Can Kamala Harris become President? After Obama winning in 2008 and Trump winning in 2016, it seems anything is possible. Although there are reasons to be concerned about a President Kamala Harris, Briahna Gray at the Intercept muses about whether her experience as a prosecutor is fatal to her chances.

The Intercept states its concern as this:

The problem isn’t that Harris was an especially bad prosecutor….The problem, more precisely, is that she was ever a prosecutor at all. To become a prosecutor is to make a choice to align oneself with a powerful and fundamentally biased system.

Nobody tell Gray that Justice Sotomayor was a New York assistant district attorney; that might make her sad. She goes on to take issue with Harris’ explanation as to why she became a prosecutor, which was: Continue reading →

It is true, I have never investigated and prosecuted the President of the United States. Until recently, a special prosecutor, or formerly, the independent counsel, was usually a once-a-term appointment and far more often focused on those around the President.

No one in Washington D.C. is interested in a former public defender turned prosecutor leading a federal investigation into political elites, especially without the blessing of an Ivy League education. But the Law School of Twitter Punditry, combined with clueless legal punditry, has shamelessly indulged the progressive fantasy that the presidency of Mike Pence will start any day. Let’s take a trip through reality and examine some of the issues.

The major threshold issue is that the President has the power to pardon federal crimes, and this power is unreviewable. No doubt that Mueller and his team have considered this fact in their approach to the investigation. Indeed, some reports suggested that the federal prosecutors would attempt to get state prosecutors on board to circumscribe the scope of the President’s power. And it does appear that he has backstopped his investigation with state investigations. But let’s also be real, no federal law enforcement agent or prosecutor gets out of bed hoping to tee up a state charge. Continue reading →

Ed. Note: Following the District of Columbia Court of Appeals decision in Jones v. United States, holding that the use of a “Stingray” cellsite simulator required a warrant under the Fourth Amendment, Andrew King and Chris Seaton were challenged to debate whether the Third-Party Doctrine or the Supreme Court’s Riley v. California decision should control. This is Andrew’s argument.

In the good old days, you traveled on a horse, read by candlelight, and communicated face-to-face. That was how your dad, your grandfather, your great-grandfather, and so on did it. Things changed, sure, but not nearly at the pace they do now, as we rely so much on digital technology. In the dark days before the Starbucks app, no one knew what the new coffee flavor was, or even that they could get a star for buying a coffee.

The young tend to readily adopt the technology, while the old might ignore or resist the technology until it becomes impossible. Beside the horror of not being notified of the moment Pumpkin Spice Lattes become available, this means that the old tend to have a poor idea of even the basics of the technology around them. It’s kinda cute that my mom signs her name to Facebook posts. But when the best way a U.S. Senator can explain the internet is by declaring it isn’t a truck, technological ignorance is a more significant problem.

Likewise, judges trying to apply legal doctrines to cutting edge technology can be a hit or miss activity. Unfortunately for all of us, judicial opinions are more durable than the taste of the gross penny candy your grandma gave you that was all the rage before the Hindenburg became artwork for a Led Zeppelin album. Continue reading →

Ed. Note: In light of United States Rep. Anthony Brown’s (D-MD) proposed bill to prohibit “hate speech” on campus, Andrew King and Chris Seaton have agreed to debate whether Congress should craft “hate speech” prohibitions for colleges. This is Andrew’s argument:

Last year saw a number of political events end in violence, and this year that type of violence has mainly shifted to campuses. These violent protests disrupt normal operations, often result in damage to property and injury to people, and cost the colleges for additional security. It’s time, energy, and money that could instead be spent on offering more critical feminist theory classes on campus. And with all the media attention, it is inevitable that politicians would want to wade into this situation and solve the problem at the farthest distance possible from these problems—via Congress.

The federal government has a role in enforcing federal constitutional rights through preventing unlawful discrimination and ensuring equal protection. There have even been instances where that role has been effective. There’s a lot the federal government does wrong, but as the saying goes, even a blind squirrel finds a nut occasionally.

Maryland Representative Anthony Brown is introducing a bill aimed at fighting hate speech on campus. Here’s what he says it will do: Continue reading →

There’s great power in the name Nazi and Nazi imagery. That’s why losers want to claim the identity. Through this new identity they feel powerful and meaningful. It’s not all that different from losers who join ISIS or declare themselves a martyr for a man pretending to be emperor without any of the humor of the Marx Brothers.

Through the magic of our brains, the Tiki Troopers can become feared as Storm Troopers. Though I am sure my grandfather would have no problem distinguishing between the men of the Wehrmacht, SS, the U-Boats, and the Luftwaffe and these wannabe losers. But nowadays ignorance abounds and any asshole can call themselves a Nazi, get attention, and cause fear. And our primitive need to smash a squawking irritant with a rock becomes rationalized and verbalized as the “right to punch a Nazi.”

But there’s a problem with justifying violence against people who say and think things we don’t like. It seems like an obvious problem, but Ken White was forced to state it:

This is the final hypothetical come to pass: if the state asked you to give up freedoms in exchange for a dubious promise it would make you safer, would you do it? Would you convince yourself that the state would only use the power against Them, and not you?

Continue reading →

Justice Clarence Thomas made headlines again by taking a shot at qualified immunity. His opinion highlights that the doctrine is a mess and rests on shaky historical foundations. When merely answering the door can get you shot three times by police officers, without any legal redress, you can question to what strange shores have you been brought by the tides of qualified immunity.

There’s a lot that can be said about the history of sovereign immunity, the Reconstruction Amendments and civil rights acts, and the policy justifications for qualified immunity. And it’s all very interesting legal and historical stuff. Really, it is.

But at the end of the day, a legal case is foremost about solving the dispute at hand and secondarily about reducing uncertainty about legal rights in future matters. At the risk of sounding like a realist, pragmatist like Judge Posner (shudder), all this precedence and historical evidence doesn’t really help the dead guy’s family or the next poor soul who dares open a door with a firearm in hand.

Many criminal procedure and constitutional torts (civil rights claims) are agency problems in disguise. Taking a step back, if I am operating a delivery service with my truck, and I negligently run someone over, I am responsible for the damage. Continue reading →