Outside of Biglaw, the Justice Department has been the primary source for federal judges for a very long time. It’s long been raised as a problem, given that judges presumably are more sympathetic to the prosecution and feel a certain camaraderie with their former government assistants than those nasty criminal defense lawyers with their piles of rubber bands on their desk. And yet, these judges almost never recuse themselves when they catch a criminal case where last week’s AUSA officemate is now standing in the well assuring the court that the defendant is a bad dude.

On occasion, a motion will be made for the judge to recuse him or herself based upon the appearance of a conflict of interest, the very recent and very close connection the former AUSA had with DEA task force. And the motion will, almost invariably, be denied. After all, if former government lawyers cum judge couldn’t hear cases involving the government, they would be relatively useless on the bench since that makes up a huge percentage of the docket. Continue reading →

In a New York Times op-ed, history prof Erik Loomis questions why, in the face of Trump’s massive termination of federally unionized labor, unions have been neither seen nor heard.

This is a most unfortunate Labor Day for labor. The labor movement has taken it on the chin repeatedly in the last several decades, but President Trump is the most ruthlessly antilabor president since before the Great Depression.

If the labor movement does not fight harder than it has since Mr. Trump regained the presidency, its future will be dire.

What goes unmentioned is that Loomis speaks to public sector unionism, which is a breed apart from private sector unions. He’s not wrong that unions have been bizarrely silent in the face of mass firings with neither cause nor reason. There is a huge distinction between the question of whether the government, via Must and the DOGE muskrats, was sound policy (it wasn’t) and whether the workers had a right to their jobs (they didn’t). Continue reading →

Whether it’s federalizing the National Guard or imposing tariffs, the predicate is an emergency. Congress has enacted laws that confer powers, to a greater or lesser extent, on the president to deal with emergent situations that require action immediately and can’t wait for Congress to get its act together. But these laws presuppose that there is, in fact, an emergent situation, an emergency.

In the District of Columbia, Trump declared there is a crime emergency. There was, of course, crime occurring, as there pretty much always is. The magnitude of crime was lower than it had been in the past, although some denied that the statistics were legitimate. Then again, even if the statistics were being fudged, that does not prove that crime was either increasing or a sudden crisis. At worst, it was status quo. What part of this gave rise to an emergency? Trump said so. Continue reading →

The Court of Appeals for the Federal Circuit, en banc, affirmed the decision of the Court of International Trade (CIT) that the president has no authority under the International Emergency Economic Powers Act of 1977  (IEEPA) to unilaterally impose tariffs. Declaring an emergency does not empower the president to do whatever he pleases, even if he puts on a cool Liberation Day show.

Contrary to the Government’s assertion, the mere authorization to “regulate” does not in and of itself imply the authority to impose tariffs. The power to “regulate” has long been understood to be distinct from the power to “tax.” In fact, the Constitution vests these authorities in Congress separately. U.S. Const. art. I, § 8 cl. 1, 3; see also Gibbons v. Ogden, 22 U.S. 1, 201 (1824) (“It is, that all duties, imposts, and excises, shall be uniform. In a separate clause of the enumeration, the power to regulate commerce is given, as being entirely distinct from the right to levy taxes and imposts, and as being a new power, not before conferred. The constitution, then, considers these powers as substantive, and distinct from each other.”); Nat’l Fed’n. of Indep. Bus. v. Sebelius, 567 U.S. 519, 552, 567 (2012).

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It has come to my attention that a local high school football coach was recently fired for the egregious sin of taking his players to a football game.

Apparently the team’s bus broke down and no replacements were forthcoming. In a moment of pure country ingenuity, the coach put the team in the back of his pickup truck and drove them approximately an hour away to the site of the game. For this, he was dismissed.

This outcome is unacceptable bullshit. What was he supposed to do, cancel the game? What kind of lesson does that teach young men? If anything, Coach should’ve been given a raise for teaching all those young men that you make your towns, show up to your commitments, and give them your best effort no matter what. Continue reading →

It’s a curious complaint, challenging Federal Reserve Governor Lisa Cook’s purported firing by President Trump. While there is more than enough to substantiate her position that she engaged in no mortgage fraud, the gravamen of the complaint isn’t that she’s innocent and falsely accused, but rather that regardless of the accusation, it would not constitute a basis for her removal from the Fed board of governors.

This case challenges President Trump’s unprecedented and illegal attempt to remove Governor Cook from her position which, if allowed to occur, would the first of its kind in the Board’s history. It would subvert the Federal Reserve Act (“FRA”), which explicitly requires a showing of “cause” for a Governor’s removal, which an unsubstantiated allegation about private mortgage applications submitted by Governor Cook prior to her Senate confirmation is not.

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It’s nearly inconceivable that the loudmouthed fool appointed as United States Attorney for the District of Columbia, chosen to replace the incompetent minion who was so awful that not even the uber compliant Senate would confirm him, was unable to get an indictment in three tries. For those who would come up with other excuses, like the grand juries thrice refused to indict because it was comprised of radical leftists, bullshit.

It takes almost nothing to indict, the process being entirely one sided and allowing hearsay accusations to substitute for evidence. Sol Wachtler’s “ham sandwich” quote is too on the nose. Yet, Jeanine Pirro failed. And failed. And failed. And so Sidney Reid will be charged with misdemeanor assault, because no indictment is needed. Continue reading →

Other than the fact that it didn’t include the word “Epstein,” it’s unclear what caused President Trump to suddenly concern himself with “cashless bail,” as he calls it, other than his latest thrust to make himself the president who ended crime and win public adoration and a prize. When Trump decides to concern himself with something, he issues an order about it, because “I have the right to do anything I want to do. I’m the president of the United States.”  So the president signed an Executive Order entitled “Taking Steps To End Cashless Bail to Protect Americans.”

Many very smart and knowledgeable people have spent a great deal of time trying to find the “right” answer to dealing with bail and pretrial detention. I’ve been dubious, if not critical, about many of the reforms enacted over the past few years. Then again, I’ve been dubious, if not critical, about the handling of bail before these reforms. Trump’s EO, on the other hand, reflects neither the thoughts nor solutions of smart and knowledgeable people. Continue reading →

With far too many issues raised in a day to address, none of which had anything to do with Jeffrey Epstein, Trump ran the gamut from criminalizing protected free speech in an Executive Order criminalizing the burning of the American flag (and announcing the sentence to be imposed for doing so!), to violating the Posse Comitatus Act by federalizing National Guard units to perform law enforcement functions when there is no local request or emergency**

To cap off the day, President Trump “fired” member Lisa Cook of the Federal Reserve Board of Governors. By firing her and replacing her with one of his guys, it would give Trump a majority of the Board and enable him to dictate monetary policy, among other things, to his performative advantage of reducing the interest rate at the expense of sound economic policy. Continue reading →

It’s hard to imagine that John Bolton, after years and multiple investigations, is illegally in possession of classified documents. If so, it still isn’t remotely like Trump’s being given multiple opportunities to return the docs and refusing, lying and concealing so he could show them to randos and impress people with how important he was. And Trump not only said he was not a fan of Bolton’s, whom he claimed he fired and Bolton claimed he quit Trump 1.0, but he stripped Bolton of his security clearance and detail, even though he was under threat, on Day 1.

Still, raids need search warrants, and search warrants need Magistrate Judges to sign off on them. And yet, Trump’s actions have sown the seeds of mistrust in anything that gets touched by his bloated yet grubby fingers. Continue reading →