Month: September 2021

“You don’t get to lose a war and expect the result to look like you won it,” says historian Stephen Wertheim of the violent and chaotic withdrawal of United States forces and personnel from Afghanistan. “Yet some in Washington are denying reality, calling for still more war and blaming Biden for their failure.”

Wertheim is the author of Tomorrow, the World: The Birth of U.S. Global Supremacy, a study of how American strategists during World War II conflated military supremacy with internationalism, and a senior fellow in the American Statecraft Program at the Carnegie Endowment for International Peace.

He talks with Nick Gillespie about how the wars in Afghanistan and Iraq were doomed to failure from their earliest days, what policy makers should be focused on as we approach the 20th anniversary of the 9/11 attacks, and why a fundamental rethink of U.S. military and foreign policy is not only urgent but, after a radical shift in public opinion, eminently possible.

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Jenna Holm is facing prison time for the death of Bonneville County Sheriff’s Deputy Wyatt Maser in May of 2020, despite the fact that Maser was killed not by Holm, but by one his fellow police officers.

Maser and his colleague, Deputy Benjamin Bottcher, were called to help Holm, who had crashed her car on a rural road on May 18 of last year. When the deputies arrived, Holm was in the street wielding a machete, screaming. Bottcher, who had interacted with Holm days prior at the Idaho Falls Behavioral Crisis Center—worked to calm her down during what was possibly a mental health crisis. After Bottcher repeatedly tased Holm, eventually subduing her, Maser was walking into the road toward Holm when a third police officer, Sergeant Randy Flagel, arrived on the scene and struck Maser with his vehicle, killing him.

Idaho State Police are now seeking to prosecute Holm for Maser’s death.

Holm allegedly approached Maser with the weapon prior to being subdued, though she did not harm Maser or Bottcher. At the time Maser died, Holm was on the ground after having been tased for approximately a full minute.

The state brought charges using a lever similar to the felony murder rule, a controversial legal doctrine that allows prosecutors to pursue people on murder charges who didn’t actually commit homicide if the death occurred during the commission of another felony. An example: An Ohio teen was charged with the murder of her boyfriend after a police officer shot him in December of 2018 during a botched robbery that she allegedly helped orchestrate.

Eugene Volokh, a professor of law at UCLA law school, says that Idaho prosecutors may have a problem winning this case.

“I’m inclined to say she shouldn’t be liable because this guy, the police officer, was killed by another police officer,” he says. “I think Idaho law agrees with me on that, because Idaho…adopts the agency theory.”

The agency theory—as opposed to the proximate cause theory—holds that you may only be held accountable under the felony murder rule if the murder was carried out by other agents of the crime. The state adopted that line of thought in State of Idaho v. Pina, in which Juan Carlos Fuentes Pina’s felony murder conviction was overturned because the actual shooter in question was not an accomplice in Pina’s alleged criminal activity. In other words, had Maser been struck and killed by one of Holm’s co-conspirators, Holm could be charged. But Holm had no co-conspirators.

“She’s not being prosecuted for a death committed as a result of a felony, which would be murder,” adds Volokh. “[It] occurred as a result of an unlawful act, which would be manslaughter. In theory, you could imagine that being treated differently….This having been said, the statute for involuntary manslaughter is very, very similar to the statute for felony murder.”

Whether or not a jury will be swayed by the analysis remains to be seen. The trial was scheduled to begin on Monday but was postponed last week until February 14 of next year after Holm’s attorneys, Rocky Wixom and Jordan Crane, obtained evidence they say could work in her favor.

Neither Wixom nor Crane responded to requests for comment. But the two had somewhat of a victory in June when a judge released the findings of an internal police investigation into Maser’s death, which the state sought to conceal. Investigators concluded that Bottcher did not activate his emergency lights, failed to deploy his flashlight, and gave wrong directions, while Maser left off his rear red and blue lights and “stepped up into the roadway in front of Sgt. Flegel’s vehicle.” The report recommends roadside safety training.

Holm faces up to 30 years in prison. But as Volokh notes, one thing is not in dispute: “She didn’t kill him.”

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Today’s decision in Blankenship v. Trump, by Judge John Copenhaver (S.D. W. Va.), deals with Donald Trump, Jr.’s Tweet that called Don Blankenship—who had been running in the Republican primary for a West Virginia Senate seat—a “felon.” (Blankenship alleges that the Trump team wanted their own preferred candidate to win the primary.) Blankenship had been convicted of a misdemeanor, but not a felony:

Following an explosion in a West Virginia mine on April 5, 2010, that resulted in the death of twenty-nine (29) miners, the United States government initiated an investigation into the cause of the explosion. While the plaintiff was not charged with the death of the miners or with causing the explosion, the government later charged the plaintiff with three felonies, including conspiracy to defraud the federal Mine Safety and Health Administration, and one misdemeanor for conspiracy to violate federal mine safety laws. On December 3, 2015, a federal jury found the plaintiff not guilty of the felony charges but convicted him of the misdemeanor offense. The plaintiff was sentenced to one year in prison, which the plaintiff served and from which he was released in the spring of 2017.

The court denied Donald Trump, Jr.’s motion to dismiss, concluding that erroneously calling a misdemeanant a felon was potentially defamatory:

On the question of falsity[, “][West Virginia libel law] overlooks minor inaccuracies and concentrates upon substantial truth. Minor inaccuracies do not amount to falsity so long as the substance, the gist, the sting, of the libelous charge be justified. A statement is not considered false unless it would have a different effect on the mind of the reader from that which the pleaded truth would have produced.[“] “[I]f something is ‘substantially’ true in overall effect, minor inaccuracies or falsities will not create falsity.” …

Although the exact difference between [a misdemeanor and a felony] may not be as clear to general society, the court agrees with the plaintiff that “society at large” might “view[] a ‘felon’ far differently than a person who has committed an offense resulting in a misdemeanor conviction.” Thus, at the motion-to-dismiss stage, the court concludes that the complaint plausibly alleges that Trump Jr.’s tweet labeling the plaintiff a felon was not a substantial truth or a minor inaccuracy….

And the court concluded that Blankenship had sufficiently plausibly alleged that Trump, Jr. was speaking with “actual malice,” which here means knowing that the statement was false or reckless about the possibility of falsehood:

“[P]artisanship, animus toward the subject of a libel, or other ‘malicious’ motives” are not conclusive evidence of “actual malice” on their own, but a jury may consider them in determining “whether a subjective realization that the statement was false or a subjective realization that the statement was being published recklessly, existed at the time the statement was published.” To show reckless disregard for truth or falsity, and therefore actual malice, “a plaintiff must prove that ‘the defendant in fact entertained serious doubts as to the truth of his publication.’ “To plead actual malice, therefore, [a plaintiff] must plausibly allege that [the defendant] [published] the [material] with a ‘high degree of awareness'” that it was “likely” false. Recklessness may be found where there are obvious reasons to doubt the veracity or accuracy of information.

[P]laintiff alleges facts in support of the inference that Trump, Jr. issued the tweet with knowledge of its falsity: (1) Trump, Jr. was involved in high-level discussions about the primary campaign in West Virginia, (2) he made the statements shortly after one such meeting, (3) the comments were made as part of a string of false comments by sophisticated party operatives, (4) the true facts were widely available on the internet and had been widely reported, and (5) he never retracted or corrected the false tweets, despite being informed of their falsity….

The plaintiff’s allegations are sufficient at this stage to create a “plausible inference” that Trump, Jr. published his tweet with knowledge of its falsity. In his quote tweet [which forms of the basis of this claim], Trump, Jr. concedes knowledge of the plaintiff’s criminal history and association with the mine explosion. The CNN news article linked in the quote tweet reports that the plaintiff “had just recently finished serving a yearlong sentence following a misdemeanor conviction for his involvement in the deadliest US mine explosion in four decades.” Based on this article that Trump, Jr. himself cites within his own quote tweet, there is a plausible inference that he had knowledge of the plaintiff’s conviction history in association with the mine explosion, and in particular that the conviction was a misdemeanor, not a felony.

Alternatively, the CNN article supports a plausible allegation of reckless disregard for the truth. Trump, Jr. alleges that he had a “reasonable assumption” that the plaintiff was a felon based on numerous news sources that mention the mine explosion and identify the plaintiff as a felon. Trump, Jr. would not have reason to doubt the accuracy of these sources on their own. However, he would have reason to entertain serious doubt about the falsity of his statement based on the CNN article, which unequivocally reports that the plaintiff’s conviction in connection with the mine explosion was for a misdemeanor….

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Today’s decision in Blankenship v. Trump, by Judge John Copenhaver (S.D. W. Va.), deals with Donald Trump, Jr.’s Tweet that called Don Blankenship—who had been running in the Republican primary for a West Virginia Senate seat—a “felon.” (Blankenship alleges that the Trump team wanted their own preferred candidate to win the primary.) Blankenship had been convicted of a misdemeanor, but not a felony:

Following an explosion in a West Virginia mine on April 5, 2010, that resulted in the death of twenty-nine (29) miners, the United States government initiated an investigation into the cause of the explosion. While the plaintiff was not charged with the death of the miners or with causing the explosion, the government later charged the plaintiff with three felonies, including conspiracy to defraud the federal Mine Safety and Health Administration, and one misdemeanor for conspiracy to violate federal mine safety laws. On December 3, 2015, a federal jury found the plaintiff not guilty of the felony charges but convicted him of the misdemeanor offense. The plaintiff was sentenced to one year in prison, which the plaintiff served and from which he was released in the spring of 2017.

The court denied Donald Trump, Jr.’s motion to dismiss, concluding that erroneously calling a misdemeanant a felon was potentially defamatory:

On the question of falsity[, “][West Virginia libel law] overlooks minor inaccuracies and concentrates upon substantial truth. Minor inaccuracies do not amount to falsity so long as the substance, the gist, the sting, of the libelous charge be justified. A statement is not considered false unless it would have a different effect on the mind of the reader from that which the pleaded truth would have produced.[“] “[I]f something is ‘substantially’ true in overall effect, minor inaccuracies or falsities will not create falsity.” …

Although the exact difference between [a misdemeanor and a felony] may not be as clear to general society, the court agrees with the plaintiff that “society at large” might “view[] a ‘felon’ far differently than a person who has committed an offense resulting in a misdemeanor conviction.” Thus, at the motion-to-dismiss stage, the court concludes that the complaint plausibly alleges that Trump Jr.’s tweet labeling the plaintiff a felon was not a substantial truth or a minor inaccuracy….

And the court concluded that Blankenship had sufficiently plausibly alleged that Trump, Jr. was speaking with “actual malice,” which here means knowing that the statement was false or reckless about the possibility of falsehood:

“[P]artisanship, animus toward the subject of a libel, or other ‘malicious’ motives” are not conclusive evidence of “actual malice” on their own, but a jury may consider them in determining “whether a subjective realization that the statement was false or a subjective realization that the statement was being published recklessly, existed at the time the statement was published.” To show reckless disregard for truth or falsity, and therefore actual malice, “a plaintiff must prove that ‘the defendant in fact entertained serious doubts as to the truth of his publication.’ “To plead actual malice, therefore, [a plaintiff] must plausibly allege that [the defendant] [published] the [material] with a ‘high degree of awareness'” that it was “likely” false. Recklessness may be found where there are obvious reasons to doubt the veracity or accuracy of information.

[P]laintiff alleges facts in support of the inference that Trump, Jr. issued the tweet with knowledge of its falsity: (1) Trump, Jr. was involved in high-level discussions about the primary campaign in West Virginia, (2) he made the statements shortly after one such meeting, (3) the comments were made as part of a string of false comments by sophisticated party operatives, (4) the true facts were widely available on the internet and had been widely reported, and (5) he never retracted or corrected the false tweets, despite being informed of their falsity….

The plaintiff’s allegations are sufficient at this stage to create a “plausible inference” that Trump, Jr. published his tweet with knowledge of its falsity. In his quote tweet [which forms of the basis of this claim], Trump, Jr. concedes knowledge of the plaintiff’s criminal history and association with the mine explosion. The CNN news article linked in the quote tweet reports that the plaintiff “had just recently finished serving a yearlong sentence following a misdemeanor conviction for his involvement in the deadliest US mine explosion in four decades.” Based on this article that Trump, Jr. himself cites within his own quote tweet, there is a plausible inference that he had knowledge of the plaintiff’s conviction history in association with the mine explosion, and in particular that the conviction was a misdemeanor, not a felony.

Alternatively, the CNN article supports a plausible allegation of reckless disregard for the truth. Trump, Jr. alleges that he had a “reasonable assumption” that the plaintiff was a felon based on numerous news sources that mention the mine explosion and identify the plaintiff as a felon. Trump, Jr. would not have reason to doubt the accuracy of these sources on their own. However, he would have reason to entertain serious doubt about the falsity of his statement based on the CNN article, which unequivocally reports that the plaintiff’s conviction in connection with the mine explosion was for a misdemeanor….

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Because the Supreme Court has not intervened yet, a Texas law that purports to ban the vast majority of abortions in that state took effect today. S.B. 8, which Gov. Greg Abbott signed into law on May 19, requires physicians to check for cardiac activity with a sonogram prior to an abortion, and it says “a physician may not knowingly perform or induce an abortion” if he detects “a fetal heartbeat.” In an effort to frustrate constitutional challenges, the law bars state or local officials from enforcing the ban, instead authorizing “any person” to sue physicians who perform post-heartbeat abortions, along with anyone who “knowingly engages in conduct that aids or abets” such procedures.

Last week, U.S. District Judge Robert Pitman nevertheless declined to dismiss a July 13 lawsuit challenging S.B. 8. In that case, Whole Woman’s Health v. Jackson, abortion providers and abortion rights advocates sued a Smith County judge, the clerk of that court, state medical regulators, Texas Attorney General Ken Paxton, and Mark Lee Dickson, a pro-life activist who “has expressed his intent to bring civil enforcement actions as a private citizen under S.B. 8.” The plaintiffs argued that the defendants would all play a role in enforcing the statute, either by bringing the lawsuits it authorizes, adjudicating them, taking administrative action against medical professionals accused of violating S.B. 8, or pursuing civil penalties under the Texas Medical Practice Act triggered by the new abortion restrictions.

Pitman agreed with that logic, and he scheduled a hearing for August 30 to consider a preliminary injunction. On Friday, after the defendants appealed Pitman’s decision, he vacated that hearing with respect to the state defendants, who claim sovereign immunity, but not with respect to Dickson, a private citizen. That same day, the U.S. Court of Appeals for the 5th Circuit imposed a “temporary administrative stay” on the district court proceedings, and on Sunday it rejected the plaintiffs’ motion to lift that stay, along with their motion for an emergency injunction.

The next day, the plaintiffs asked the Supreme Court to intervene by issuing an emergency injunction or by lifting the 5th Circuit’s stay. Because the Court has not responded yet, there was nothing to stop S.B. 8 from taking effect today.

The law’s reach is so broad that it clearly violates the Court’s abortion precedents. According to the Court’s 1992 decision in Planned Parenthood v. Casey, the government may not impose an “undue burden” on the right to abortion, which happens when its regulations have “the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.” A fetal heartbeat can be detected beginning around six weeks into a pregnancy, long before “viability,” before most abortions are performed, and before many women even realize they are pregnant. The plaintiffs estimated that S.B. 8 would affect “at least 85% of Texas abortion patients.”

The law makes an exception for “a medical emergency” but not for pregnancies resulting from rape or incest. Nor does it allow post-heartbeat abortions when the fetus has a “defect incompatible with life after birth.” In those respects, S.B. 8 is even stricter than some state “trigger” laws—abortion bans that are designed to take effect should the Supreme Court decide that the Constitution does not protect a right to terminate a pregnancy after all. Utah’s trigger law, for example, includes exceptions for cases involving rape, incest, or a fetus with a “uniformly diagnosable” and “uniformly lethal” defect or a “severe brain abnormality” resulting in a “mentally vegetative state.”

S.B. 8 also creates a very disadvantageous situation for defendants in the lawsuits it authorizes. “While empowering private enforcers,” Pitman noted in his decision allowing the case to proceed, “S.B. 8 limits the defenses available to defendants and subjects them to a fee-shifting regime skewed in favor of claimants.”

While the law says women who seek or obtain abortions cannot be sued, potential defendants include a wide range of ancillary actors in addition to people directly involved in the procedure. The law makes it easy to sue people and burdensome to defend against such claims, threatening defendants with “statutory damages” of at least $10,000 per abortion as well as legal fees they probably will never recover even if they win.

S.B. 8 says someone can be sued not only if he performs or assists an abortion but also if he “intends” to do so. It does not define “aiding or abetting” a prohibited abortion, except to say that it includes “paying for or reimbursing the costs of an abortion through insurance or otherwise.” But on its face, that provision would cover anyone who assisted a woman seeking an abortion, whether by helping to pay for the procedure, taking her to the clinic, or watching her kids while she was there. One exception: The law does not apply to “speech or conduct protected by the First Amendment,” so merely advising a woman to seek an abortion presumably would not be actionable.

The law says someone can be sued under the “aiding and abetting” provision “regardless of whether the person knew or should have known” that the abortion was illegal. At trial, an alleged accomplice can raise an “affirmative defense” that he “reasonably believed, after conducting a reasonable investigation,” that the abortion was legal, which he has to prove by a preponderance of the evidence.

What does not count as an affirmative defense? Defendants cannot argue that they did not know about the law or did not understand it. They cannot cite their belief that the law is unconstitutional. They cannot rely on any court ruling to that effect if it was subsequently overturned, even if that did not happen until after the conduct for which they were sued. They cannot rely on state or federal court decisions that are “not binding” in the jurisdiction where the lawsuit is filed. They cannot “assert the rights of women seeking an abortion” unless that is consistent with “the tests for third-party standing” established by the U.S. Supreme Court or the Court “holds that the courts of this state must confer standing.”

Even defendants who ultimately prevail will suffer a financial penalty, since they will have to cover the cost of their defense. “Notwithstanding any other law,” S.B. 8 says, “a court may not award costs or attorney’s fees…to a defendant in an action brought under this section.” By contrast, plaintiffs who win can expect to receive not just $10,000 in “statutory damages” but also compensation for their “costs and attorney’s fees,” which S.B. 8 says “the court shall award.”

As Pitman notes, this “novel fee-shifting regime” extends beyond lawsuits brought under S.B. 8. It also covers “any challenges to the law, including in the instant case,” as well as challenges to any Texas law that “regulates or restricts abortion.” In those cases, the rule likewise disfavors people who object to the law. Under S.B. 8, Pitman says, plaintiffs who challenge abortion laws “may be liable for attorney’s fees unless they prevail on all of their initial claims, regardless of the ultimate outcome of the litigation.”

In their application to the Supreme Court, the organizations challenging S.B. 8 warned that it would “immediately and catastrophically reduce abortion access in Texas,” even if enforcement is officially limited to private civil actions. “At bottom,” they say, “the question in this case is whether—by outsourcing to private individuals the authority to enforce an unconstitutional prohibition—Texas can adopt a law that allows it to ‘do precisely that which the [Constitution] forbids.'”

So far S.B. 8 is working as intended: Facing potentially ruinous liability, abortion clinics in Texas have dramatically curtailed their services. Whole Woman’s Health, the lead plaintiff challenging the law, says it is now offering abortions at its clinics in McAllen, McKinney, Austin, and Fort Worth only “if no embryonic or fetal cardiac activity is detected in the sonogram.” The American Civil Liberties Union lamented that “access to almost all abortion has just been cut off for millions of people,” saying “the impact will be immediate and devastating.”

All of this is welcome news, of course, for Americans who view abortion as tantamount to murder. But that is not the view that the Supreme Court has taken for half a century. In Roe v. Wade, it held that the Constitution protects a right to abortion, and it has repeatedly affirmed that basic conclusion since 1973. A case that the Court will hear next term, involving a Mississippi law that bans abortions after 15 weeks (vs. about six weeks under S.B. 8), will give the justices an opportunity to overturn or (more likely) scale back Roe and its progeny. But in the meantime, S.B. 8 is plainly inconsistent with what the Court has said about constitutional limits on abortion regulations.

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