Month: April 2021

The Illinois Law Review has published an expansive online symposium on President Biden’s first 100 days in office. There are more than thirty submissions from a wide range of law professors. Seth Barrett Tillman and I submitted an article titled “What Happens if the Biden Administration Prosecutes and Convicts Donald Trump of Violating 18 U.S.C. § 2383?” This article is based on a blog post we wrote for the Volokh Conspiracy in February. Over the past two months, we have substantially expanded our research on Section 2383, and its relation to the 14th Amendment.

Here is the abstract:

President Trump’s term in office has drawn to a close, and the Biden administration has begun. Attorney General Merrick Garland will soon face a difficult decision: Should he pursue a criminal prosecution of Trump for his conduct leading up to, and during the events of January 6, 2020? One possible basis for prosecution would be under the Insurrection Act, 18 U.S.C. § 2383. This statute provides:

Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.

In this Article, we take no position whether Trump committed the substantive offenses of inciting or engaging in an insurrection. Rather, we will analyze the potential legal consequences of convicting Trump under this statute. Specifically, what would it mean for Trump to be “incapable of holding any office under the United States.” Would this punishment disqualify Trump for serving a second term as President, should he be elected?

Attorney General Garland’s decision will be complicated because there are no settled authorities to answer these legal questions. He will also face tough political choices. Any prosecution could be seen as an effort to disqualify the presumptive Republican nominee for President in 2024. In effect, a Biden Administration prosecution could knock out its most likely political opponent. A substantial segment of the public may view the Attorney General as disenfranchising tens of millions of voters. This decision is fraught with difficulty.

However, we think Garland’s decision is simpler in one regard: Trump’s conviction under § 2383 would not prevent his serving in the White House again. In our view, if Trump were convicted of violating § 2383, he would be disqualified from holding appointed federal positions. However, that conviction would not disqualify him from holding the presidency or any other elected federal position. We think our reading is correct as a matter of original public meaning with respect to the Constitution of 1788. And this conclusion is unchanged by Sections 3 and 5 of the Fourteenth Amendment. Our position is supported by modern Supreme Court and other federal court precedent.

In our view, even if Trump were convicted of violating § 2383, he would not be disqualified from serving a second term as President.

This Article proceeds in five parts. Part I explains that under the Constitution of 1788, Congress cannot add qualifications for elected federal officials. To illustrate our position, Part II analyzes an anti-bribery statute that the first Congress enacted in 1790. This statute imposes additional qualifications on certain federal positions. But, we argue, it should not be read to impose additional qualifications on elected federal positions. In Part III, we consider whether our general position is altered by the ratification of the Fourteenth Amendment. In other words, do Sections 3 and 5 of the Fourteenth Amendment give Congress the power to impose additional qualifications on holding elected federal positions? Part IV traces the history of the Insurrection Act, 18 U.S.C. § 2383. The Insurrection Act has remained virtually unchanged since President Lincoln signed it into law in 1862. This law should not be read to impose additional qualifications on elected federal officials. Finally, in Part V, we consider an amended, hypothetical version of § 2383 in which Congress expressly invoked its powers under Sections 3 and 5 of the Fourteenth Amendment. Even under this hypothetical statute, we still do not think Congress could disqualify former President Trump from serving a second term in office.

And from our conclusion:

We think it unlikely that the Biden administration will bring a criminal prosecution against former President Trump. We also think a conviction unlikely should he be prosecuted. But even if Trump were convicted of violating 18 U.S.C. § 2383, we do not think he would be disqualified from running for and serving a second term as President, should he win re-election.

…

Going forward, the Biden Department of Justice faces a difficult choice. There are legal and political upsides and downsides to prosecuting Trump under § 2383. If Trump were convicted, it may lead some people to conclude that he is disqualified from running for and serving a second term as President should he win re-election. We think this issue is far from clear, but recognize that election boards, courts, and even Congress could reach that conclusion in good faith.⁸⁸ But what if Trump were acquitted of a § 2383 charge? Trump could credibly argue on that basis that he did not engage in insurrection, and thus did not run afoul of Section 3. (In much the same way, Trump could cite his two acquittals from impeachment trials as proof of his exoneration.) The decision to bring this prosecution will be made at the highest levels of the Department of Justice, likely by Attorney General Garland. And we suspect these legal and political risks would factor into the future Attorney General’s decision. Yet, even if Trump is prosecuted and convicted, the scope of disqualification would remain for another day.

We welcome any comments.

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A Tennessee man is suing state and local law enforcement officials for violating his First Amendment rights after he was arrested and charged with harassment for posting a meme mocking a dead police officer.

Joshua Garton filed a federal civil rights lawsuit on Tuesday in the U.S. District Court for the Middle District of Tennessee alleging malicious prosecution, false arrest, and First Amendment retaliation for his January arrest by the Dickson Police Department.

The Dickson Police Department, following an investigation by the Tennessee Bureau of Investigation (TBI), arrested and charged Joshua Garton on January 22 with harassment after Garton posted a picture to Facebook that appeared to show two men urinating on the tombstone of Sgt. Daniel Baker, who was shot and killed on duty in 2018. Garton was held on a $76,000 bond.

Garton’s attorney, Nashville civil rights lawyer Daniel Horwitz, said in a statement that the case against Garton was a “despicable and unconstitutional malicious prosecution.”

“There are actual consequences for flagrantly violating the First Amendment,” Horwitz said. “Unfortunately, taxpayers will have to pay a significant penalty because District Attorney Ray Crouch, the Tennessee Bureau of Investigation, the City of Dickson, and their agents and employees are constitutionally illiterate.”

The agency launched the investigation at the request of 23rd District Attorney General Ray Crouch. “Agents subsequently visited Baker’s gravesite this morning and determined the photograph was digitally manufactured,” a TBI press release on Garton’s arrest said.

The picture Garton posted was in fact a doctored photo of the cover of “Pissing on Your Grave,” a single by The Rites, which originally depicted two people urinating on the tombstone of punk legend GG Allin.

The First Amendment firmly protects the right to post distasteful, offensive images and words. For example, in 2019 an Iowa man won a lawsuit after he was charged with third-degree harassment for saying online that a sheriff’s deputy was a “stupid sum bitch” and “butthurt.”

Nevertheless, Garton was interviewed by Dickson police officers, and according to an affidavit, “Garton was told that the image he posted did cause emotional distress to the family of Sgt. Baker as well as the law enforcement officers from Dickson County.”

“He has a right to post. That doesn’t mean there are no consequences,” Dickson Police Captain Donald Arnold wrote in one of several text messages included as exhibits in Garton’s lawsuit.

The arrest drew local and national attention, and condemnation from First Amendment experts, who said the post was clearly protected speech. According to other records released in Garton’s lawsuit, it also led to a flood of angry callers at all of the agencies involved.

“The trolls will do what trolls do,” TBI Director David Rausch wrote in another text. “It appears they and the lawyers forget that there are surviving family members who have rights as well.”

A judge dismissed the case against Garton, finding no evidence of harassment.

“That is not good,” Rausch texted after the judge’s ruling. 

Garton’s lawsuit seeks $1 million in damages and names Crouch, officials from the TBI, the city of Dickson, and several Dickson police officers as defendants.

The TBI did not immediately respond to a request for comment.

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The most COVID-cautious local and state governments are slowly easing their pandemic-era restrictions. These gradual reopenings, while welcome, are producing increasingly absurd and complicated rules for newly liberated businesses.

Earlier this week, Washington, D.C., Mayor Muriel Bowser issued an order eliminating some restrictions on restaurants, permitting live entertainment, and expanding capacity for retailers and other businesses. Come May 1, District dining rooms be allowed to seat 10 people per table (up from the current six), while restaurants can begin to host live entertainment without first having to obtain a special waiver.

Actual concert halls will also be allowed to reopen at 25 percent capacity or 500 people, whichever is less. Retailers deemed “nonessential” will see their own permitted capacity rise from 25 to 50 percent.

These changes all move D.C., where 33.6 percent of people are at least partially vaccinated, ever so slightly toward a pre-pandemic normal. They also come with a number of carveouts and caveats that will limit their impact.

While individual party sizes at restaurants are increasing, for instance, restaurants’ indoor capacity will stay at 25 percent. A midnight curfew for these businesses will remain in place as well.

People seated outdoors will be freed from the requirement to order food with any alcohol. Should you opt to sit inside, however, you will need to buy a snack while you’re sipping on your beverage.

The restrictions on newly legal live entertainment come with even more micromanagement.

Bowser’s order allows live music for outdoor diners, and for other forms of live entertainment, like comedy or trivia nights, to be performed inside for seated patrons. Indoor live entertainment can’t be so loud that patrons would need to raise their voices above a conversational level, per the mayor’s order.

The city’s Alcoholic Beverage Regulation Administration (ABRA) has concocted more rules still to bring the mayor’s orders into effect. Under ABRA regulations, performers must stay six feet away from other performers within a designated “performance area.”

That performance area, meanwhile, can hold 10 people if it’s inside, or five if it’s outdoors. That might help cut down on outdoor noise volumes but would seem to cut against the public health goal of pushing more people and activities into well-ventilated outdoor spaces.

At a minimum, prog rock bands playing outside will be put in the impossible position of choosing between their rhythm guitarist and keyboardist.

All live entertainers must remain masked, per ABRA rules, unless doing so inhibits their ability to perform. Unmasked performers, such as vocalists, trombonists, and harmonica players, however, will have to be 18 feet from seated patrons. Their face-covered bandmates can get as close as 12 feet.

“No dance floors can be constructed or used for dancing,” reads ABRA’s guidance, which also says that games like pingpong, pinball, and pool will remain prohibited unless they can be played safely by seated patrons.

The problem with D.C.’s approach to reopening is twofold: They’re unworkable for businesses that’ll have to comply with them, and they’re an unsupported, seemingly nonsensical, means of stopping the spread of COVID-19.

“The average commercial townhouse in Washington, D.C., is 20 feet wide,” Bill Duggan, owner of Madam’s Organ Blues Bar, told me last week, saying that rules governing the space between performers and patrons don’t take into account the size of most venues in the city. “Unless I can figure out a way to hang up the three or four people that could fit into that space on the wall, I’m shit out of luck.”

Duggan has proposed letting all venues reopen on the condition that performers, staff, and customers all have been vaccinated.

One need not necessarily support “vaccine passports” to at least recognize they’re a rational means of ensuring safer environments. One can’t say the same thing about District rules that allow you to drink inside only so long as you’re eating, or to visit a bar with 10 vaccinated friends, but not 12 of them.

An over-cautious, over-regulated reopening also contributes to the real problem of vaccine hesitancy.

If getting your shot still doesn’t allow you to get a shot at the bar (ABRA rules forbid bar seating if someone is working behind it), many will reasonably ask themselves what the benefit of getting vaccinated is.

Rather than try to entice those people with the promise of greater normality and freedom, the District appears to be doing its best to make May 2021 as similar an experience to May 2020 as possible.

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

In Hamen v. Hamlin County, the South Dakota Supreme Court recently grappled with the question of whether an innocent property owner should get a remedy, in the form of just compensation or damages, for a SWAT raid that destroyed parts of a mobile home and cost the property owner $20k to repair. (Turns out the suspect wasn’t in the home). It’s a question that IJ is litigating right now in a separate case. And it’s also a question that has divided federal and state courts, writes IJ Attorney Anya Bidwell over at the Federalist Society’s State Court Docket Watch.

• Boston’s School Committee revises admissions procedures for the city’s three most elite public schools, switching from a primarily GPA-based procedure to a procedure that also incorporates student income and zip code. A coalition of parents and students sue, alleging that the changes discriminate against white and Asian students. After losing a request for a preliminary injunction, the coalition seeks an injunction pending appeal. First Circuit: Which we deny. The policy may result in reduced white/Asian admission, but it is based on race-neutral criteria and was not a pure proxy for race.
• Harvard Law grad with a variety of learning disabilities is denied testing accommodations for the New York bar exam, fails twice, losing a prestigious law firm job as a result. After passing the exam on a third attempt (this time with accommodations), the young lawyer sues, alleging violations of the federal Rehabilitation Act. Second Circuit: But the suit is barred by 11th Amendment immunity. An exception for state agencies that receive federal funds covers only the state’s Courts of Original Jurisdiction, which receive funds but do not supervise the bar.
• In 2012, state and federal authorities in Maryland begin investigating a chain of pharmacies for Medicaid fraud. Search warrants are executed. Pharmacies are shuttered. Owner is indicted. Owner is convicted. Government demands 12 years’ imprisonment followed by deportation. After which Owner is . . . granted a new trial? After it turns out the inventory calculations the prosecutors used were fundamentally flawed? And then it turns out the government destroyed three boxes of key documents as “part of a general cleanup of boxes of paper”? Which leads to the criminal court’s dismissing all charges? And NPR’s using the phrase “colossal screw-up” in a headline about the case? Yikes! Fourth Circuit: Yikes it may be. But the pharmacy owner can’t bring Bivens claims against any federal officials because (all together now) “these claims would extend the Bivens remedy into a new context.” Also, the state prosecutor who was seconded to the federal case is entitled to absolute immunity for allegedly fabricating evidence and spring-cleaning other evidence out of existence.
• Pretrial detainee in Bell County, Tex. jail is initially deemed a suicide risk, but the jail’s mental-health contractor takes him off suicide watch and places him in gen pop. He hangs himself two days later. His mother sues the mental-health professional, alleging deliberate indifference to her son’s serious medical needs. District court: Qualified immunity. Fifth Circuit: Wait. The mental-health professional was an employee of a private contractor, not the gov’t. So no qualified immunity. And there’s at least a fact question about whether the professional violated the detainee’s rights. To trial the case must go.
• Early in the pandemic, some sellers on Amazon reportedly began charging outrageous prices for N95 masks and other essential goods. In Kentucky, the state’s attorney general launches investigations into Kentucky-based sellers for violating the state’s price-gouging laws. The Online Merchants Guide sues the AG, invoking the extraterritoriality strand of the dormant commerce clause. Yes, you heard that right. Extraterritoriality! Buckle your seatbelts, gang. (In all seriousness, the extraterritoriality doctrine is endlessly fascinating.) District court: That seems like a winning theory; preliminary injunction. Sixth Circuit: We disagree. Any effect on out-of-state commerce is not the result of Kentucky’s law, but of Amazon’s pricing structures. Preliminary injunction vacated.
• Pursuing a suspect, St. Louis police officer says that he’s “going to kill this m***f***, don’t you know it”—which he does. The officer is acquitted of murder; protests and riots erupt. Police order people to disperse, deploy mace, and arrest scores of people. The trial court enters a preliminary injunction that has now been in effect for more than three years. Eighth Circuit: Too long. The case needs to be resolved on the merits, so the preliminary injunction must be dissolved or replaced with a permanent injunction within six months. We’re also super dubious of the merits of the claims.
• The Speedy Trial Act, which was enacted to effectuate the guarantees of the Sixth Amendment, sets time limits for steps in the criminal adjudication process and enumerates delays that may toll those limits. One delay covers when the “ends of justice” outweigh the interest in a speedy trial—and it’s been flexed a lot during the pandemic. The Ninth Circuit brings us a pair of cases interpreting this language. In the first, the court holds that a pretrial detainee who has been held since August 2019 can continue to be held for a little longer under the Speedy Trial Act, but not much longer under the Due Process Clause. And in the second, the court reverses the dismissal of an indictment of a defendant who had been granted bond and had obtained eight trial continuances before jury trials were suspended.
• Everyone agrees Art Tobias did not kill Alex Castaneda. But that consensus was reached only after Los Angeles police interrogated the then-13-year-old, ignored his request for a lawyer, and convicted him on the basis of his false confession. Ninth Circuit: Qualified immunity can’t save you here. When a suspect says, “could I have an attorney,” you have to let him see an attorney. And at least one officer employed unconstitutionally coercive interrogation techniques as well.
• In 2020, the Department of State removed 3D-printed guns from its “Munitions List”—a de-listing that would ease various regulatory restrictions on said firearms. Twenty-two states plus D.C. sued, and a district court enjoined the change. Ninth Circuit: Congress has provided that decisions to add firearms to the Munitions List “shall not be subject to judicial review,” and that necessarily covers decisions to remove firearms from the list as well. Dissent: Jurisdiction-stripping provisions should be narrowly construed, not extended beyond their plain language. (Also dissent: On the merits, the Department’s rulemaking procedure violated the APA because the agency deliberately hid the fact that its proposed rule would encompass 3D-printed guns until after the comment period had closed.)
• Two California men are charged with murder based on the testimony of a confidential informant. Although the informant testifies at a preliminary hearing, during trial he invokes the Fifth Amendment and refuses to answer any questions. The court admits the man’s testimony from the preliminary hearing; the two defendants are convicted and sentenced to life. They seek habeas review, alleging a violation of the Confrontation Clause. Ninth Circuit: The Defendants’ lawyer got to question the witness at the preliminary hearing, even if the trial judge cut off some of that questioning. It wasn’t unreasonable for the state courts to find no Confrontation Clause violation.
• Nonprofits petition the EPA in 2007 to ban foods containing an insecticide, chlorpyrifos. EPA takes 10 years looking into it, finds evidence that the chemical is indeed bad, but doesn’t issue a rule, just delays everything. The Ninth Circuit says this was “a total abdication” of its statutory duties and orders it to you-know-what or get off the pot within 60 days. Dissent: Yeah, EPA took way too long, but wasn’t arbitrary and capricious in this very technical case.
• And in en banc news, the D.C. Circuit will reconsider its decision that neither the “procedural” nor the “substantive” aspects of the Due Process Clause apply to a Yemeni citizen who has been held at Gitmo without trial for more than 16 years.

This week, a federal judge in Tampa ruled that a $30k fine for too-tall grass is not an unconstitutional excessive fine, nor does it violate due process to decline to notify a property owner that he was racking up $500-per-day fines. It all started in in 2018, when Jim Ficken was out of town handling his late mother’s estate. He’d hired a friend to mow the lawn at his house in Dunedin, Fla., but the friend passed away unexpectedly. Jim mowed the grass as soon as he realized what was going on, but city officials refused to reduce the fine and even voted to authorize foreclosure of his home when he, a retiree on a fixed income, didn’t pay. Jim will appeal the district court’s decision. Read more here.

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