page, the Court has appointed former DOJ attorney David Kris to advise it on potential reforms. Kris reviewed the FBI’s proposed reforms and recommended an even more aggressive review process.

The Safeguarding Americans’ Private Records Act would allow independent advisers like Kris (“amici curiae,” in the bill’s language) to access all the reports, transcripts, and pleadings submitted to the FISA Court. These advisors would theoretically thus be in a position to offer an adversarial perspective to the Court. While working at the Justice Department in the 2000s, for example, Kris dissented from President George W. Bush’s use of the PATRIOT Act to collect domestic records. Under this bill, Kris and people like him could make their case directly to the FISA Court.

Finally, the bill would increase reporting requirements so that the public would have a better idea of how federal law enforcement agencies use the PATRIOT Act to conduct domestic surveillance. The bill would also empower the Office of the Inspector general to investigate whether this surveillance has been used against people who are engaged in First Amendment-protected activities, and the extent to which agencies are collecting information about people who have not been specifically targeted (known as “backdoor collection”).

The bill has Democratic and Republican sponsors in both the House and Senate. In the Senate, it’s sponsored by Sen. Ron Wyden (D–Ore.) and Steve Daines (R–Mont.). In the House, it’s sponsored by Reps. Zoe Lofgren (D–Calif.), Warren Davidson (R–Ohio), and Pramila Jayapal (D–Wash.). It has support on the left from digital activist group Demand Progress and on the right from conservative/libertarian Tea Party activists at FreedomWorks.

“Liberty and security aren’t mutually exclusive, and they aren’t partisan either,” Wyden said in a prepared statement. “I’m proud our bipartisan coalition is standing up for Americans’ rights and commonsense reforms to protect our people against unnecessary government surveillance. This bill preserves authorities the government uses against criminals and terrorists, while putting Americans’ constitutional rights front and center.”

Read the bill for yourself here.

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