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Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice.

Last month, federal auditors revealed the DEA had secretly spied on Americans who bought money counters. With a reach so expansive it alarmed even the FBI, this sweeping surveillance program helped the DEA seize over $50 million in cash and real estate. Yet auditors found “the vast majority” of those under surveillance “were never shown to be connected to illicit drug-related activities.” Over at Forbes.com, IJ’s Nick Sibilla has more.

• While presiding over the Department of Justice’s military prosecution of the alleged mastermind of the U.S.S. Cole bombing, this Air Force Colonel was simultaneously gunning for a job as an immigration judge with . . . the Department of Justice. An improper appearance of bias? D.C. Circuit: Indubitably. All 460 of his written orders in the case are vacated. Be more careful next time.
• Eight voting citizens of Greensboro, N.C. successfully challenged a 2015 law that redrew their City Council district and got an injunction prohibiting the County Board from enforcing the law. Can they recover their attorney’s fees from the Board? District Court: The Board didn’t write the law, it declined to defend the law, and it stipulated to a bunch of facts to streamline the litigation; special circumstances justify denial of fees. Fourth Circuit (over a dissent): Fee awards are about compensating the attorneys, not punishing bad actors. Pay up.
• Hattiesburg, Miss. doctor might be overprescribing opioids. So the medical board gets an administrative warrant and allegedly sends nine agents to his office to search through medical records. They allegedly detain him for hours, often at gunpoint. One delivers the charming line “[i]f you don’t sit down I will put you down.” Fifth Circuit: That’s unreasonable for an administrative search. And now that we’ve settled that—qualified immunity!
• Abilene, Tex. prison guards seek to extract from his cell a prisoner who prefers to stay. Guards contend they used the minimum force necessary, which involved spraying a chemical into the cell and restraining the prisoner’s arms and legs. The prisoner contends it was much worse—after guards handcuffed him on the floor, they punched him, squeezed and twisted his genitals, and stuck a finger in his anus. Video fails to allay confusion. Fifth Circuit: Could be excessive force. Need a trial to figure that out.
• El Paso, Tex. police respond to 911 call at dusk, discover unarmed man in the process of hanging himself from basketball hoop. Police demand he show his hands. When he fails to comply, they tase him, and he immediately goes limp. They remove him from the hoop and begin CPR, but he dies at the hospital. District court: No qualified immunity. Fifth Circuit: If the officer wanted us to address the question of whether he had qualified immunity, he should have briefed it. He didn’t (he addressed other issues in his brief instead), so the case can go on.
• Hunt County, Tex. sheriff’s dept.: Welcome to our Facebook page; please say only nice things about us or we will ban you. Fifth Circuit: Well, that’s called viewpoint discrimination, and it’s generally frowned upon.
• In June 2016, Omar Mateen pledged his allegiance to ISIS, entered the Pulse Night Club in Orlando, Fla. and opened fire, killing 49 people and injuring another 53. Can the victims and their family members bring suit under the Anti-Terrorism Act against Twitter, Facebook, and Google for providing the platforms through which Mateen became self-radicalized? Sixth Circuit: “We sympathize with Plaintiffs—they suffered through one of the worst terrorist attacks in American history. ‘But not everything is redressable in a court.'”
• It’s nearly impossible for out-of-staters to get a concealed-carry permit in Illinois. Only residents of Arkansas, Mississippi, Texas, and Virginia can do it because those are the only states that do the kind of criminal and mental health reporting that Illinois is comfortable with. Is that constitutional? Seventh Circuit (2016, over a dissent): Yup. Gun rights are limited. Seventh Circuit (just now, in the same case, over the same dissent): Still true.
• Immigrant from Iraq is detained for a year and a half while an immigration judge decides whether to send him back to the Middle East. The man sues to get out of custody. District judge: He’s locked up under a statute that operates only for the time reasonably necessary to get a decision. A year and a half is too long. Let him out. Eighth Circuit: Those words are not in the statute. But the district court should address the man’s constitutional claims. [Ed. note: If there’s time. Because—well—there’s a preliminary order to send him back to Iraq.]
• A trio of California laws meant to protect immigrants from the feds go into effect, says the Ninth Circuit. No preliminary injunction to stop law that requires employers to notify employees before federal immigration inspections. No preliminary injunction (for the most part) for state-imposed inspection requirements on facilities that house certain federal detainees. And no preliminary injunction for law that limits state and local law enforcement from cooperating with the feds, even though it “may well frustrate the federal government’s immigration enforcement efforts.”
• Jury rules for defendants. Judge 1 throws out verdict, grants judgment as a matter of law for the plaintiff. Defendants move to change the verdict back. Judge 1 says no. Defendants move to change the verdict back again. Judge 1 retires, and Judge 2 goes back to ruling for the defendants. Tenth Circuit: We’re going with Judge 1 on this. Plaintiff wins.
• Opa-Locka, Fla. 911 caller reports man trying to get through window of a neighbor’s house. Officers respond, see man matching the caller’s description, point guns at him, handcuff him, pat him down, reach into his pocket, and find a single bullet. Eleventh Circuit (2018): The police were allowed to pat the man down to find a weapon, but they crossed the constitutional line when they reached into his pocket to get the bullet. Eleventh Circuit (en banc, by a 7–5 vote): No, no. His conviction for being a felon in possession of ammunition (and pistols discovered nearby) is affirmed. Judge Jordan, dissenting: The majority fails to adequately grapple with the man’s originalist arguments. (More on that from Josh Blackman.)

Friends, this week IJ’s Center for Judicial Engagement released Episode 5 of the Bound By Oath podcast, which dives tolerably deeply into the history and meaning of the Fourteenth Amendment. This episode: the Equal Protection Clause, featuring African-style hair braiders, Georgetown law prof and IJ alum Evan Bernick, and also space aliens in invisible and undetectable craft. Available on iTunes, Spotify, Stitcher, SoundCloud, Google Podcasts, Google Play, TuneIn, and other fine podcasting apps.

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Frontline: The Abortion Divide. PBS. Tuesday, April 23, 10 p.m.

In 1983, in its first season, Frontline aired The Abortion Clinic, documentarian Mark Obenhaus’ matter-of-fact chronicle of daily life (or, depending on your view, the daily taking of life) at a clinic in Darby, Pennsylvania.

Though the show created a stir by showing (albeit in a non-grisly fashion) two abortion procedures, mostly it was notable for demonstrating the flat disconnect between abortion supporters and opponents.

Thirty-six years later, Obenhaus is back in Darby (this time with co-producer Elizabeth Leiter) to take another look at the clinic and the pro-life demonstrators who cluster outside every day. His conclusion: When it comes to abortion, Darby is “even more bitterly divided than it was 36 years ago.”

The “bitter” part is not so apparent—The Abortion Divide is mostly free of the muzzle-velocity rhetoric that dominates this issue—but the division is plain. The two sides, essentially, don’t hear one another at all.

The pro-choice folks, in measured tones, suggest their opponents represent the eternal white male imperative to be the boss of everything and everybody. The pro-life people, on the other hand, think the places they’re picketing are post-modernist Treblinkas and Auschwitzes.

“It’s barbaric to chop a baby up, put it in a little canister, take it out and count the pieces,” says one of the pro-life chiefs. “What kind of world have we entered into, where we do this to our children?”

There is no compromise between these two positions, and perhaps there shouldn’t be. If you believe a fetus (or “pregnancy tissue,” as some of the clinic personnel call it) is just an undifferentiated appendage like a tonsil or an appendix, then why should anybody else have any say about what you do with or to it?

And if you think it’s a tiny person with a small heart but a full-sized soul—the Darby pro-lifers are virtually all devout Catholics—how could you ever countenance what happens to it inside an abortion clinic?

The Abortion Divide, scrupulously even-handed, makes no attempt to sort out the moral questions here, merely recounting their continued existence. And if the show were nothing more than a heat check on the debate—oh, man, they’re still all mad—there would be little point to it. But Obenhaus and Leiter persuaded some of the women, both at the abortion clinic and a nearby facility for unwed mothers run by the pro-lifers, to talk about their feelings as they work through the question of what to do. Their thoughts are startling, sometimes maddening and nearly always touching.

A homeless woman at the unwed-mother refuge is something of a poster child for unlearned lessons; a recovered-for-the-moment drug addict, she has five children in foster homes, two living with her sisters, and a burbling new one in a crib by her side. “Now we’re trying again,” she says. “He’s pretty special—ain’t nobody taking this one.” It’s hard not to want to shake her and shout, “Grow up!” And harder still, watching mother and baby beam at one another, to not believe, just a little bit, in Carl Sandburg’s axiom that “A baby is God’s opinion that the world should go on.”

Yet bad decisions do not respect socioeconomic boundary lines. Down the street at the abortion clinic, another woman, 30-ish and seemingly well-educated and well-heeled, has just learned she’s carrying twins. With a palpable air of embarrassment, she admits the pregnancy is the result of a single act of unprotected sex and an unexpectedly hard-ass universe: “Surely, one time, I’d get some kind of a grace period on that.”

She’s hoping for better luck with the babies themselves—”a sense of peace … with these two beings I’ve chosen not to bring into the world.” She imagines a chat with them before the abortion in which she tells them, “Thank you, and I’m honored to be given this gift of life. Unfortunately, I can’t do it right now.” The twins, alas, were not available to recount their their side of the conversation.

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I haven’t read the Mueller report and I don’t plan to any time soon. I don’t feel like I would gain much by sifting through what’s already been widely acknowledged to be 400-plus pages of Rorschach test. The main point of the “Russia probe” was to figure out whether there was any sort of hanky-panky going on between the former (future?) Soviets and the Trump campaign, and we now know that there was not.

But of course now the story shifts from dark worries about “collusion” to unrestrained outrage over the president’s ham-fisted attempts to “obstruct justice” by unduly influencing the investigation by lying in public and private, firing key players, leaning on witnesses, or otherwise gumming up the works. I trust my Reason colleagues (Scott Shackford, Peter Suderman, Jacob Sullum, and Eric Boehm), each of whom argues to varying degrees that if President Donald Trump isn’t technically guilty of obstruction, it’s not for lack of trying. It’s mostly because his subordinates either refused to follow his orders or screwed things up while trying to do his bidding.

But you know what? I don’t care that much that Trump was trying to obstruct justice in this instance. Certainly, if there is no underlying crime, you shouldn’t get in trouble for lying to the feds, even though it’s technically illegal. Section 1001 of Title 18 of the United States Code makes it a crime to

“knowingly and willfully … make[] any materially false, fictitious, or fraudulent statement or representation” in the course of “any matter within the jurisdiction of the executive, legislative, or judicial branch” of the federal government.

But should it be? We’ll come back to the White House in a moment, but the way this sort of usually plays out for the little people is that, as Jim Talent observed last year in National Review,

The FBI gathers information about a person, finds facts that the person might want to conceal — not because the facts prove a crime but because they are embarrassing for some other reason — then asks about those facts in an interview, on the expectation that the person will lie and thereby incriminate himself.

As Popehat blogger (and Reason contributor) Ken White has detailed extensively, FBI agents are trained to get you to lie, thereby being able to arrest you or squeeze you however they want. As White wrote for Reason a year ago,

In the old westerns, rather than take the trouble of hauling mustachioed miscreants to desultory trials, lawmen would often provoke them into drawing first, thus justifying shooting them down where they stood. A modern federal interview of a subject or target is like that. One purpose, arguably the primary purpose, is to provoke the foolish interviewee into lying, thus committing a new, fresh federal crime that is easily prosecuted, rendering the original investigation irrelevant. Title 18, United States Code, Section 1001, which makes it a felony to lie to the feds, is their shiny quick-draw sidearm. This result not an exception; it is the rule. It happens again and again.

Consider George Papadopoulos. The special counsel secured his guilty plea not for improper contact with the Russians but for lying about that contact to the FBI. Consider Michael Flynn. He too pled guilty not to unlawful contact with Russians but to lying to the FBI about that contact. Consider Scooter Libby, or Martha Stewart, or Dennis Hastert, or James Cartwright, all taken down by the feds not for their alleged original misconduct but for lying about it. Even when catching someone in a lie isn’t enough to force them to plead guilty, it can add charges to a case. Consider Paul Manafort and Richard Gates, charged not just with substantive crimes but with lying to the FBI about them.

There is arguably no person on the planet less sympathetic than Donald Trump. He is a reflexive liar, a blowhard, a bully, and the goddamned president of the United States. He should be a better person on all fronts and there’s no doubt that he should set a better example than he does. But when it comes to obstructing justice, at least when there was no underlying crime, he shouldn’t be in any trouble whatsoever.

Far more important, the rest of us shouldn’t be when we get set up to lie by the FBI or other law enforcement folks who have a tremendous amount of power. At The New York Times, David Brooks suggests that one of the great messages of the Mueller investigation is that it reveals

Trump doesn’t seem to have any notion of loyalty to an office. All power in his eye is personal power, and the government is there to serve his Sun God self. He’ll continue to trample the proper systems of government.

There’s much truth to that formulation, which has been echoed by many of the president’s critics. But there’s a bigger takeaway worth underscoring, one that is vastly more important than Donald Trump who, truth be told, is acting how most presidents have acted in the past and will act in the future.

The bigger takeaway is that the federal government exercises vast and nearly unchecked power over virtually every aspect of our lives. As civil libertarian and Three Felonies a Day author Harvey Silverglate has told Reason, there are literally hundreds of thousands of federal regulations under “each of the federal criminal statutes … [and] you’re just assumed to know [them] and you can be picked up and you can be charged and these are real criminal violations.” And if that doesn’t work, the feds can snag you simply by talking to you. Contempt for Donald Trump shouldn’t obscure that brutal reality, which will outlive the Mueller report and probably most of us, too.

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California can keep all its sanctuary cities and limit local both law enforcement cooperation and private employer cooperation with immigration officials, ruled a panel of federal circuit judges.

The Department of Justice has been challenging three immigration-focused laws passed by California in 2017. One (SB 54) essentially turned the entire state into an immigration “sanctuary,” significantly restricting the ability of law enforcement officers within the state from assisting the Department of Homeland Security in tracking down or detaining illegal immigrants unless they have been convicted of certain crimes. The second (AB 450) prohibits private businesses from voluntarily allowing federal immigration officials to enter non-public areas of their companies, as well as preventing them from accessing their records unless the feds have warrants. The third (AB 103) imposes inspection requirements on federal immigration detention facilities within California.

The Department of Justice argued that all of these laws are pre-empted by federal government immigration law and inappropriately attempted to impose burdens on the feds. Not so for two of those laws, said three judges with the U.S. District Court for the Eastern District of California. It’s federalism!

The judges’ reasoning for rejecting the feds should be familiar to anybody who paid attention to the conflicts as states started legalizing marijuana for medical use. It’s true that the federal government has the authority to round up people in the country illegally or anybody who has committed crimes that allow for deportation. But the federal government lacks the authority to demand state-level assistance in enforcing federal immigration guidelines, much like the federal government cannot force state or local police to arrest people for violating federal drug laws.

“SB 54 may well frustrate the federal government’s immigration enforcement efforts,” the panel ruled. “However, whatever the wisdom of the underlying policy adopted by California, that frustration is permissible, because California has the right, pursuant to the anti-commandeering rule, to refrain from assisting with federal efforts.”

For AB 450, the Justice Department argued that the bill intruded on the relationship between the feds and employers and attempted to impose requirements on federal inspections that weren’t authorized by Congress. Here the judges said that, actually, the imposition is on the relationship between employers and employees. It controls what employers must and must not do, not what the feds can do. The feds can certainly ask an employer to let them inspect a facility without a warrant. But it’s the employer that will get punished if he or she cooperates.

That may sound like a weird dodge, but it does raise the question of what would happen if a business owner challenged the law. By what authority does the state of California tell private citizens when they can cooperate with immigration officials? That’s significantly different from telling government employees when they can work with the feds.

The judges did determine that AB 103 does, unlike AB 450, burden the federal government with demands that are out of the scope of California’s authority in part and that a lower court erred when it concluded this burden was not significant.

So in the end, the court rejected the Department of Justice’s attempts to stop the first two laws from being implemented and sent the third one back down to a lower court for a second look. It’s another loss for the Trump administration, whose legal efforts against sanctuary city practices have been largely unsuccessful.

Read the ruling here.

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