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Category Archives: Courts

May Federal Prosecutors Take Direction From the President?

Bruce A. Green and Rebecca Roiphe, May Federal Prosecutors Take Direction From the President?, 87 Fordham L. Rev. 1817 (2019). [h/t Mary Whisner]

“Suppose the president sought to serve as prosecutor-in-chief, telling prosecutors when to initiate or dismiss criminal charges in individual cases and making other discretionary decisions that are normally reserved to trained professionals familiar with the facts, law, and traditions of the U.S. Department of Justice. To what extent may prosecutors follow the president’s direction? In recent presidential administrations, the president has respected prosecutorial independence; while making policy decisions, the president deferred to the Attorney General and subordinate federal prosecutors to conduct individual criminal cases. In a recent article, we argued that this is as it should be because the president has no constitutional or statutory authority to control federal criminal prosecutions. But suppose one comes to the contrary conclusion—that the president, as chief executive, has authority to decide how individual criminal prosecutions should be conducted. In this Article, we explore the consequences for prosecutors who receive the president’s orders. We argue here that federal prosecutors cannot invariably and unquestioningly follow the president’s direction because doing so would violate ethical rules and professional norms. Further, because prosecutors’ professional obligations are created by courts and endorsed by federal statute, presidential control over prosecutorial decision-making would lead to serious separation-of-powers concerns. Particularly, the integrity of the judicial system depends on the ethical rules at issue. By exploring these separation-of-powers concerns, this Article contributes to a growing debate about the power of the executive over prosecution and further supports the independence of the DOJ and federal prosecutors.”

The Lack of Diversity on the Magistrate Judge Bench

Jennifer L. Thurston, Black Robes, White Judges: The Lack of Diversity on the Magistrate Judge Bench, 82 Law and Contemporary Problems 63-102 (2019) [h/t Mary Whisner] “…From 2009 to 2016, females on the district court bench increased 13.2%, from 19.4% to 32.6%, and non-white district judges increased 10.6%, from 16.4% to 27.0%.24 During this same… Continue Reading

US District Judge in DC rules Congress may subpoena records from Trump accounting firm

BuzzFeedNews: ” A federal judge in Washington, DC, on Monday rejected President Donald Trump’s efforts to block a subpoena issued by House Democrats to his longtime accounting firm. US District Judge Amit Mehta wrote in a 41-page opinion that the House Oversight Committee had presented “facially valid legislative purposes” in subpoenaing Mazars LLP for financial… Continue Reading

Trump’s Lawyers Argue Congress Has Little Power To Investigate A Sitting President’s Personal Affairs

BuzzFeedNews – “As President Donald Trump fights investigations by the Democrat-controlled House on multiple fronts, a court hearing Tuesday highlighted his strategy to fend off inquiries into his personal business affairs. Trump so far is challenging congressional subpoenas for financial records — both personal and from the Trump Organization — in federal courts in Washington,… Continue Reading

Accused of ‘Terrorism’ for Putting Legal Materials Online

The New York Times – “Carl Malamud believes in open access to government records, and he has spent more than a decade putting them online. You might think states would welcome the help. But when Mr. Malamud’s group posted the Official Code of Georgia Annotated, the state sued for copyright infringement. Providing public access to… Continue Reading

Terrorism, Violent Extremism, and the Internet: Free Speech Considerations

EveryCRSReport.com – Terrorism, Violent Extremism, and the Internet: Free Speech Considerations, May 6, 2019 R45713: “Recent acts of terrorism and hate crimes have prompted a renewed focus on the possible links between internet content and offline violence. While some have focused on the role that social media companies play in moderating user-generated content, others have called… Continue Reading

Congress’s Contempt Power and the Enforcement of Congressional Subpoenas

CRS report – Congress’s Contempt Power and the Enforcement of Congressional Subpoenas: Law, History, Practice, and Procedure Todd Garvey Legislative Attorney, May 12, 2017. “Congress’s contempt power is the means by which Congress responds to certain acts that in its view obstruct the legislative process. Contempt may be used either to coerce compliance, to punish… Continue Reading

John Paul Stevens looks back on nearly a century of life and law but worries about the future

Washington Post – “John Paul Stevens spent more than a third of his near-century on Earth at the Supreme Court, where he often was on a different page from a majority of his fellow justices. “It happens so often that you have to get used to losing,” Stevens, 99, said during an interview this last… Continue Reading

CRS – Impeachment and Removal

CRS report – Impeachment and Removal, Jared P. Cole, Legislative Attorney; Todd Garvey, Legislative Attorney. October 29, 2015. “The impeachment process provides a mechanism for removal of the President, Vice President, and other “civil Officers of the United States” found to have engaged in “treason, bribery, or other high crimes and misdemeanors.” The Constitution places… Continue Reading

District Judge, DC – Congressional Democrats’ emoluments lawsuit targeting President Trump’s private business can proceed

Washington Post – “Democrats in Congress can move ahead with their lawsuit against President Trump alleging that his private business violates the Constitution’s ban on gifts or payments from foreign governments, a federal judge ruled Tuesday. The decision in Washington from U.S. District Judge Emmet G. Sullivan adopted a broad definition of the anti-corruption ban… Continue Reading

How to Argue with an Algorithm: Lessons from the COMPAS ProPublica Debate

Washington, Anne, How to Argue with an Algorithm: Lessons from the COMPAS ProPublica Debate (February 4, 2019). Accepted for publication. The Colorado Technology Law Journal. Volume 17 Issue 1 http://ctlj.colorado.edu. Available at SSRN: https://ssrn.com/abstract=3357874 “The United States optimizes the efficiency of its growing criminal justice system with algorithms however, legal scholars have overlooked how to… Continue Reading