Category: reason

Two years ago today, Houston narcotics officers broke into a house at 7815 Harding Street and killed all three occupants: Dennis Tuttle, a disabled 59-year-old machinist and Navy veteran; his 58-year-old wife, Rhogena Nicholas; and their dog. The couple’s families marked the sad anniversary by filing federal civil rights lawsuits against the city, the police chief, and 13 officers implicated in that deadly home invasion, which was based on a no-knock search warrant that Officer Gerald Goines obtained by falsely portraying Tuttle and Nicholas as dangerous drug dealers.

The centerpiece of Goines’ search warrant affidavit was a fictional heroin purchase by a nonexistent confidential informant. Another narcotics officer, Steven Bryant, backed up Goines’ phony story by claiming he had verified the nature of the “brown powder substance” that supposedly had been bought at the Harding Street house from a “white male, whose name is unknown.” Goines and Bryant eventually were charged with several state and federal crimes, including two counts of felony murder against Goines.

Houston Police Chief Art Acevedo, who hailed the cops who killed Tuttle and Nicholas as “heroes,” would like the story to end there: with two bad apples whose lies led to the regrettable but appropriate use of deadly force against two people who, in turned out, were not actually heroin dealers. But the lawsuits argue that the blame extends to 11 other cops who helped instigate the raid, executed it, or allowed it to happen; Acevedo, who has never apologized for posthumously defaming Tuttle and Nicholas or given a full explanation of why they died; and the city, which built a moldy barrel where apples were bound to go bad and spread their rot.

“Murder, corruption, lies, sex, and perjury—the history of the Houston Police
Department, and in particular, the Houston Police Department’s Narcotics Squad 15, plays out like a scene from Training Day,” says the complaint that Nicholas’ mother and brother filed in the U.S. District Court for the Southern District of Texas. “As approved and encouraged by the leaders of the City of Houston, Squad 15 operated as a criminal organization and tormented Houston residents for years by depriving their rights to privacy, dignity, and safety. This misconduct included (1) a long list of illegal search warrants obtained by perjury, (2) false statements submitted to cover up the fraudulent warrants, (3) a sexual relationship between an informant and police officer, (4) improper payments to informants, (5) illegal and unconstitutional invasions of homes, (6) a long list of illegal arrests and excessive force against Houston citizens, and, ultimately, (7) the murder of Rhogena Nicholas and Dennis Tuttle.”

Goines, the man Acevedo initially described as “a big teddy bear” who was “tough as nails” and had “tremendous courage,” worked in the HPD’s Narcotics Division for 25 years. During that time, according to news reports, court documents, and charges filed by Harris County prosecutors, Goines routinely lied to obtain no-knock search warrants, framed innocent people, handled evidence recklessly, carried on a sexual relationship with a confidential informant, and bilked taxpayers by claiming phony overtime.

This was the guy Acevedo held up as a model police officer, and he did not operate in a vacuum. He was aided and abetted by dishonest or apathetic colleagues, negligent supervisors, and lax judges.

In 64 of 66 cases where Goines applied for search warrants from January 2012 to January 2019, he asked for permission to dispense with the knock-and-announce rule. In 61 of those 64 cases, he claimed the suspect had a gun, which he said presented a threat that justified a no-knock warrant. “Yet even though Goines made arrests in approximately 91.8% of cases,” the Nicholas complaint notes, “he never recovered a single firearm in the subsequent return and inventory list after the search.” Something similar happened in the Harding Street case: Goines claimed his imaginary confidential informant had seen a 9mm “semi-auto hand gun” in the house, but police found no such weapon.

The Tuttle family’s complaint describes five cases in recent years where Goines or Hodgie Armstrong, another narcotics officer, lied about a drug buy to justify a search warrant, as Goines did to frame Tuttle and Nicholas. In one of those cases, Goines obtained a no-knock warrant by falsely claiming that the suspect had a “semi-automatic handgun of a .40 caliber.” When Goines’ colleagues in Squad 15 executed the warrant, they killed a dog but spared the occupant, who received an eight-month jail sentence because he had less than a gram of cocaine.

The Tuttle lawsuit also notes the case of Otis Mallet, whom Goines arrested on trumped-up crack cocaine charges in 2008. Mallett was sentenced to eight years in prison and served two before he was released on parole. After the Harding Street raid led prosecutors to re-examine Goines’ cases, Mallett was declared “actually innocent.” So far, the Tuttle complaint notes, prosecutors have “dismissed nearly 200 cases based on the fact that Goines, now shown to be corrupt, was involved.”

Goines was by no means the only corrupt officer in Squad 15. Since the Harding Street raid, Harris County District Attorney Kim Ogg has charged a dozen current or former narcotics officers with felonies, including lies about overtime and drug purchases.

“Houston Police narcotics officers falsified documentation about drug payments to confidential informants with the support of supervisors,” Ogg said in July. “Goines and others could never have preyed on our community the way they did without the participation of their supervisors; every check and balance in place to stop this type of behavior was circumvented.”

After Ogg announced those charges, which included theft and tampering with government documents, Acevedo released the results of an internal audit that revealed widespread sloppiness, if not outright malfeasance, in the Narcotics Division. And after Ogg announced new charges against nine narcotics officers on Monday, alleging that they had engaged in “organized criminal activity” by falsifying government records as part of “a long-term scheme to steal overtime from the city,” Acevedo said he would look into it.

This was the culture of corruption and impunity in which the Harding Street case unfolded. The case began with a false tip from a neighbor named Patricia Garcia. “For petty and vindictive personal reasons,” the Tuttle complaint says, “she falsely claimed that her daughter was inside the house at 7815 Harding Street, that the house was a drug house, that the female resident was a heroin dealer, and that the residents had guns, including machine guns, inside the house.”

Acevedo would later credulously cite Garcia’s allegations as evidence that Tuttle and Nicholas maintained a locally notorious “drug house.” Even after Goines’ lies were revealed, Acevedo bizarrely insisted that police “had probable cause to be there.” Yet as the FBI discovered, Garcia made the whole thing up. When a federal grand jury indicted Goines and Bryant in November 2019, it also charged Garcia with “convey[ing] false information by making several fake 911 calls.”

The Tuttle lawsuit notes that the patrol officers who responded to Garcia’s call found no evidence to back up her claims. One of them, Nicole Blankenship-Reeves, nevertheless passed handwritten notes about the Harding Street house to Lt. Marsha Todd, “with whom she had a relationship.” Todd, who was in charge of Narcotics Squad 24 and is one of the defendants named in both lawsuits, shared that information with Goines.

Goines claimed he conducted a two-week investigation based on that tip. But he seems to have applied for the search warrant without knowing anything about Tuttle and Nicholas, neither of whom had any criminal convictions. The Tuttle complaint notes that they had lived on Harding Street “for many years” and were “well known and liked by their neighbors” (except for Garcia, presumably). But as Goines’ affidavit shows, he did not even know their names. Unfazed by that red flag, Houston Municipal Court Judge Gordon G. Marcum approved the no-knock warrant a few hours before the raid.

Acevedo argues that Goines’ colleagues in Squad 15 acted in good faith based on a warrant they believed was valid and should not be held responsible for his fabrications. On Monday, after Ogg charged Officer Felipe Gallegos with murdering Tuttle, Acevedo said “the other officers involved in the incident, including the officer indicted today, had no involvement in obtaining the warrant and responded appropriately to the deadly threat posed to them during its service.”

The Tuttle and Nicholas families strongly disagree, saying the cops recklessly used deadly force in a situation that did not warrant it. Acevedo said the first officer through the door “was charged immediately by a very large pit bull,” which he blasted with a shotgun. But a forensic examination of the house commissioned by the families found that the dog was about 20 feet from the front door when it was shot. “The dog was not attacking Squad 15,” the Nicholas complaint says. “Because HPD broke into her house, fired their weapons first, and killed her dog, Nicholas—unarmed and located on the west [side] of the room—began screaming. HPD then filled the room with gunshots.”

According to Acevedo, the cops did that because Tuttle responded to the violent invasion of his home by grabbing a .357 Magnum revolver and firing at the intruders. This week Gallegos’ lawyer said Tuttle fired a total of four rounds, and every one of them hit his targets, striking one officer in the shoulder, two in the face, and one in the neck.

Tuttle’s relatives consider that feat implausible. “Dennis was 5 feet 7 inches tall,” their complaint notes. “He weighed 112 pounds. He suffered permanent disabilities. He suffered from other acute physical ailments which would have impacted his ability to do what HPD claims: he was wearing a brace on his left knee and had an ace bandage wrapped around his right wrist, and he was right-handed. He was not wearing body armor of any kind.”

Tuttle’s family notes that the city has refused to produce medical or ballistic evidence to support the police version of events, and they raise the possibility that the injured officers were hit by “friendly fire.” Assuming that Tuttle did fire at the officers, the complaint says, “he did so lawfully in defense of himself, his wife, and his property, in circumstances under which any reasonable person would conclude that his home was under attack by violent criminals.”

Acevedo claims the cops shot Nicholas because she posed an imminent threat. After the first cop through the door was shot, Acevedo said at a press conference the day after the raid, he “fell on the sofa in the living room,” at which point Nicholas “reached over the officer and started making a move for his shotgun.” Responding to that threat, he said, “other officers in the stack that made entry discharged their firearms, striking that female suspect.”

The independent forensic examination, which was overseen by Michael S. Maloney, a former supervisory special agent with the Naval Criminal Investigative Service, contradicted that account. Maloney concluded that Nicholas “was fatally struck by a bullet from a weapon fired outside the Harding Street Home by a person shooting from a position where the shooter could not have seen Ms. Nicholas at the time she was fatally shot.”

Maloney found that police had fired several rounds through the exterior wall of the house near the front door. Nicholas was hit three times. “At least nine shots hit Dennis,” the Tuttle complaint says, “and dozens of other rounds were fired.” They hit the ceiling, the walls, the stove, and the kitchen cabinets. Contrary to what Acevedo says, that does not look like evidence that the cops “responded appropriately” to a “deadly threat.” It looks like evidence that they fired blindly and wildly.

The lawsuits argue that the officers who participated in the raid are liable for violating the Fourth Amendment by using excessive force or by failing to prevent their colleagues from doing so. The families say the city is liable for encouraging Fourth Amendment violations through “policies, customs or practices” that tolerated them.

According to the Tuttle complaint, the city’s failures included inadequate training, lax supervision of confidential-informant use and tactical plans, and allowing no-knock raids without body cameras, “without the presence of the case agent’s supervisor,” and without “supervisory review of the investigative efforts which support the search warrant affidavit.” Such practices “allowed, encouraged, and assisted Squad 15 to engage in its improper searches and use [of] excessive and deadly force.” For years before the Harding Street raid, the Nicholas lawsuit says, city policy makers “created the precise custom and practice that killed Nicholas by approving, encouraging, ratifying, defending, or covering up the long history of unconstitutional conduct.”

A few weeks after his officers killed Tuttle and Nicholas, Acevedo promised he would “leave no stone unturned to determine the good, the bad and the ugly.” But two years later, despite his promises of transparency and accountability, he and other city officials have yet to answer basic questions about the raid, including what basis (if any) there was to think Tuttle and Nicholas were drug dealers, how many rounds were fired during the raid, who shot whom, and how police know that. Because of that stonewalling, Nicholas family lawyer Michael Doyle said at a press conference today, “the only way we’re going to get to the bottom—or the top—of what really is going on…is by filing a civil action.”

John Nicholas, Rhogena’s brother, said their 87-year-old mother, Jo Ann Nicholas, “is not going to quit. She asks me every day….She says, ‘It’s been two years now. Are they ever going to tell us what happened?'” Although “it’s taken a real toll on her,” he said, “she’s not backing down….We’re not going to quit until we get answers.”

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From U.S. v. Griffith, decided yesterday by Judge P. Kevin Castel (S.D.N.Y.):

Defendant Virgil Griffith is charged in an indictment with conspiring to violate the International Emergency Economic Powers Act (“IEEPA”), 50 U.S.C. §§ 1701–1706. The indictment alleges that an object of the fifteen-month conspiracy was to provide services to the Democratic People’s Republic of North Korea (“DPRK”) without the required government approvals. He now moves to dismiss the indictment …. [U]pon review of the law governing the offense conduct, the indictment states a federal crime and violates no constitutional prohibition….

Griffith asserts that he is an American citizen from Tuscaloosa, who at the time of the acts underlying the indictment, was domiciled in Singapore working for the Ethereum Foundation as a Senior Researcher. His position was similar to a business development manager for the Foundation. As part of his employment and interest in cryptocurrencies, Griffith spoke and gave presentations at various panels or conferences about the technology.

In August 2018, Griffith learned about a cryptocurrency conference in North Korea. Since early 2018, Griffith wanted to establish an Ethereum environment in the DPRK, at one point texting a colleague, “we’d love to make an Ethereum trip to the DPRK and setup an Ethereum node…. It’ll help them circumvent the current sanctions on them.” Griffith also sent texts to a colleague speculating that while he was not sure why the DPRK was interested in cryptocurrencies, it was “probably avoiding sanctions.”

In January 2019, Griffith applied to the State Department for permission to travel to the DPRK, informing them that he would speak at a cryptocurrency conference about “the applications of blockchain technology to business and anti-corruption.” The State Department denied his request, though according to the defense, they did not inform him that traveling to DRPK or participating in the conference would violate United States law. Griffith was determined to attend despite the denial, and sought the approval of the DPRK UN Mission in Manhattan. He sent the mission (via email) copies of his CV, passport, and explained his desire to attend the conference. He was granted a visa a month later.

Griffith flew to the DPRK on April 18, 2019. The conference was held from April 23 to April 24. He flew back to Singapore on April 25. The parties characterize the nature of Griffith’s presentation differently. Griffith claims that he spoke before approximately 100 North Koreans, covering very basic information about use of blockchain technology, use of “smart contracts,” and “information that one could readily learn from a Google search[.]” The government claims that Griffith gave a presentation and answered questions on cryptocurrency topics that were pre-approved by the DPRK and largely surrounded the potential to launder money and evade sanctions. The government obtained portions of audio recordings of the conference that have been produced to the defendant.

Upon returning to Singapore, Griffith visited the U.S. embassy to report his trip, and was interviewed by a State Department official for “several hours.” On May 22, 2019, he traveled to New York and was interviewed by the FBI at their request. On November 6, 2019, he was questioned over the phone by the FBI. On November 12, 2019, he again was interviewed by the FBI, this time in San Francisco, where he voluntarily turned over his cell phone. On or about November 28, 2019, he was arrested at Los Angeles International Airport on a criminal complaint. On January 7, 2020, an indictment was filed charging him with one count of conspiring to violate the IEEPA….

While framed as a challenge to the face of the indictment and its legal and constitutional infirmities, Griffith, in actuality, argues that the facts that are likely to be presented at trial will not support a lawful conviction. His argument vacillates between complaining of the paucity of facts alleged in the indictment and an assertion that the government’s evidence and theory of the case will not succeed in proving a crime: “While the indictment lists not a single allegation of fact, based on the government’s complaint, its filing in this case, and the discovery it has produced to date, it appears that the government’s theory is that by attending and speaking at a blockchain conference in Pyongyang, Mr. Griffith provided ‘services’ because he ‘provided the DPRK with valuable information on blockchain and cryptocurrency technologies, and participated in discussions regarding cryptocurrency technologies to evade sanctions and launder money.'” …

Griffith argues that his conduct does not meet the definition of providing “services” to the DPRK, as he only discussed well-known and well-understood features of cryptocurrency and blockchain technologies…. Griffith relies on United States v. Homa Int’l Trading Corp. (2d Cir. 2004) for the principle that “[t]he term ‘services’ is unambiguous and refers to the performance of something useful for a fee.” He asserts that he was not paid by the DPRK to attend and speak at the conference….

Subsequent Circuit law firmly points to the conclusion that the language in Homa was dicta. The Second Circuit dealt with the same regulation as Homa—the ban of providing services to Iran—in United States v. Banki (2d Cir. 2012). But there, the Banki court noted that reading a fee requirement into the term “services” would allow entities and individuals to provide uncompensated assistance and services to Iranian corporations with no consequence. Instead, the panel looked to the various dictionary definitions of “services,” most of which did not require a fee…. The Court concludes that that Banki is the controlling law in this Circuit….

Griffith further argues that, even if his speaking engagement is considered “services,” the conduct is statutorily exempt from the NKSR under the information exception. As interpreted by OFAC, the exception only applies to materials that are “fully created and in existence at the date of the transactions.”

The exception has not been construed by the Second Circuit. In determining what is included in this exception (again in the context of Iranian sanctions), the Third Circuit has stated that “the key distinction rests between informational materials that are widely circulated in a standardized format and those that are bespoke.” United States v. Amirnazmi (3d Cir. 2011). Griffith argues that because his presentation was nothing more than “high-level publicly available information” without substantive alteration, it falls under the exception. The government characterizes his presentation differently. It claims to have evidence that will show that Griffith drew diagrams on a whiteboard while speaking and concluded his time with a brief question-and-answer session. There is a factual dispute that, in the face of the grand jury’s indictment, can only be resolved by a petit jury….

Significantly, the grand jury has not charged Griffith with a substantive violation of the IEEPA but with a conspiracy to violate IEEPA. The government has represented, both in their brief and at oral argument, that Griffith’s speaking engagement at the April 2019 conference was a major step in a long-term plan to persuade and assist the DPRK in using Ethereum to avoid sanctions and launder money.

Even if Griffith’s presentation at the conference, taken in isolation, did not qualify as the provision of services, or was exempt under the information exception, evidence at trial may be sufficient to demonstrate his guilt in conspiring to provide services. The charged conspiracy is alleged to have been in existence from August 2018 through November 2019, extending seven months after the April speaking engagement. “[T]he law does not require that an indictment set forth every act committed by the conspirators in furtherance of the conspiracy.”

The facts will emerge at trial. The jury will be free to draw reasonable and permissible inferences and will decide the ultimate factual issues. The Court declines the invitation to opine whether the government’s proof will fail to establish “services” falling outside the information exception….

Griffith argues that “[t]o the extent that any OFAC regulation, as applied, criminalizes protected pure speech, it would violate Mr Griffith’s First Amendment rights….”

The difficulty of an as applied challenge in this case arises from its present posture. The indictment charges Griffith with participation in a fifteen-months’ long conspiracy to violate the statute, regulation and Executive Orders. No substantive crime is alleged. In their briefing to this Court, the government and Griffith each venture beyond the indictment and do not agree on the precise contours of the conspiratorial activities.

The government claims that the co-conspirators agreed to advise the North Koreans on how “to evade and avoid sanctions by using blockchain and cryptocurrency technologies.” Griffith asserts that the government’s evidence shows that his remarks at the April conference consisted of only “general articles in the public domain” and “very general information … available on the Internet.” Because the government’s evidence has not been presented at a trial, Griffith’s briefing does not address the seven-month period following the April 2019 conference. He faces a practical difficulty in mounting as an applied challenge to a conspiracy charge in a pretrial setting.

The Court assumes for the purpose of this motion that the regulatory scheme as applied and enforced against Griffith is subject to strict scrutiny. Strict scrutiny applies when the government regulation either “defin[es] regulated speech by particular subject matter,” or “by its function or purpose,” as “[b]oth are distinctions drawn based on the message a speaker conveys.” Such restrictions “are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests.” The narrow tailoring requirement is met only where “the challenged regulation is the least restrictive means among available, effective alternatives.”

The Court concludes that the government has a compelling interest in preventing the provision of services to the DPRK…. The Court also concludes that the regulatory scheme is narrowly tailored to achieve this compelling government interest. First, the regulations and Executive Orders are aimed at a designated country: DPRK. Second, the regulatory scheme has an express exemption that forecloses enforcement against “the exportation to any country of any [pre-existing] information or informational materials … whether commercial or otherwise, regardless of format or medium of transmission.” Third, the regulations implement a licensing scheme. Griffith could have but did not seek a license from OFAC to attend the conference and render services to the DPRK. Lastly, the government seeks to enforce the regulatory scheme against Griffith under a criminal statute that requires it to prove beyond a reasonable doubt that he “willfully” conspired to violate the law. In combination, the Court concludes that the regulatory scheme is narrowly tailored to achieve a compelling government interest and survives strict scrutiny as applied to Griffith.

This holding is consistent with Holder v. Humanitarian Law Project (2010), in which the Supreme Court held that a ban on providing “service” or “material support” to foreign entities designated as “foreign terrorist organizations” survived strict scrutiny. The statute in Holder, in the Court’s words, reached “material support … in the form of speech.” The support at issue consisted generally of “monetary contributions … legal training, and political advocacy ….” But the Court noted that the regulations were targeted only at “designated” terrorist organizations, the criminal enforcement provisions required that the person have acted “knowingly,” and the regulations did not prohibit independent advocacy on behalf of the designated groups, even though it prohibited advocacy in coordination with or at the behest of such groups.

Griffith cites to a Ninth Circuit case sustaining a First Amendment challenge to an OFAC regulatory scheme prohibiting coordinated political advocacy with an Oregon-based group that had been classified as a “specially designated global terrorist.” But there, the proposed services were to be rendered by a fully domestic organization to a “domestic branch office” of a foreign entity. The Ninth Circuit explicitly distinguished the case before it from “the Supreme Court’s concern about foreign nations’ perception of ‘Americans furnishing material support to foreign groups.'”

The Ninth Circuit also concluded that the services under scrutiny … were unlikely to raise any money for the designated terrorist organization, and that even if they did, the organization’s assets were frozen by law. Because of the non-monetary and domestic nature of the advocacy …, the Ninth Circuit held that the organization had “a First Amendment right to engage in the forms of coordinated advocacy that it seeks, such as holding a joint press conference with AHIF–Oregon” and that “[t]he content-based prohibitions … violate the First Amendment.”

Griffith’s challenge has nothing to do with advocacy, whether independent or coordinated. He is charged with knowingly and willfully participating in a conspiracy to provide services to the DPRK, a foreign state which “increasingly imperils the United States and its allies.” It will be part of the government’s burden to prove that (1) Griffith knowingly and willfully joined a conspiracy with knowledge of its unlawful object, i.e. the providing services to the DPRK; (2) that the services were to be more than providing preexisting information; and (3) the services were to be provided without a required OFAC approval. Applying strict scrutiny, the regulatory scheme as applied to Griffith serves a compelling foreign policy interest of the United States and imposes the least restrictive burden on speech.

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Give your answer in the comments, and no fair peeking! I just learned it today, so I don’t advise people to use it unless they’re confident that it’s well-known in their jurisdiction. (A Westlaw search suggests that it’s used in New York and a bit New Jersey, and very little elsewhere.)

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In 2004, Vincent Riveroll became the principal of Gompers Middle School in San Diego. On his first day, he was approached by a student who was puzzled by his outfit. “Why are you wearing a suit?” the child asked. “It’s just going to get ripped when you break up a fight.”

Gompers was part of an all too familiar pattern of inner-city schools suffering from routine violence, low attendance, and poor academic performance. It had been that way for years, creating a sense of hopelessness that wore down even the most committed teachers.

Every year, Gompers lost more than half its staff. Parents and reform-minded faculty wanted to keep standout teachers from leaving by rewarding them for their performance, but San Diego Education Association (SDEA) union officials fiercely opposed any changes to the pay structure, which was based strictly on seniority.

With union officials unwilling to give in, and with falling performance threatening to shut its doors, Gompers had few options. As current teacher Jessica Chapman put it, “Gompers faced three choices: close, be taken over by the state, or transition to a charter school.”

A majority of Gompers parents and teachers joined together and won approval from the school board in 2005 to convert Gompers into a charter school. Free from union control and intransigence, Gompers finally flourished. Test scores rose, the violence was curtailed, and teachers dedicated to the charter school’s mission were hired.

In the years since, the teacher retention rate at Gompers Preparatory Academy has been above 85 percent. It attracts teachers who want to work at a charter school free from the constraints of a contract dictated by union bosses. Despite these encouraging results, California Teachers Association (CTA) officials never accepted the decision of teachers and parents to transition Gompers to a public charter school, which freed it from union control.

Teachers union officials, including many at the CTA, have long opposed charter schools, lobbying against them with countless millions in dues money. Charter schools like Gompers threaten union officials’ control over the taxpayer-funded education system, in which the government grants union officials monopoly bargaining power over all teachers, even those opposed to unionization, to impose a one-size-fits-all contract.

So despite the success Gompers had achieved since shedding the union, union officials turned to a controversial tactic known as “card check” to reimpose its monopoly control over teachers and the school. Under California law, union organizers can bypass any secret ballot election by pressuring, and often misleading, enough of the employees to sign union cards that are then counted as “votes” for the union.

According to Chapman, union agents “got signatures using deceptive tactics and ambushed the rest of us with their sudden introduction letter.…Thanks to laws pushed by the same unions, our [school] leadership was denied the right to get involved. So in January 2019 unionization was forced upon us – we were never even given the respect of a vote.”

Chapman was hardly alone in her opposition to the sudden imposition of the union without an actual vote. Kristie Chiscano, a teacher who left a career as a surgeon to serve Gompers students, sought a school that wasn’t unionized: “I chose to work at a school that didn’t have a union and now they’ve come in and they’re running everything about my contract and my work.”

Chiscano and many of her fellow teachers wanted a secret-ballot vote to remove the union. Under California law, enforced by the Public Employment Relations Board (PERB), public employees must wait one year to request a decertification vote after a union is certified. Chiscano and others collected enough signatures from teachers (over the 30 percent needed) and planned to file the petition with the PERB soon after the one-year waiting period expired.

But when the union got wind of the teachers’ push for that vote, SDEA lawyers preemptively filed “blocking charges” against the school, leading to the PERB’s regional attorney blocking the decertification petition from moving forward. Now, a year after the petition, the election is still blocked because the board’s rules favor union officials over independent-minded employees.

Under PERB policy, public employees’ right to decertify can be blocked even if the employees who signed and filed the petition are not alleged to have done anything wrong. In deciding whether to block a vote, proof of the union officials’ allegations is irrelevant because the PERB must treat them as true. So when Chiscano appealed the regional attorney’s ruling blocking the decertification election, the PERB in Sacramento upheld the block because the regional official was right to assume the veracity of the union’s allegations with no independent investigation.

With free legal aid from National Right to Work Legal Defense Foundation staff attorneys, Chiscano and her fellow teachers continue to fight for a vote, now two years after the union was installed without a vote and over a year after the teachers requested the decertification election. Further, foundation attorneys recently filed charges against SDEA officials for illegal retaliation against Chiscano and Chapman, after union officials published social media posts attacking the teachers for seeking a vote to remove the union.

The teachers’ struggle would likely infuriate one famous union official, their school’s namesake. Samuel Gompers, founder of the American Federation of Labor, believed in voluntary unionism, not coercion. He said: “The workers of America adhere to voluntary institutions in preference to compulsory systems which are held to be not only impractical but a menace to their rights, welfare and their liberty.”

Yet today, rather than working to win the voluntary support of teachers, union officials have fully embraced the compulsion Gompers abhorred, even going so far as to block teachers’ request to simply hold an up-or-down vote on whether they want union representation at all.

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Forty-five Republican senators voted this week against trying Donald Trump on the charge that he incited the Capitol riot, maintaining that it is unconstitutional to consider the article of impeachment against him now that he is no longer president. That argument is very convenient for Republicans who do not want to alienate Trump’s supporters but also do not want to defend the conduct that led to his impeachment. But the fact that the argument is convenient does not necessarily mean it is wrong. While many prominent legal scholars think Trump’s trial is perfectly constitutional, the dissenters make some interesting points that are bound to come up again during the trial.

As Reason‘s Damon Root has noted, there is historical precedent for impeaching or trying federal officials after they leave office. William Blount was tried in 1799 after he had been impeached and expelled from the Senate, and former Secretary of War William Belknap was impeached in 1876, after he resigned. The House conducted an impeachment investigation of Vice President John C. Calhoun in 1827 based on his conduct as secretary of war, a position he no longer held. As a congressman in 1846, former President John Quincy Adams said he was “amenable to impeachment by this House for everything I did during the time I held any public office.”

Last week 150 legal scholars, including Federalist Society co-founder Steven Calabresi and several Volokh Conspiracy bloggers, signed a statement arguing that trying a former president is consistent with the text of the Constitution and the purposes of impeachment. Although Trump can no longer be “removed from Office,” they noted, he can still be disqualified from “hold[ing] and enjoy[ing] any Office of honor, Trust or Profit under the United States” if he is convicted by the Senate.

“The Constitution’s impeachment power has two aspects,” the statement says. “The first is removal from office, which occurs automatically upon the conviction of a current officer. The second is disqualification from holding future office, which occurs in those cases where the Senate deems disqualification appropriate in light of the conduct for which the impeached person was convicted. The impeachment power must be read so as to give full effect to both aspects of this power.”

Limiting the option of disqualification in the way that critics of Trump’s trial suggest, the legal scholars warn, would create perverse incentives. “If an official could only be disqualified while he or she still held office,” they say, “then an official who betrayed the public trust and was impeached could avoid accountability simply by resigning one minute before the Senate’s final conviction vote. The Framers did not design the Constitution’s checks and balances to be so easily undermined.”

The statement also notes that the Framers worried about “the danger of a power-seeking populist of the type they referred to as a ‘demagogue’ rising to the highest office and overthrowing republican government.” They “understood that the source of such a person’s power does not expire if he or she is expelled from office; so long as such a person retains the loyalty of his or her supporters, he or she might return to power.” They “devised the disqualification power to guard against that possibility, and would surely disagree that a person who sought to overthrow our democracy could not be disqualified from holding a future office of the United States because the plot reached its crescendo too close to the end of his or her term.”

George Washington University law professor Jonathan Turley, by contrast, thinks the constitutionality of trying a former president is “a close question upon which people of good faith can disagree.” He concedes that the Belknap case shows “a majority [of senators] viewed impeachment as extending beyond removal for the purposes of a trial,” although he notes that Belknap was acquitted. As for Blount, Turley says, he “did not even show up because he contested the very basis for an impeachment trial of a private citizen,” and “the Senate refused to hold a trial.”

Turley suggests that trying a former president creates some puzzles. “The primary stated purpose of the trial is to determine whether ‘the President…shall be removed,'” he writes. “At the second Trump impeachment trial, the president will be Joe Biden, not Donald Trump. So the Senate will hold a rather curious vote to decide whether to remove a president who has already gone. Moreover, Chief Justice John Roberts is not expected to be present to answer these questions because there is no president to try. Article I states ‘When the President of the United States is tried, the Chief Justice shall preside.’ So the Senate will get someone else. The question is who is being tried. Is he a president? Obviously not. Is he a civil officer? No, he is a private citizen. A private citizen is being called to the Senate to be tried for removal from an office that he does not hold.”

Former 4th Circuit Judge J. Michael Luttig thinks such textual difficulties show that “the Senate’s only power under the Constitution is to convict—or not—an incumbent president.” Turley, who describes the question as “an unresolved issue of constitutional interpretation,” is not so sure. But he is skeptical of the idea that disqualification should be viewed as a remedy independent from removal.

“Removal is stated as the question for the Senate to answer in the trial of ‘the President,'” Turley says. “The Senate may, in its discretion, add disqualification after a president has been removed. The second optional penalty language was expressed as a limitation on the authority of the Senate and again references removal: [The judgment] ‘shall not extend further than to removal from Office, and disqualification.’ Since the Senate does not have to disqualify, it would not seem to be an interchangeable or equal consideration in that respect.”

Leaving the constitutional question aside, Turley worries that allowing impeachment and trial after a president has left office will invite partisan vendettas. “These scholars are arguing that Nixon could still have been impeached and removed after he left office,” he writes. “Indeed, there is no time limit to such retroactive trials, which could come years later as easily as [they] could come weeks later….Under this approach, any new Congress could come into power and set about disqualifying opponents from public office despite their being private citizens. A Republican Congress could have retroactively impeached Barack Obama or retried Bill Clinton. They could insist that there is no escaping impeachment by merely leaving office.  That is why, even if the Senate does not view this as extraconstitutional, it should view this trial as constitutionally unsound.”

Stanford law professor Michael McConnell, a former 10th Circuit judge, is not impressed by these objections. “Whether a former officer can be impeached is beside the point,” he says. “Donald Trump was President of the United States at the time he was impeached by the House of Representatives. The impeachment was therefore unquestionably permissible.” He notes that the Constitution says “the Senate shall have the sole Power to try all Impeachments.” Since that clause “contains no reservation or limitation,” McConnell argues, it is clear that the Senate has the authority to try Trump.

Whatever you make of these arguments, it is not exactly clear what a Senate trial is meant to accomplish in this case. Trump’s impeachment, which was backed by 10 Republicans in the House and gave him the dubious distinction of being the only president ever to be impeached twice, already has served as a strong rebuke that will always be a stain on his record. If a handful of Republicans in the Senate vote to convict him, that stain will be a bit darker. But given that 45 senators did not even want to hold a trial, it seems clear that Trump will not be convicted and therefore will not be disqualified from seeking the presidency again.

There was initially some hope that Trump’s trial would catalyze a Republican repudiation of him, helping to free the GOP from his malign influence. But it now looks like all but a few Republican senators have decided that their careers still depend on kowtowing to Trump and his many ardent followers. Even Senate Minority Leader Mitch McConnell (R–Ky.), who just last week said Trump “provoked” the deadly attack on the Capitol with “lies,” voted against taking up the article of impeachment. McConnell, who reportedly thinks his party’s continued viability depends on distancing itself from Trump, apparently has concluded that will not happen anytime soon.

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