Following news of Eastern District of Virginia Judge T.S. Ellis’ putting some pointed questions to Michael Dreeban, the prosecutor from Bob Mueller’s Special Counsel office prosecuting former Trump campaign manager Paul Manafort, a segment of the internet exploded in outrage at his disrespectful lack of civility.

“I don’t see what relation this indictment has with anything the special counsel is authorized to investigate,” he said, according to a transcript of the hourlong hearing on a defense motion to dismiss the charges. He added, “What we don’t want in this country is we don’t want anyone with unfettered power.”

Of course, this was a judge appointed by Reagan, so he must have been biased, as is assumed these days of all judges by dint of their patrons. That made his more explicit question all the more uncivil. Continue reading →

It’s an old joke. Much like the “dirty old man” jokes that were commonplace years ago, this harkens back to the days of fancy department stores with elevator operators who would announce what Macy’s had for sale as the door opened on each floor. And Professor Richard Ned Lebow, told it.

Those two words — the speaker remembers saying “ladies’ lingerie,” a passenger who was offended recalls hearing “women’s lingerie” — have turned into the latest exemplar in the academy of political correctness gone wild.

The episode, which has not been previously reported, occurred last month in San Francisco at the annual meeting of the International Studies Association. Richard Ned Lebow, a professor of political theory at King’s College London and the 2014 recipient of ISA’s distinguished scholar award, made the remark after someone in his elevator called out to ask for floor requests.

Not funny? Fair enough. You don’t have to find somebody else’s joke a knee-slapper. In fact, you can find it pretty bad, stupid, even awful. But Simona Sharoni found it more than she could take. Continue reading →

New York City Mayor Bill de Blasio announced that he’s now in favor of safe injection sites. Whether you think it’s a good idea (I do) or not isn’t important for the purpose of this post. What is important is that it comes from the mayor. Not Cy Vance, the district attorney.

Why? It’s not Vance’s job. In contrast, Philadelphia district attorney Larry Krasner announced the same for his jurisdiction, to the applause of reformers. It’s understandable, as they strongly support the initiative, and it wasn’t coming from anyone but Krasner. He also announced that he would stop prosecuting people for shooting up there. And for using pot.

These may well be great initiatives, the ones people had long hoped would change. But they changed not because legislatures changed the laws, or executives changed the policies, but because reform district attorneys decided to change their job. This has become the new push for reform. Continue reading →

A question was posed by an honorable Nebraska fellow as to how an old trench lawyer might view the efficacy of a president having a chat with a special counsel charged with investigating him. While I may lack the inscrutable tactical acumen of former United States Attorney, Rudy Giuliani, who foretold that he would have this wrapped up* in “a week or two,” a few considerations come to mind.

It’s often beneficial to agree to an interview.** It allows a target or subject the opportunity to do so at his relative convenience and to fully prepare in advance for the interview. There is much to be gleaned from the questions asked, the tone of the interrogation, even the people at the table. Everything from who does the questioning to the “tells” of those taking notes provides insight into what they’re truly interested in, what they’re trying to get out.

Understand that there are invariably questions posed which they already know the answer to, or at least believe they do, so as to create the “perjury trap.” Often, these questions are posed in a tricky way, often overbroad or impossible to answer with complete accuracy. Any crack in the response can be exploited as a lie by a reasonably competent prosecutor. Still, knowing this going in makes it far easier to address. Continue reading →

Saifullah Khan was acquitted. The allegations brought against the Yale grad student went before a jury and, after due deliberation, the jury said no. Not Guilty. In a rational world, that would be the end of that, but this isn’t a rational world. It’s Yale.

Saifullah Khan, the former Yale student who was found not guilty of sexual assault by a criminal court in March, said on Monday that the University Wide Committee on Sexual Assault has resumed its hearing process on his case to determine whether he can re-enroll at Yale.

Before you mumble anything about double jeopardy, it’s not. The Yale process isn’t criminal, but regulatory. More importantly, the same distinction that allows a federal defendant to be sentenced for acquitted conduct, or an acquitted defendant to be put on the sex offender registry, comes into play. Continue reading →

There are questions that can’t be asked on a job application, such as what is your race.* There are questions that can.

Regardless of personal demographic characteristics, UC San Diego has a strong interest in ensuring that all candidates hired for faculty appointments share our commitment to excellence, access, and Principles of Community.

All candidates applying for faculty appointments at UC San Diego are required to submit a personal statement on their contributions to diversity. The purpose of the statement is to identify candidates who have the professional skills, experience, and/or willingness to engage in activities that will advance our campus diversity and equity goals.

The question isn’t whether you support the “campus diversity and equity goals,” but rather more specific. Continue reading →

I’ve been pretty harsh on the ACLU here. There were clues that I should have seen, but didn’t. An upcoming article in The Nation, however, has enlightened me, and now I realize the error of my criticism.

People Power emerged out of the ACLU’s sudden, explosive growth in the wake of Trump’s election. In Arizona, statewide membership jumped from 5,500 to more than 22,000; nationwide, it soared from 450,000 to 1.84 million. Followers on Facebook, Twitter, and Instagram quadrupled. Donations skyrocketed, from less than $5 million annually in online contributions in recent years to $86 million in the year after the 2016 elections. Meanwhile, the ACLU went on a hiring spree—116 new positions at national offices around the country. Many new staffers are supporting People Power, which now has 250,000 members in all 50 states and the District of Columbia.

People Power. It’s not just a cute slogan to suck in donations, but an entirely new direction. Continue reading →

Dahlia Lithwick tries to draw a straight line from Michelle Wolf’s comedy at the White House Correspondent’s Dinner, which every president attends except this one, to the Supreme Court.

And at the Supreme Court, during last week’s oral arguments in the travel ban case, Trump v. Hawaii, we were transported to a bizarre world in which this president was discussed as if he were a normal head of state.

At stake here is the presumption of regularity, the presumption that the president is acting in good faith. Lithwick, and many others in the media, have decided that this president is unworthy of the presumption. Continue reading →

Appellate Squawk can say more with a pic than I can in a thousand words.

Comes now New York’s highest court with the holding that an accuser’s trial testimony constitutes clear and convincing evidence of the truth of her accusations, even though the jury found her not credible and acquitted the defendant of those charges. 

This is the sort of sophistry that only a lawyer can fathom, like “acquitted conduct” in federal sentencing. Continue reading →

A bill has passed the Colorado house addressing the process for handling Title IX sexual misconduct allegations, one aspect of which is to require colleges to provide an advisor to the accused. Good news? Maybe not so much.

HB 18-1391, “Sexual Misconduct in Higher Education” aims to require higher education institutions to set clear policies for sexual assault reporting and investigating, and to establish minimum standards for those policies.

The bill would limit the involvement of legal counsel in proceedings. The accuser and the accused would have “the same opportunities to have an advisor or other person present during any part of the proceeding; except that the advisor or other person is not allowed to speak on behalf of the complainant or responding party during the course of the proceedings.”

Oddly, the text of the bill says nothing of the sort. Continue reading →