There is probably no power of the Executive less constrained than the one set forth in Article II, Section 2.

[The President] shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.

Is this power ripe for abuse? Absolutely. The president can use it to buy off the silence of co-conspirators, allies, campaign contributors, pals and pretty much anybody else. Of course, there is an inherent limit on the exercise of the power, as no one gets to use it without first being elected president. Vote well and the power doesn’t get overly abused. Vote poorly and, well, who knows? Continue reading →

An effort to parse the various assertions and statements, both legal and extra-legal, of Trump’s “Elite Strike Force Legal Team,” is not merely a fool’s errand, but one that grows by the day. Add in Trump-adjacent insanity, like Lin Wood’s call for martial law, and the task becomes nearly impossible. Yet, one of Trump’s lawyers, Joe diGenova, has stood out for saying something monumentally reprehensible.

Anybody who thinks the election went well, like that idiot Krebs who used to be the head of cybersecurity. That guy is a class A moron. He should be drawn and quartered. Taken out at dawn and shot.

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Turk sent me over a warm and fuzzy note from New York State’s chief judge, Janet DiFiore, reminding lawyers that as bad as things are due to COVID, the courts still love us. Aww. Buried in Judge DiFiore’s message was a very curious tale about the first jury trial in Queens since the pandemic struck.

And if anyone had any doubt as to the critical importance of restoring functioning grand juries or petit juries, I would highlight the circumstances of the criminal jury trial concluded last week in Queens County. The defendant in that case was arrested in July 2018, more than two years ago. He has been held in custody since then, charged with two counts of burglary in the second degree, and criminal trespass as a misdemeanor. The case was scheduled to go to trial in March, but the arrival of the pandemic and the statewide stay-at-home order halted jury selection and led to a mistrial.

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It can be more like seeing the world through the eyes of a toddler than lawyer, the shock and surprise when a judge you vilified because she was appointed by the president you despise, the judge who was going to destroy all the good of the law and strip decent people of those emanations and penumbras that get in the way of enumerated rights. And then suddenly, without warning, they turn out to be . . . judges. Sometimes, they end up on the side with which you agree. Sometimes not. You know, like judges.

The newest Supreme Court justice, Amy Coney Barrett, is the latest in the trio of presumptively conclusively evil judges, and by definition will use their vote on the Nine to destroy the good law. This certainty gives rise to pre-emptive warnings about how a case may come before the Court because she is now the “deciding vote.” Adam Liptak explains that in one of the most controversial of all constitutional evils, allowing people with prior felony convictions to enjoy fundamental constitutional rights as if they were just like any other citizen. Continue reading →

The obvious problem with a great many studies is that they’re cited for a proposition by people who never read them. They become part of a myth of a study, such as the Lisak study persistently used to show that only 2-10% of rapes are false. It’s not remotely what the study says, and yet it’s become an article of faith, repeated constantly, believed without question. But that’s just one issue.

For people who care enough, as opposed to people who simply cite a study assuming its validity, there are numerous problems that arise, from a study conflating definitions or issues (such as a study about “rape” that includes in its definition the “ear rape” of hearing unwanted words) to the methodology of size, self-selection, payment or incentive. It’s as if I did a study of what everyone living at Casa de SJ thought about something. It might look as official as any other study, but it wouldn’t be of much value to anyone but us. Continue reading →

Thousands took to the streets of Paris in protests that were “mostly peaceful” until they weren’t.

Although the protests across France were mostly peaceful, some violent clashes erupted later in the day between demonstrators and security forces. Some protesters smashed shop windows and set cars and a cafe on fire in Paris, while the police responded by firing tear gas and using water cannons.

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The First Amendment to the United States Constitution protects the free exercise of religion, which makes it a pretty big deal, even if a lot of us aren’t particularly religious, don’t look to a deity to tell us how to live our lives and, frankly, think people who do are kinda bonkers and dumb, believing in some dead sky zombie.

On the other hand, there’s science, and it tells us that COVID-19 can kill. We’re not all that good with dying, or having our family members die, and so in the scheme of relative values, our concern for protecting ourselves and our loved ones from pandemic is far more important than protecting the constitutional rights of a bunch of zombie-fanatics to congregate, spread disease among themselves and then go forth into the community and infect the rest of us. Continue reading →

A conservative law prof raised the common complaint about the lack of diverse political views in academia, which I figured was a complaint that has played out too many times for anything new to be said. I was wrong. A black prawf chimed in with a series of twits that included this:

My own practice has always been to let students know I have views, where they can find them but that I will always demand that they treat each other with respect and dignity and equality in my classroom and when they fail to do so I will hold them accountable.

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There were policies that got a rise out of the angry crowd, like keeping “illegals” from “shithole countries” away from our borders. But there was no screaming about the failure to execute enough people. If it didn’t happen, no one would care, no one would wrap themselves in a MAGA flag to argue whether Trump was bigger than Jesus. Executions just weren’t on the radar. So what happened?

Last week, the Justice Department announced that it plans to execute three more inmates on federal death row. If the administration does so, along with two other executions already scheduled, it will have put 13 prisoners to death since July, marking one of the deadliest periods in the history of federal capital punishment since at least 1927, according to data from the Federal Bureau of Prisons.

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Looking through some of my past Thanksgiving posts provides some needed perspective for me. For many, this has been the worst year ever, between politics, COVID, the economy, education, riots and the culture war. And perhaps it is, at least for some. But what the past reminds us is that problems, suffering and misery have always been here, and if it’s your suffering, it’s the worst.

But this is why we give thanks. Not for the suffering we endure, but for the suffering we don’t. Continue reading →