Police Union Chief Claims That Lax Marijuana Enforcement Killed a College Freshman

Last week, an 18-year-old freshman student at Barnard College named Tessa Majors was stabbed to death in a Manhattan park. The New York Police Department (NYPD) believes the killer is a 13-year-old middle school student they have yet to locate. The police have talked to two other middle schoolers who were present at the crime.

Now the head of the Sergeants Benevolent Association, Ed Mullins, is attributing the death to New York’s lax enforcement of marijuana prohibition. He told a radio program:

What I am understanding is that [Majors] was in the park to buy marijuana….We don’t enforce marijuana laws anymore. We’re basically hands-off on the enforcement of marijuana. I understand the mayor made statements that this is surprising on how this can happen in New York City….I really have to question what world he’s living in to think that this is surprising, when we are watching the city slowly erode, with shootings, stabbings, an increase in homicides and, most importantly, a hands-off policing policy.

In such statements, you hear the dying echoes of what might be called the “Reefer Madness mindset,” in which devil weed is the source of all forms of evil and criminality, even when it remains illegal.

New York has a medical marijuana exemption but it is still prohibited under state law to sell, buy, transport, or grow marijuana. Since 2014, the NYPD has been instructed by Mayor Bill DeBlasio not to arrest most people found carrying or smoking pot, even when such use breaks “public view” laws that were routinely invoked to arrest people under the old “stop and frisk” procedures. Since August, possession of under two ounces of marijuana has been a non-criminal, ticketable offense in New York City.

The city’s violent crime levels have remained basically constant in recent years. Through the end of November, the city recorded 299 homicides, up from 275 over the same period last year. Overall, the crime rate was down 1 percent compared to last year. Homicides in New York City peaked at 2,245 in 1990 and this year’s rate remains on par with rates last seen in the early 1950s. New York’s current population is a record high of 8.6 million.

Regardless of the legal status of pot in the Big Apple, does Sgt. Mullins seriously believe that crime and violence around marijuana would increase if it could be purchased legally, like beer, wine, and whiskey? There are still stickups and shootings at corner delis and liquor stores, but no one attributes such crimes to alcohol’s legal status. A major 2017 study found that states on the border between the United States and Mexico that legalized medical marijuana saw decreases in violent crime between 5.6 percent and 12.5 percent. This fall, a study of crime in California and Washington state found that “legalizing recreational use of the drug appeared to have little to no effect on the number of violent and property crimes.” A 2013 study by Rand Corporation for the Office of National Drug Control Policy concluded that “marijuana use does not induce violent crime” and “the links between marijuana use and property crime are thin.”

The full story surrounding Tessa Majors brutal and senseless killing has yet to emerge—including definitive proof that she was trying to buy marijuana. But whatever details come out, it’s hard to see how they will support the idea that maintaining a black market in pot sales will somehow generate less crime and violence than a legal one.

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Justin Amash: Impeachment Manager? Dems Want Former Republican Rep to Help Prosecute Trump

A group of Democrats in the House of Representatives reportedly wants libertarian-leaning legislator Justin Amash to be one of three impeachment managers. The Michigan congressmanwho switched his party allegiance from Republican to independent back in Julyhas been a vocal supporter of impeachment proceedings against President Donald Trump while invoking nonpartisan and high-minded reasons for this support.

Now, “a group of 30 freshman Democrats, led by Rep. Dean Phillips (D–Minn.), has asked House leaders to consider [Amash] for the small group tasked with arguing its case for removing Trump in the upper chamber,” reports The Washington Post, which based its account on talks with “several Democratic officials.” More:

The thinking, according to these people, is that Amash would reach conservative voters in a way Democrats can’t, potentially bolstering their case to the public. He also would provide Democrats cover from GOP accusations that they’re pursuing a partisan impeachment; Amash is one of the most conservative members of the House and a vocal Trump critic.

“To the extent that this can be bipartisan, it should, and I think including Representative Amash amongst the impeachment managers is a smart move both for the country, for the substance and for the optics,” Phillips said, adding that Amash brings an array of qualifications: He’s an attorney, a constitutionalist and “the first and only member of the Republican conference, when he was a Republican, to show courage,” Phillips added.

House Speaker Nancy Pelosi (D–Calif.) would ultimately make the call and is expected to announce managers early this week, multiple Democrats said. Amash did not respond to a request for comment about whether he would accept such a position. But Phillips, who is in touch with Amash about the idea, said the lawmaker has agreed to consider it if asked.

The three impeachment managers picked by Pelosi “will effectively serve as prosecutors making the case to the Senate that Trump deserves to be removed from office over his alleged misconduct centering on the Ukraine scandal,” explains Politico.

Amash has not been directly involved in the House impeachment inquiry proceedings thus far.

Last week, the House Judiciary Committee officially approved articles of impeachment accusing Trump of abuse of power and obstruction of Congress.

Today, the committee released its full report, saying Trump “has realized the Framers’ worst nightmare” and “abused his power in soliciting and pressuring a vulnerable foreign nation to corrupt the next United States Presidential election by sabotaging a political opponent.”

The full House is expected to vote on the articles of impeachment on Wednesday or Thursday of this week, depending on how much time is taken up by debate.


FREE MINDS

A new ruling on Title IX, the law governing sex discrimination in public education, bodes well for rolling back government overreach. From Inside Higher Ed:

A three-judge panel of the U.S. Court of Appeals for the Sixth Circuit ruled that Michigan State University and one of its senior administrators cannot be held liable for student victims’ emotional distress after seeing their alleged perpetrators on campus because the interactions did not lead to further sexual harassment or assault, according to an opinion issued Thursday.

Legal experts said the decision is a narrow interpretation of the protections for victims of sexual misconduct under Title IX of the Education Amendments of 1972, which prohibits sex discrimination, including sexual assault, on college campuses.

More from Inside Higher Ed here. Decision here.


FREE MARKETS

The Hallmark Channel ran a commercial for the wedding company Zola which featured two women getting married and kissing. It then pulled the commercial amid complaints. It has now reinstated the commercial amid more complaints. (File under: The market works better than E.U.–style advertising standards boards at sorting this stuff out.)


QUICK HITS

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A Few More Thoughts On Impeachment

I am grateful for Orin Kerr’s response to my post on impeachment. Years ago, it was fairly common for law professors to respond to each other on legal blogs. In recent years, this sort of discourse has tended to wither away. I largely blame Twitter, which promotes instant, rapid-fire responses. These sorts of exchanges are seldom constructive, and quickly devolve into time-wasting flame wars. People reinforce those they agree with, and drag those they disagree with. We can do better. Orin does better. He disagrees with me, quite vigorously, but does so with reasoned discourse. Thanks Orin. Indeed, I sent Orin two drafts draft of this post in advance to hear his thoughts, and happily incorporated his feedback.

I think our positions are closer than they may appear. First, let me clear up a few points. I do not think an act must be criminal for it to be impeachable. I do not think the enumerated constitutional standards of criminal procedure extend to the impeachment process. There are some norms of due process that ought to be complied with but the strictures of the 5th and 6th Amendments are not controlling.  I do not think that an article of impeachment based on “abuse of power” is void because that term is vague. Nor do I think that the term “abuse of power” is novel, or without precedent. Historically, there have been many articles of impeachment that use that phrase. In short, an article of impeachment premised on an “abuse of power” could be proper, as an original matter, even if the President was not on notice in advance of the precise contours of the offense. I also concur with co-blogger Jon Adler: the term “High Crimes and Misdemeanors” is not an inkblot. And, as far as my research suggests, the first article of impeachment is consistent with that original meaning. 

I hesitate only slightly here because under the Framers’ design, the propriety of an article also turns, at least in part, on policy considerations. The decision to impeach does not depend solely on whether the President’s conduct rose to the level of a high crime or misdemeanor. The decision to impeach, like all decisions to prosecute, is premised on other factors beyond whether the specific elements of the offense were satisfied. In other words, not all impeachable offenses must lead to articles of impeachment (Several of the law professors who testified suggested that the word “shall” in the Impeachment Clause imposes a duty to impeach whenever the President commits such a high crime or misdemeanor. I do not think the word “shall” had such a mandatory meaning at the time of the framing.) Members of the Judiciary committee sued the President more than two years ago for violating the Foreign Emoluments Clause, but opted not to bring such an article of impeachment. Certain pragmatic considerations enter into any decision about whether to impeach.

Another important consideration concerns what precedent will be established. And precedent, not original meaning, was the focus on my earlier writing. I worry about the precedent that will be set by an article based on an “abuse of power.” There are several policy reasons to pause before proceeding down this route. First, an offense defined only after the act fails to provide the accused with any notice of possible wrongdoing. Second, the accused can then charge, perhaps rightfully, that this offense was synthesized with the purpose of simply getting him. Third, members of the public can believe, perhaps rightfully, that the impeachment proceeding is merely a political attack, rather than any process grounded in established law. This argument isn’t precisely premised on the prohibition of ex post facto laws or bills of attainder, but it has similar backing: the House determined that the President’s conduct was an “abuse of power” after he engaged in it. None of these concerns exist when impeachment is tied to a pre-existing, well understood offense. If the House managers wanted to follow that path, they could have included a free-standing bribery charge or a free-standing charge that he intentionally and unlawfully sought to withhold appropriated funds from Ukraine, or both.

These dynamics accordingly create additional burdens that the House must satisfy to substantiate an article based on an “abuse of power” standard, where there are no underlying criminal allegations. And this additional burden occasions certain risks to the process itself. Stephen Griffin articulated this premise on Balkinization:

The articles of impeachment submitted today are arguably the first in American history not to be grounded ultimately in allegations that the president committed a federal crime or other violation of law.  This single fact creates unique opportunities and challenges for both parties going forward.  For Democrats, it means they do not have to worry about whether the established facts satisfy the technicalities of a crime such as bribery or obstruction of justice.  For Republicans, it creates the opportunity to respond by demanding clear criteria for the somewhat abstract offense of “abuse of power.” For example, haven’t all presidents abused their power to some extent?  Democrats have the corresponding challenge of defending their criteria as specific and arguing that Trump is different from past presidents. They go some distance toward doing this in the first article by referring to “the integrity of the United States democratic process.”

The precise novelty of this claim might be nuanced, but the Johnson, Nixon, and Johnson articles all alleged specific violations of law. It is far easier to persuade the public that an article of impeachment is proper, if the claim is based on a well-worn criminal violation that is routinely prosecuted or which has supplied the basis for prior successful impeachments. That is, a crime that has elements and requirements that have been liquidated by judicial, as well as congressional precedent. The public is familiar with the elements of bribery and obstruction of justice. For example, the Mueller report spent considerable time developing each of the three elements of obstruction, when deciding whether the President ran afoul of the law. (Ultimately, Special Counsel Mueller did not make any recommendation.) This approach relies on established law and puts would-be wrongdoers on notice. Such precision is a long-standing feature, not a bug, of how the impeachment process has been carried out to date. In contrast, the House has launched an impeachment based on a newly crafted-political “crime.” 

But here, we are left with an allegation of “abuse of power.” Persuading the public that these allegations rise to the standard of a high crime or misdemeanor, in theory at least, is more difficult than persuading the public that one of the two enumerated offenses (i.e., bribery and treason) is a high crime or a misdemeanor. I say in theory, because at this juncture, I doubt there are many minds that are not yet made up. But Griffin’s point stands: there are additional challenges, and risks by going down the road suggested by the House majority. And this sort of article departs from modern, if not all prior impeachment practice. The burden to justify this expansion rests with those advancing the articles, not those defending against them.

A recent article in the New York Times highlights how opponents of impeachment can view the “abuse of power” allegation as merely political:

Yet Republicans view the current episode through the opposite lens, saying that the Republican-led impeachment of Mr. Clinton was fully justified while the action against Mr. Trump is purely political and unsupported by the evidence.
“President Clinton committed a crime, perjury,” Representative Steve Chabot, an Ohio Republican who voted to impeach Mr. Clinton in 1998, said Thursday as the House Judiciary Committee drafted articles of impeachment against the president. “This president isn’t even accused of committing a crime.” . . . .

On Thursday, Representative Kelly Armstrong, Republican of North Dakota, recited a litany of past presidents of both parties who had drawn charges of abusing their power but were not impeached, and cautioned his colleagues that impeachment was becoming “the new normal.”

“In the history of our country, the party who is not in the White House has accused the White House of abuse of power,” Mr. Armstrong said. “It started 200 years ago, it will continue into the future, except now, congratulations, it will be impeachment every single time one party controls the House of Representatives and the other party is in the White House.”

I developed this theme in an Atlantic essay:

The Senate is heading into uncharted territory. Once articles of impeachment are completely decoupled from any clearly articulated offenses, the burden of charging a president with “abuse of power” is significantly reduced. Moreover, any president who refuses to comply with what he sees as an improper investigation can be charged with “obstruction of Congress.” This one-two punch can be drafted with far greater ease than were the articles of impeachment presented against Presidents Andrew Johnson, Richard Nixon, or Bill Clinton. Without question, Congress can convict a president for conduct that is not criminal. This process is not bound by the strictures of the United States code. Moreover, Congress can begin impeachment proceedings for conduct that is inconsistent with the president’s duty to faithfully execute the laws. This inquiry, though subjective, is a necessary feature of the American constitutional order. But the predicates of the Trump articles will set a dangerous precedent, as impeachment might become—regrettably—a common, quadrennial feature of our polity.

I think the standards set by the House’s proposed articles will make impeachment far easier, even in cases where the allegations are far less severe. 

Finally, a brief comment on the President’s alleged motives. The House report concluded that “Impeachable abuse of power can take two basic forms.” The articles have not alleged the first path: that the President’s exercise of authority “exceeds the President’s constitutional authority or violates legal limits on that authority.” The articles could have predicated conviction on Trump having violated either the statute authorizing military aid to the Ukraine or the Impoundment Control Act of 1974, but didn’t. The articles could have predicated conviction on Trump committing all of the traditional elements of bribery–an offense spelled out in the Constitution–but didn’t. The House impeachers have publicly framed the article as “abuse of power.” 

I flag an issue that does give me some pause. Despite not leading with an article based on bribery, the article references bribery and unlawfully conditioning an appropriation. It is not clear to me, at least, whether the House intended to include a separate claim of bribery, or whether the allegation of bribery is offered as evidence that there is an abuse of power. It is also not clear to me whether the conditioning of an appropriation is unlawful, or if that act is offered as evidence of abuse of power. What exactly are the charges against the President? If the bribery charge or unlawful conditioning claims cannot be substantiated, independently, on what basis can the abuse of power claim be substantiated? In other words, if we are really talking about bribery or a statutory violation, why did the House use the framing of “abuse of power.” I think the House is trying to have their cake, and eat it too. That is, they’re trying to avoid charging the President with a specific crime that may be difficult to convict, but still accusing the President of committing those crimes. An acquittal in the Senate would not necessarily acquit the President of the alleged conduct, because it was never precisely charged.

In this first category–where the President’s exercise of authority “exceeds the President’s constitutional authority or violates legal limits on that authority”–the President’s motives are irrelevant. Additionally, these offenses are well-defined. The President, and everyone else, is on fair notice that such acts could give rise to impeachment. There can be no reasonable claim that the offense was only defined after the fact. For example, the general thrust of my criticism would not be relevant if the House included an article premised on bribery. I doubt the technical elements of the offense could be satisfied. But there is absence of notice; allegations about unfairness fade. 

The House, however, chose the second path: the articles alleged that the President “engag[ed] in potentially permissible acts but for forbidden reasons (e.g., with the corrupt motive of obtaining a personal political benefit).” It is commonplace for Presidents to ask foreign governments to conduct investigations. What renders this request different, the articles contend, is that the object of that investigation was to injure the President’s political rival. And impeachment will turn on an assessment of the President’s motive. A corrupt motive would, according to the proponents of impeachment, transform a “permissible act” into an “abuse of power.” Effectively, they contend that otherwise legitimate presidential actions taken with a corrupt motive are, by definition, not faithful executions of the law. (I discussed that theory here.) The article now turns on what was in Trump’s head. If he had proper motivations, then there was no impeachable offense. Such an article sets an important, and risky new precedent: going forward, I fear that many presidential actions with potential consequences to the party not in the White House will be seen as corruptly motivated, and thus subject to impeachment. 

There are some other areas of difference between Orin and me, but I will leave it here for now. 

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Was This the Decade We Hit Peak Free Speech?

Speech has never been freer than it was in this decade. But only if you take a broad view of what free speech means, and only if you look at the right parts of the decade.

There is an argument that says free speech isn’t just a matter of stopping direct government censorship, nor of keeping the state from indirectly chilling what we say. True freedom of expression, the theory goes, requires a broader culture of free speech—a society where art, information, and commentary face fewer restraints of all kinds, not just the restraints that have the government’s guns behind them.

Now, I’m not crazy about conflating the concept of free speech with those bigger, messier social questions. But they are undeniably linked—a culture hostile to open expression is surely more likely to pass legal limits on speech—and those big social questions are worth thinking about in their own right. So let’s roll with it. If by “free speech” you mean the capacity and willingness to speak, not just a shield from the institutions that could forcibly stop you from speaking, then the early to mid 2010s arguably saw the freest speech in history.

As the decade dawned, it was cheaper and easier than ever before to create and transmit a text, an image, or an audio or video recording. That transmission, in turn, had a bigger chance of reaching an audience. People didn’t waste that opportunity: Both the volume and the variety of widely available speech exploded. Whole new media ecosystems appeared. Budding musicians did an end run around the record labels, sketch comics did an end run around cable TV, and YouTube DIYers did an end run around licensed plumbers and repairmen. In the political world, the Overton window widened and a flood of oddball ideological tribes poured in—some of them rather unappealing, but that’s how it goes with unfettered expression.

That in turn provoked a backlash, and for the last several years we’ve seen a series of efforts to clamp down on all that uncontrolled chatter. There have been heightened calls for censorship from the left, right, and center, sometimes directed at new sorts of speech (bots, code for printing weaponry) but usually aimed at targets that feel familiar (sex-work talk, terrorist propaganda, hate speech, marchers wearing masks), sometimes so familiar that they’re moldy (pornography, Russian subversion). Beyond that, there was a broader feeling of brittleness around all that unfamiliar or unpleasant expression; even critics who would never call for censorship sometimes went overboard when attributing ill effects to speech they disliked. Meanwhile, the biggest conduit for all those emerging ecosystems of expression—the internet—seemed to be growing not just more censored but more centralized, more surveilled, more controlled. That was true not just in purely online spaces but in the dissident movements that at times use cyberspace to organize and communicate. Around the world, it became clear that it wasn’t just protesters who were imitating and adapting each other’s tactics; the regimes that they were protesting watched and learned from each other too.

All of that raises the question: Did we just witness Peak Free Speech? Will the first half of this decade be remembered not just as a time when speech was less fettered than ever before but as a time when it was less fettered than it will ever be again?

Freedom vs. Tolerance

I may have rushed too quickly past the question of what a “culture of free speech” is supposed to be. It’s not a term that everyone uses the same way. The people who throw around that phrase often claim, or at least assume, that certain sorts of speech are more conducive to open expression than others. Some of them suggest that speech should be more civil; others think it ought to be more oppositional. Most of them want the speech, or at least the speakers, to be tolerant of other points of view.

But freedom and tolerance simply aren’t the same thing. Both are valuable, but they’re often going to be in tension with each other.

Civil libertarians need to be clear-eyed about that. Speech has always included gossip, shaming, and other tools for enforcing conformity. In the past those sorts of speech may have been confined to a single village or middle school, but now they have a global reach. Some testy “free speech” debates of the last decade have really just been battles between different collections of culture warriors, each circulating misleading screenshots as they try to shout the other side down. That may look like illiberal intolerance, but it also looks like a lot of lively speech. It’s not a sort of speech that I like, but some form of it has always been a part of public life and it isn’t likely to go away anytime soon.

The more important issue, at least as far as the future of free speech is concerned, is whether the institutional environment makes it easier or harder for intolerant people to muffle the speech they don’t want to hear. And this is where the most significant change happened. From the ’70s through the ’00s, America’s electronic media grew ever more decentralized and participatory. Not so in the ’10s, as the social media services that made publishing so quick and easy also brought more of that publishing under consolidated corporate control. The result was the difference between getting kicked off an email list and getting kicked off a social media network: Both may be cases of a private association exercising its right not to give you a platform, but one has a much bigger impact than the other when it comes to whether your voice is heard.

This didn’t mean we reverted to the bad old days of just three big TV networks, or even to the 500-channel universe of the late cable era. It was still ludicrously easy by 1990s standards to get a homemade piece of media in front of a substantial audience. But it was also more likely that your homemade media would suddenly be obscured. That might be because you broke a platform’s rules; it might be because an algorithm mistook your photo of a nude sculpture for pornography and improperly assumed that you had broken a rule; it might be because you were mass-reported by the sorts of assholes that the rules were supposed to address. (Time and again, a social media company would create a system that was supposed to keep out the bigots and trolls who harass people, only to learn that the bigots and trolls had found a way to turn the system itself into a tool for harassment.) The result was more Brazil than 1984: a control apparatus full of leaks and loose wiring.

Governments encouraged the process, passing mandates that fostered both the proliferation of rules and a sloppy sort of enforcement. Germany, for example, started implementing a law last year that informed platforms that they had just 24 hours to take down “obviously unlawful” hate speech or face a steep fine. Inevitably, this combination of stiff penalties and narrow time windows prompted companies to suppress first and ask questions later, even if that meant excising speech that didn’t actually violate the law. (In one infamous example, the nominally anti-racist statute was used to remove some anti-racist satire.) That’s bad enough for the Germans, but in a global internet decisions made by the government of Germany—or any other wired nation, from Britain to China—can affect what people around the world can see.

Centralized platforms make the task that much easier. As Declan McCullagh wrote in Reason this year, they offer “a single convenient point of control for governments eager to experiment with censorship and surveillance.” A culture of freer speech might require a technology of freer speech—a more decentralized internet with fewer chokepoints, one built around protocols rather than platforms.

The Global Spring

All that said, there is one big reason to think the pendulum may already be swinging back in speech’s direction. This year saw an astonishing level of public protest around the globe, adding up to a revolutionary moment on par with 1968. Unrest has swelled everywhere from France to Hong Kong, from Chile to Indonesia, from Iran to Ecuador, from Haiti to Spain. Such movements have already brought down governments in Algeria, Iraq, Lebanon, and Sudan. In Bolivia, mass protests preceded the ousting of leftist president Evo Morales and then more mass protests greeted the new right-wing regime of Jeanine Áñez. Here in the U.S., last year saw the biggest strike wave in more than three decades, and we may be on track to top that in 2019.

These movements have been sparked by a wide variety of grievances. Their supporters come from a wide variety of ideologies. They use a wide variety of tactics, not all of them limited to nonviolent speech and assembly. It would probably be hard to find someone who backs every single one of them. But put together, they represent a surge in people’s willingness not just to speak out but to take risks to do so. That too represents a sort of culture of free speech, even though many of these regimes have reacted to the unrest with a repression that does not remotely resemble free speech in the legal sense.

Those movements are learning from each other, too: When one of them figures out a way to evade censorship, surveillance, or police assaults, the others take heed. (We live in an era when Hongkongers can be recorded neutralizing tear gas in the summer, videos of the technique immediately circulate on social media, and by October protesters in Chile are doing the same thing.) After a decade of authoritarian governments adjusting themselves to the ways protesters organize themselves on- and offline, the momentum is with the dissidents again as they find ways to adjust their tactics in return.

A decade that began with the rise and fall of the Arab Spring is concluding with a Global Spring. And while that could conceivably end with the most vicious clampdown of all, it’s also the best reason to hope that what looked like Peak Free Speech was really just a temporary speech recession.

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Lindsey Graham, Elizabeth Warren, and the Impeachment Trial Oath

The Constitution specifies that the “Senate shall have the sole Power to try all Impeachments,” and that when “sitting for that Purpose, they shall be on Oath or Affirmation.” The Senate rules have long specified the oath that the senators will take at the start of an impeachment trial. They will each have to affirm that “in all things appertaining to the trial of the impeachment of Donald J. Trump, now pending, I will do impartial justice according to the Constitution and laws.”

Things are about to get a little awkward. Lindsey Graham has apparently committed himself to being the most sycophantic senator in the Republican caucus. Thus, as the House prepares to impeach the president, Graham felt the need to publicly declare, “I am trying to give a pretty clear signal I have made up my mind. I’m not trying to pretend to be a fair juror here” and “I’ve clearly made up my mind, I’m not trying to hide the fact that I have disdain for the accusations and the process.”

But Graham is hardly alone. Republican senators have been badgered for months on the question of whether Trump should be impeached and removed—often by those hoping they would say, “yes.” Some have demurred. Some have clearly indicated that they expect to vote to acquit. Democratic senators are no different. Elizabeth Warren has been calling for the president’s impeachment and removal for months. Others have likewise found it to be politically expedient to show that they are card-carrying members of “the resistance” and want Trump to be ousted from office as soon as possible.

This has led to some silliness, such as the suggestion that Chief Justice John Roberts should refuse to allow Lindsey Graham to participate in the Senate trial or that the Democratic senators running for the presidency should recuse themselves. No one should hold their breath waiting for individual senators to recuse themselves or for the Senate as a whole to vote to recuse any senator. Each and every senator, from the most dedicated Trump loyalist to the most fierce Trump critic, will have the opportunity to vote on whether the president should be convicted of high crimes and misdemeanors.

We’ve seen worse conflicts of interest. When President Andrew Johnson was put on trial in the Senate in 1868, the senators who sat in judgment of him were not exactly disinterested parties. The Republican Congress had set up the impeachment by passing the Tenure of Office Act, over Johnson’s veto, barring him from removing Cabinet members without the consent of the Senate and including in its terms that any violation would be a “high misdemeanor.” Republican senators gave instructions to Johnson’s secretary of war as the president sought to fire him, and thus played a key role in the very event that was the basis of the president’s impeachment. Ohio senator Benjamin Wade would assume the office of the president if Johnson were convicted. Tennessee senator David Patterson was the president’s son-in-law. Both were allowed to participate in the trial. The right of their constituents to have their representatives in Congress participate in the impeachment and trial of the president was understood to be far more important than the right of the president or the House to exclude senators who might be less than impartial judges. Legislators have sometimes asked to be excused from voting in such proceedings, but they have never been disqualified from doing so.

The Senate impeachment trial is not like an ordinary judicial trial. Senators are understood to already be familiar with the case by the time it reaches their chamber. They are not shielded by the rules of evidence from hearing the kinds of testimony or seeing the kinds of documents that might be regarded as too prejudicial in an ordinary courtroom. They are not expected to be sequestered so as to avoid publicity regarding the case. They are not instructed to avoid discussing the case with others. Senators can expect to be relentlessly lobbied by their constituents, their colleagues, the media and others up until the moment that they cast their final vote. The Senate took a recess during Andrew Johnson’s trial so that the senators could attend the Republican national convention, which nominated Ulysses S. Grant for the presidency and debated whether to endorse the impeachment and whether to condemn the Republican senators who would not vote to convict.

The senators are not jurors in a legal trial. They are political actors charged with the task of inquiring into an officer’s alleged misconduct and taking whatever action might be necessary to secure the public interest (constrained by the constitutional limit of removal and disqualification from office—no beheadings allowed).

The senators have a duty to do impartial justice according to the Constitution in the impeachment trial of the president. That surely means, among other things, that they have a duty to vote to acquit if they believe that the president has not committed an impeachable offense under the Constitution. It means that they have a duty to conduct a trial that provides both sides an adequate opportunity to present their case. They have a duty to consider the evidence and the legal arguments that are relevant to determining whether the president has committed an impeachable offense. They have a duty to vote to convict if they believe that removal is constitutionally justified.

That does not mean that they have to wait until the formal start of a trial to start assessing whether an officer has committed impeachable offenses or limit their deliberations to the specific evidence and arguments that the House managers and the counsel for the president might present on the Senate floor. That does not mean that they have to sit for the impeachment trial with an open mind and no prejudgments on the merits of the case. That does not mean that they have to refrain from making public statements about an officer’s conduct.

It is readily imaginable that an officer might commit obviously impeachable offenses in broad daylight and in plain sight of all the members of Congress. In such circumstances, the House might rush to impeach with no elaborate investigation, and the Senate might rush to convict with no extended deliberation. No one imagines that the senators do not know what everyone else knows.

It is to be expected that when attempting to impeach a high government official like the president that the House will spend substantial effort trying to develop its case in public before taking a vote to impeach precisely in order to build political momentum behind the impeachment effort and establish a public justification for taking that grave step. No one expects the senators to be less informed about what the House is up to than the average voter back home.

When the transcripts of the White House tapes were released, revealing the extent of President Richard Nixon’s complicity in the cover-up of the Watergate break-in, senators did not hesitate to publicly express their belief that the president had engaged in serious misconduct. In the final days of the Watergate crisis, the president was visited by a group of Republican congressional leaders, including Senator Barry Goldwater and Senate minority leader Hugh Scott. They were there to deliver the bad news that Nixon’s support in the Republican ranks in the House and Senate had collapsed. Nixon resigned shortly after Goldwater and Scott told him that he would not have enough votes in the Senate to win an acquittal. No one thought the senators were failing to do their constitutional duty by not reserving judgment until a Senate impeachment trial. The senators could read the newspapers like everyone else and could make up their own minds, and they had done so.

Lindsey Graham has not covered himself in glory during the Trump impeachment saga, and he does not do justice to his constitutional responsibilities by publicly posturing as not just close-minded but positively uninformed. Senators have an obligation to scrupulously adhere to the forms and expectations of their constitutional office, and sometimes that means saying that you will actually read the transcripts. Senators on both sides of the political aisle subvert public confidence in our constitutional institutions by maximizing their partisanship in the midst of an impeachment inquiry. You can think an impeachment is misguided and insufficiently supported by the facts and the law, and you can think the opposite, without suggesting that you do not care about the facts and the law.

Senators should do better, not only to live up to their constitutional responsibilities but also to preserve faith in our constitutional system. But just because senators already know how they expect to vote in a Senate trial does not in itself mean that they will be violating their oath. And it certainly does not mean that they will not be allowed to vote on whether to convict the president of high crimes and misdemeanors. Whether they have made the right call on whether the president should be convicted and removed will be a matter for their constituents to consider when next they stand for election.

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Tulsi Gabbard: The Anti-War Candidate

Since her entry into the Democratic presidential primary race, Hawaii Rep. Tulsi Gabbard has been running against war. Gabbard, a National Guard major who served twice in the Middle East, launched her campaign by telling CNN, “There is one main issue that is central to the rest, and that is the issue of war and peace.”

In June, she used a primary debate to blast President Donald Trump’s decision to pull out of America’s nuclear arms agreement with Iran, warning that “Donald Trump and his chickenhawk cabinet—Mike Pompeo, John Bolton, and others—are creating a situation where a spark would light a war with Iran.” But she also went after her own party’s acquiescence to permanent war, asking Ohio Rep. Tim Ryan (who has since exited the race), “Will you tell the parents of those two soldiers that were killed [recently] in Afghanistan that we have to be engaged? That is unacceptable. We have lost so many lives. We have spent so much money.”

Gabbard’s staunch anti-war stance has led to accusations of disloyalty and even possible foreign allegiances, with 2016 nominee Hillary Clinton musing in October that a Democratic candidate was likely being “groomed” to play spoiler in the 2020 race. That candidate, Clinton warned without explicitly naming Gabbard, “is the favorite of the Russians.” Gabbard shot back that she was running for president to “undo Mrs. Clinton’s failed legacy.” The fight seemed to work to Gabbard’s benefit: After polling near the bottom of the field for much of the summer, the Hawaiian’s numbers have shot up in the important early primary state of New Hampshire.

In October, Gabbard sat down with Reason‘s John Stossel to talk about the pitfalls of endless war, the pros and cons of expanding Medicare and government-funded college, and why military spending is every bit as important as health care.

Reason: You often say you know the costs of war. What do you mean?

Tulsi Gabbard: I am a soldier. I have been serving in the Army National Guard now for over 16 years, and I deployed twice to the Middle East. I’ve served in Congress now for nearly seven years on the Foreign Affairs Committee, the Armed Services Committee, and the Homeland Security Committee. And so from both perspectives, I understand the importance of our national security.

As a soldier, I served in a field medical unit in Iraq in 2005, during the height of the war. Our camp was about 40 miles north of Baghdad, and it was something every day that we all experienced firsthand: the terribly high human cost of war—of our fellow soldiers, friends of ours, who were killed in combat. And the toll that continues now with veterans coming home with visible and invisible wounds, dealing with post-traumatic stress.

You’ve said the best way to honor our troops is to make combat the last option. We don’t do that?

We have to honor our servicemen and women by only sending them on missions that are worthy of their sacrifice. Now, like so many Americans after Al Qaeda attacked us on 9/11, I made the decision to join our military. To enlist, to be able to go after and defeat those who attacked us on that day, to defeat that great evil that visited us.

Unfortunately, since that time, our leaders failed us. Instead of focusing on defeating Al Qaeda, they’ve instead used that attack on 9/11 to begin to wage a whole series of counterproductive regime-change wars, overthrowing authoritarian dictators in other countries. Wars that’ve proven to be very costly to our service members, to the American people—

Plus to Saddam Hussein, Moammar Gadhafi.

Hussein, Gadhafi, and the ongoing regime change that’s still happening in Syria today.

So in Afghanistan, you would’ve gotten out when?

Go in, defeat Al Qaeda, get out. That’s what should’ve happened. Instead, what we’re seeing now is a very long, protracted, ambiguous mission where no one really knows what “winning” looks like. And the ensuing nation building that’s followed in these different wars, that’s taken so much of our resources, our taxpayer dollars, out of where they should have been dedicated—in nation building and serving the needs of our people right here at home.

If we just pulled out, wouldn’t there be more slaughter?

If we stay focused on what our mission and objectives should be, which is the safety and security of the American people, then we end up saving a whole lot of lives [and] we end up saving a whole lot of taxpayer dollars. The conflict and the complexities and the challenges, for example in Afghanistan, that we’re seeing continuing over the years and through today are things that only the Afghan people can resolve. What we’ve got to stay focused on is how we ensure the safety and security of the American people.

There seldom is a discussion that I’ve heard asking, “What is our mission?”

That’s exactly the problem. Before sending our men and women into harm’s way, we’re not hearing, “What is the problem that we’re trying to solve, and what is the clear, achievable goal that we’re sending them to do?” Without that, we end up with the result that we have, where we have troops who are deployed in these countries without a real understanding of what they’re there to accomplish, and at what point they’ve accomplished that and then can come home.

Let me get your response to this op-ed in The New York Times from some years back about Syria: “Five reasons to intervene in Syria now: It would diminish Iran’s influence in the Arab world.”

Let’s look at what’s happened in Syria. Because of the regime-change war that we’ve waged there, because of the regime-change war that we waged in Iraq, Iran has far more influence in both of those countries than they did prior to our going in. This is exactly one of the [times] where we see how our intervention has been counterproductive to our own interests.

The argument was that this could keep the conflict from spreading to Lebanon and Iraq.

Once again, look at the costs that the Syrian people have paid as a price and the impact that it’s had on the region as a whole.

Something that these articles often fail to recognize is that terrorism groups like Al Qaeda and offshoots like ISIS have been strengthened, to the point where now we just observed the 18th anniversary of the attack on 9/11, and Al Qaeda is stronger today than they were in 2001 when they launched that attack.

But there is a human rights crisis in Syria, and our hearts go out to them. We want to help.

Absolutely. We want to help. What we have been doing has been making the problem worse. This is what is so often the case when these regime-change wars are waged in the guise of humanitarianism, saying, “There are people suffering under an authoritarian regime. We have to go in and help them.”

But if you look at these examples throughout our country’s history, our going in and toppling that brutal dictator has not made their lives any better. [It has] resulted in more death, more destruction, more pain and suffering, more refugees. This is why we’ve got to stop being the world’s police. If we want to be a force for good in the world, let’s actually make sure that what we are doing effects a good outcome.

So what’s going on with your party? Democrats used to be the anti-war party.

Unfortunately, this is something that crosses both parties. I call out leaders in my own party and leaders in the Republican Party as well, who are heavily influenced by the military-industrial complex that profits heavily off of us continuing to wage these counterproductive wars.

They’re heavily influenced by the foreign-policy establishment in Washington, whose whole power base is built around continuing this status quo. So much so to the point where, when I’m calling for an end to these wasteful wars, they’re saying, “Well, gosh, Tulsi. Why are you such an isolationist?” As though the only way that we can relate with other countries in the world is by bombing them or putting crippling economic sanctions in place. Rather than seeing, “Hey, we’re the United States of America. We have the opportunity to be a force for good. To reach out to other countries. To show respect. To find those areas of common interest where we can work together for the well-being of our people and the planet. To be able to work out those differences that we have rather than resorting to war.”

If you were president a few years back, what would the alternative have been with Syria? How would we have worked with them?

Well, first of all, making sure that we don’t launch a regime-change war. That war began, a lot of people don’t realize, all the way back in 2011. And it began with a covert mission working through the CIA to arm and equip and provide support to terrorist groups in that country, like Al Qaeda, to overthrow the Syrian government.

This is something that has now been published out in the open. And it continued to further escalate, both through covert and overt means, using the Department of Defense.

Now we have the conflict with Iran.

Yes.

They apparently were responsible for the recent attacks on Saudi Arabia. What would you do?

If I were president today, I would end this cycle of retaliation, this tit for tat that we’re seeing. What happened in Saudi Arabia was an act of retaliation to the sanctions and the blockade against Iran, basically stopping them from being able to sell any of their oil on the market.

You’d remove the sanctions.

I would get Iran and the United States to re-enter the Iran Nuclear Agreement, to make sure that Iran is not continuing to move forward in building a nuclear weapon. Get those inspectors back in there. And I would remove those crippling sanctions.

I’m going to quote Sen. Lindsey Graham: “A weak response invites more aggression.”

So if we do what Lindsey Graham says and we come in with a strong response, a retaliatory attack, how does then Iran respond? These are the questions that these policy makers and the media too often don’t ask….If we follow down the Lindsey Graham approach, what we end up with is an escalation of this tit for tat: retaliation, attack, counterattack, counterattack. And what it’ll result in is an all-out inferno, not only in Iran but across the entire region.

It’s unimaginable to think about how many servicemen and women would lose their lives in such a war. How many people in the region would be killed, refugees forced to flee. And how many more trillions of our taxpayer dollars would be taken out of our pockets, out of our communities, to go and pay for a war that is completely unnecessary and that actually undermines our national security.

Let’s move to a domestic area where you agree with libertarians. America locks up an unusual number of people: 2 million at the moment. More than Russia or China.

Our criminal justice system is so broken, and it’s perpetuating the problems that have caused this kind of mass incarceration that we’ve seen. I have the only bipartisan bill in Congress that would end the federal marijuana prohibition.

This is one easy first step that we can take to begin to end this failed war on drugs that has unnecessarily filled our prisons, and that has really been a drain on our resources, both from the law enforcement perspective as well as within our criminal justice system.

People say it’s a gateway drug and the country has to send the message to children that it’s not OK. You’re going to let it be legal everywhere?

We should. This is a free country. I’ve never smoked marijuana. I never will. I’ve never drank alcohol. I’ve chosen not to in my life. But this is about free choice, and if somebody wants to do that, our country should not be making a criminal out of them for doing so. I think this is the hypocrisy of the argument that we’ve heard since this war on drugs began, which is, “We really care about you. We really care about your kids. So if you are caught using this drug, we care so much about you that we’re going to arrest you, and we’re going to give you a criminal record, because we don’t want you to hurt yourself.”

So once we’re an adult, we own our own bodies and we ought to be able to poison them if we want?

Yes.

But you haven’t proposed legalizing heroin or cocaine or meth?

That’s the direction that we need to take: decriminalizing an individual’s choice to use whatever substances that are there, while still criminalizing those who are traffickers and dealers of these drugs.

But I’m confused by that. Because you say, and I agree, “It’s my body, let me do what I want.”

Yeah.

But you call the sellers “traffickers.” They’re only traffickers because it’s illegal. Isn’t that hypocritical? You can use it but nobody can sell it to you?

No, it’s not at all. I think there’s a difference here, where you have those who are profiting off of selling substances that are harmful to others, as opposed to those who are making those choices on their own to do what they wish with their bodies.

There are some models of this in other countries who’ve taken this approach. What we’ve seen in Portugal is how they are not treating drug use as a criminal action but instead as a health care one. For those who are dealing with substance abuse and addiction, rather than throwing them in prison and giving them a criminal record, we’re actually providing them with the treatment that will get them and their lives back on track.

That’s been good in Portugal. There are even fewer people using drugs now.

That’s exactly right.

The leader in the Democratic primary race is Elizabeth Warren. Are you happy with that? Obviously, you would rather it be you.

I’m focused on our campaign and how we can continue to connect with voters in early states and all across the country, and sharing with them the kind of leadership that I would bring.

Your campaign pitch has been: Instead of all this military spending, focus on rebuilding communities at home.

We are in a new Cold War. We have escalating tensions between the United States and nuclear-armed countries like Russia and China—a new arms race. Trump tore up that [Intermediate-Range Nuclear Forces] treaty that [Ronald] Reagan and [Mikhail] Gorbachev negotiated, sparking off billions more dollars to build these missiles that were banned under that treaty.

All of this amounts to an incredible cost that, whether they realize it or not, every single one of us as taxpayers are paying. Those dollars should either be used to decrease the deficit that we have or to serve the needs of our people.

But you would still have a military, right? How much would it be cut? How much would be left?

I don’t think it’s an arbitrary number. I think, once again, focus on what is our objective. Our objective must be to have a strong and ready, capable military able to fulfill their mission of protecting and defending our country and the American people.

We’ve got troops who are deployed in so many countries around the world.

Something like 80 countries.

But the questions that aren’t really asked, even in the Armed Services Committee where I serve, are, “Well, how many of those countries actually require a prolonged U.S. presence to serve our interests?”

So what happens in the Committee?

Here’s the issue. There’s this fearful word called “BRAC”—Base Realignment and Closing—right? People actually vote against that commission from doing their job, which is to look at these bases around the world and here at home and say, “Hey, do we still need them? Are they still performing a necessary function for our national security? And if not, let’s repurpose them or shut them down.”

We should explain this for people who don’t know what BRAC is. It was created because the military wanted to close some bases. But the local congresspersons said, “Oh, not my base.”

That’s right.

So they then said, “We’ll create a committee so that you politicians won’t have to take the heat.”

Exactly. Create a commission who can be the neutral arbiters. The member of Congress [will be able to] say, “Well, hey, this commission is the one who decided this.” But still the member of Congress fights against what that commission has recommended, rather, once again, than looking at this from an objective perspective, of being responsible caretakers for the taxpayer dollar and looking at what is actually necessary for our military to be able to do the job of protecting and defending our country. So I think there’s a huge opportunity to reduce defense spending in that area.

You would reduce military spending and spend that money domestically. You want Medicare for All.

I want to see Medicare Choice. So right now, as people, we’re spending far more on health care than any other developed country in the world….I agree with the concept of Medicare for All, what I would call Medicare Choice, because it provides for that lower-cost quality health care for every American, regardless of how little you may have in your pocket. But also allowing for those who, if you want to keep your employer-sponsored health care plan, or if you’ve got a union that’s negotiated a great health care plan, or if you just as a private citizen would rather pay into a private complementary plan, you should have the freedom to do so.

And we can afford this? Bernie Sanders, who promotes it, admits it will cost $3 trillion [annually]. Cutting unnecessary military spending will be enough?

By bringing down our defense spending, by ending these wasteful wars, [by stopping] the new Cold War arms race, we’re bringing back a lot of resources that would otherwise continue to be spent there.

With health care, we’re reducing the costs. This is the key component: We’re already paying for this one way or the other. Right now I get a certain chunk of money taken out of my paycheck every month that goes to Blue Cross Blue Shield for the insurance for my family. Instead of that amount of money going to Blue Cross Blue Shield, then that amount of money would instead be going to a Medicare Choice plan, except it would be less.

Much as I would like to cut the military, I don’t see how you can get the money, because the military’s entire budget is $700 billion. That’s a long way from $3 trillion.

It’s actually more. It’s actually more. I mean, $700 billion is the direct amount every year that goes to the Department of Defense. But that does not include the hundreds of millions of dollars that go towards the slush fund—the Overseas Contingency Operations fund—which has no constraints on how the Department of Defense is spending those dollars. Those are not accounted for within that budget.

OK, add $100 billion or $200 billion. It still comes nowhere close to what you and your fellow Democrats want to spend. Free college, Medicare for All—we can’t afford this stuff. Don’t you think colleges already waste a lot of money?

They do. Absolutely. And that’s why I think those who are talking about free college—I think that we do need to make sure that our young people are getting opportunity, whether it’s for vocational training, apprenticeships, college, community college. There’s a lot of opportunities there for people to get the skills that they need. But in order to do this, we have to address the overarching issue, which is: Why is it costing more and more and more every single year?…This is the problem. Just throwing more money at it isn’t going to solve it. So we have to deal with the systemic problem here, the root cause of the problem.

I spoke with a college professor recently about this issue. He said, “You want to see why it’s costing more and more? Why don’t you look at how much administrators of a lot of these colleges are being paid, or overpaid?” Let’s actually see where these dollars are going. Let’s look at the fact that these universities, many of them, don’t have any kind of accountability or transparency [in terms of student outcomes].

I’m glad we can have a civil argument about some of these areas where we disagree. Few politicians want to do that anymore.

It’s unfortunate, isn’t it? This is a problem that we’re seeing in our political culture today….Our leaders are increasingly unwilling to sit down with those who may be “on the other team.” Even those who are asking to lead our country. I think this is how we move forward together.

This interview has been condensed and edited for style and clarity. For a video version, visit reason.com.

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Brickbat: Just Be Yourself

Monroe County, Florida, Sheriff Rick Ramsay has relieved Capt. Penny Phelps as head of the department’s major crimes and narcotics unit after she was recorded telling a deputy to pull over a black murder suspect and act like a “white supremacist cop.” Phelps told the deputy she did not want the suspect to know that law enforcement knew who he was. “We want it to look like you’re the grumpy old man. You have nothing better to do than, you’re the white supremacist, you’re messing with the black guy who’s riding his bike,” she said.

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Where Is the Fifth Circuit’s Opinion in the Texas ACA Case?

I am asked with increasing frequency about the status of Texas v. United States, the latest effort to have the Affordable Care Act struck down in federal court. In this case, a coalition of states filed suit alleging that the individual mandate is unconstitutional because it may no longer be construed as an exercise of the federal taxing power, and therefore the entire ACA must be invalidated. A district court bought this argument, and on July 9, the U.S. Court of Appeals for the Fifth Circuit heard the appeal. (For more background, see my round-up of posts on the case at the end of this post.)

Many commentators predicted the opinion would be released this fall. After all, the Fifth Circuit’s website notes the court tries to issue opinions within 60 days of oral argument. Texas v. US was argued over five months ago, so where is the decision? There are several possibilities.

First, Texas v. United States is a complex case, and certainly more complex than the average case heard on the Fifth Circuit. Insofar as the average opinion is issued more rapidly, that is mostly because the average opinion involves less complicated issues. Judges are typically working on and considering multiple opinions in multiple cases at any given time, and it’s not always easy to resolve every case as quickly as advocates would like, particularly when cases are complex.

Second, it’s likely the three judges on the panel do not fully agree on the disposition. Not only does the case involve multiple issues that could divide the judges, including standing and severability, but the judicial philosophies of the judges vary. It takes time for the judges to work through the issues and, insofar as they disagree, time may be spent as draft opinions go back and forth amongst the judges before they are all willing to sign off.

These are fairly standard reasons why some appellate decisions take a long time to issue. There are other factors that could influence the decision in this particular case, however.

Some commentators think courts time their opinions to maximize (or minimize) the amount of attention they receive. So, for instance, it may seem a disproportionate share of controversial decisions get released on Friday afternoons. This may well happen, but I am not aware of any instance in which judges manipulated the timing of an opinion in this way, so I would not endorse such speculation.

In this particular case, some speculate that the judges may have sought to delay the issuance of an opinion until after the end of open enrollment. If that’s the case here, we would expect an opinion any day, as open enrollment ended December 15. Yet if the opinion does issue this week, I would be hesitant to ascribe the timing to anything other than coincidence.

It is also possible that the judges realized they had to recalibrate their thinking on certain issues due to legal developments since oral argument. One possibility here is the Fifth Circuit’s en banc decision in Collins v Mnuchin, in which the court held that the structure of the Federal Housing Finance Agency (FHFA) is unconstitutional due to limitations on the President’s ability to remove the agency’s director

The reason Collins is relevant for the Texas ACA case is that one issue that split the en banc court was severability. Having concluded that the FHFA’s director was unconstitutionally insulated from removal, the question became what the court should do about it, and this raised the question of severability.

In Collins, a majority of the en banc court concluded that courts should adopt a particularly restrained approach to severability and invalidate as little of a statute as possible. In Collins this meant that the court need not do any more than declare unconstitutional the provisions limiting removal of the FHFA’s director. This was enough to eliminate the constitutional violation, even if it was significantly less than the plaintiffs wanted.

Two of the judges on the panel in Texas v. ACA dissented in Collins, but they are bound by the en banc court’s judgment. Insofar as the cases are distinguishible—and they certainly are—it actually cuts further against the plaintiff states’ claims in Texas v. US.

Several judges in Collins argued that the court should invalidate as much of a statute as is necessary to redress the plaintiffs’ injury. In Collins this counseled for invalidating more than the for-cause removal provision, as it was not merely the removal provision that harmed the plaintiffs in that case. In Texas v. US, however, this approach requires invalidating nothing more than the individual mandate itself, for insofar as the individual mandate is a source of injury to the plaintiff states, invalidating the mandate completely redresses that injury, and there is nothing more for the court to do. That other parts of the statute may have other effect on the plaintiff states is irrelevant, as those other injuries are not the basis for the plaintiff states’ standing, and they are not alleged to be unconstitutional in themselves.

I have no inside knowledge about the handling of either case, so this is speculation on my part, but I would not be surprised if the Collins decision forced one or more of the judges here to recalibrate their opinion(s) in the case. In any event, it will be interested to see how the Fifth Circuit panel handles Collins when it finally issues the opinion in this case.

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James Comey Asked the American People To Trust the FBI. Why Should They?

In an interview with Fox News Sunday‘s Chris Wallace, former FBI Director James Comey admitted that his agency made “significant mistakes” during the course of its investigation into alleged collusion between Russia and the 2016 Trump campaign. But he defiantly insisted that his critics—including and especially Fox viewers—were wrong to have ever doubted the FBI’s motives.

“The American people, especially your viewers, need to realize they were given false information about the FBI,” said Comey, referencing an idea promoted by President Donald Trump and his most ardent supporters that the investigation was part of a politically motivated effort to take down the administration.

In response, Wallace asked pointedly, “Would you agree the FISA [Foreign Intelligence Surveillance Act] court was also given false information by the FBI?”

Comey conceded that this was the case.

It was a methodical evisceration of the fired FBI chief, who attempted to downplay his own mistakes and contextualize previous statements he made that no longer hold up in the wake of Inspector General Michael Horowitz’s report. Horowitz chronicled the FBI’s appalling failures during its handling of the Russia probe, including 17 incidents of “serious performance failures.” Wallace raised three key issues with Comey, who tried and failed to explain them away.

First, Wallace pointed out that Comey had previously described the Steele dossier—a key piece of evidence used by the FBI to secure a FISA warrant for Trump campaign advisor Carter Page—as “part of a broader mosaic of facts” against Page. According to the Horowitz report, this was spin on the part of Comey: In fact, the Steele dossier was the fundamental component of the warrant. Comey haggled with Wallace about the definition of “broad mosaic of facts” but was essentially unable to rebut the charge that he had underplayed the dossier’s importance after its accuracy came under scrutiny.

Second, Comey expressed ignorance regarding the specific actions of his underlings, in an attempt to claim that he may not have known exactly at what point FBI agents came to doubt the dossier’s conclusions. This should be a black mark for him even if it is accurate.

Third, he had no explanation for why or how new information about Page—including that he had reported his contacts with Russians to the CIA—was misrepresented in the warrant.

Comey said these mistakes were unacceptable, and that his previous assertions that the FBI did everything correctly were “overconfident.”

“I was wrong,” said Comey. However, he maintained that ultimately the report had vindicated the FBI because the more outlandish conspiracy theories of a deep-state-orchestrated coup were not deemed credible.

Hanlon’s razor—Never attribute to malice that which can be adequately explained by stupidity—certainly applies here, and that’s a lesson Team MAGA should take to heart. But that’s not a vindication of the FBI. If Comey’s broader plea to the American public to continue placing trust in the nation’s top law enforcement agency falls on deaf ears, he will have no one to blame but himself.

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