Michael Flynn’s lawyer, Robert Kelner, responded to the Senate Intelligence Committee’s subpoena in the only rational and responsible way: he invoked Flynn’s rights under the Fifth Amendment.

Mr. Flynn had been ordered by the Senate Intelligence Committee to hand over emails and other records related to any dealings with Russians as part of that panel’s investigation into Russian meddling in the 2016 election. His decision to invoke his Fifth Amendment right puts him at risk of being held in contempt of Congress, which can also result in a criminal charge.

In a letter to the heads of the Intelligence Committee, Mr. Flynn’s lawyers said that the accusations against him, as well as the appointment of a special counsel to oversee the Justice Department investigation into Russian election interference, gave him “reasonable cause to apprehend danger” should he comply with the subpoena.

The outrage was palpable, as people wanted desperately for Flynn to spill his guts and implicate Trump in something nefarious. How dare he “hide” behind the Fifth! Continue reading →

One of the long-standing, and most admirable, characteristics of New York City’s Legal Aid Society was that its lawyers were a tough crew. They handled tough cases. They fought hard. They dealt with nasty cases and nasty people, and they were tough enough to do so. As a training ground for criminal defense lawyers, there were few places one could do better.

But has the toughness given way to political correctness? So it appears from their newly revised Equal Employment Policy.

As an equal opportunity employer, The Legal Aid Society prohibits discriminatory employment actions against and treatment of its employees and applicants for employment based on actual or perceived race or color, religion or creed, alienage or citizenship status, sex (including pregnancy), national origin, age, sexual orientation, gender identity (one’s internal deeply-held sense of one’s gender which may be the same or different from one’s sex assigned at birth; one’s gender identity may be male, female, neither or both, e.g., non-binary), gender expression (the representation of gender as expressed through, for example, one’s name, choice of pronouns, clothing, haircut, behavior, voice, or body characteristics; gender expression may not be distinctively male or female and may not conform to traditional gender-based stereotypes assigned to specific gender identities), disability, marital status, familial status, domestic partnership status, genetic information or predisposing genetic characteristics, military status, domestic violence victim status, arrest or pre-employment conviction record, or any other characteristic protected by law.

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The word “stunning” in the twit caught my eye. What had I missed that should have stunned me?

Rod Rosenstein’s failure to recuse himself from the Russiagate probe is, frankly, stunning. https://t.co/JUo4Bn52jq

— Daniel Hemel (@DanielJHemel) May 21, 2017

Daniel Hemel is a University of Chicago lawprof, so it’s not as if he should be dismissed as just another lunatic on the twitters. Yet, what could be so horrible about Rod Rosenstein not recusing himself from the Bob Mueller special counsel investigation? Continue reading →

The best part of Alan Dershowitz’s Fox News op-ed is the title, Dershowitz: Mueller’s special counsel appointment begs the question — are our civil liberties now at risk? No doubt it was written by some wag at Fox, but its misuse of the logical fallacy, beg the question,* makes it deliciously delightful when it comes to brother Dersh.

But his rant has a point, even if proposed in the barely-concealed desire to be retained for the defense.

This investigation will be conducted in secret behind closed doors; witnesses will be denied the right to have counsel present during grand jury questioning; they will have no right to offer exculpatory testimony or evidence to the grand jury; inculpatory hearsay evidence will be presented and considered by the grand jury; there will be no presumption of innocence; no requirement of proof beyond a reasonable doubt, only proof sufficient to establish the minimal standard of probable cause. The prosecutor alone will tell the jury what the law is and why they should indict; and the grand jury will do his bidding. As lawyers quip: they will indict a ham sandwich if the prosecutor tells them to. This sounds more like Star Chamber injustice than American justice.

Should Dersh be forgiven his theft without citation of former New York Chief Judge Sol Wachtler’s “indict a ham sandwich” quip? He can’t blame that on some Fox News wag, but I digress. Continue reading →

When you read about a miscarriage of justice, more accurately framed as the system gone horribly wrong for reasons that defy any rational explanation, do you feel empathy toward the maligned victim or believe that mistakes will invariably happen in an imperfect system, and somebody has to end up being the poor schmuck who takes one for the team?

Chicago police arrested [John Adam] Jones and two friends outside his parents’ home in May 2015, saying their clothes matched the description given by the victims of an armed robbery.

Although no gun or stolen items were recovered from his home and the victims had not identified his face, Jones says officers got approval from a prosecutor’s office to charge him with a felony by not disclosing their lack of evidence.

The charges were eventually dismissed by directed verdict when Jones couldn’t be identified as the perpetrator of the crime. Justice was done? Well, the disaster could have been worse, given that he didn’t spend ten years in prison before anyone figured out he was innocent. Or never figured out he was innocent. But Jones filed suit because his arrest at 18 years of age had some consequences that could strike home with a lot of people, including police officers who, like other folks, occasionally have sex and produce offspring. Continue reading →

Before Donald J. Trump was sworn in as the 45th President of the United States, the #Resistance was calling for his impeachment. It was simultaneously adorable and horrible, reflecting that exceptional combination of passion and ignorance that could only possess the minds of so many well-intended, well-educated, totally batshit crazy people in the Age of Emotion.

It was Stephen Colbert who, in his humorous way, saw this coming years in advance and gave it a name:

Merriam-Webster’s #1 Word of the Year for 2006:

truthiness (noun)

1 : “truth that comes from the gut, not books” (Stephen Colbert, Comedy Central’s “The Colbert Report,” October 2005)

2 : “the quality of preferring concepts or facts one wishes to be true, rather than concepts or facts known to be true” (American Dialect Society, January 2006)

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Should fear be the primary motivator for first year law students? At PrawfsBlawg, Andrew Guthrie Ferguson argues that it’s the wrong way to go.

Even with professors who try to be nice, open, inclusive and “definitely not scary,” fear exists.  I don’t consider myself a scary teacher.  I teach soft-Socratic with plenty of humor, banter, and encouragement.  I view myself as a “coach” not a drill sergeant (or appellate judge).  But, there is still fear.  The role of standing up in front of dozens of students and commanding attention, respect, and precision with the subject matter generates a healthy fear.

And, that is my question — is fear healthy?

Ah, the good old days of Professor Kingsfield. While John Houseman only played a law professor in the movies, this was very much the law school norm back in the old days, before students decided they were consumers and demanded a tummy rub with every valued thought. Continue reading →

In the midst of a year’s worth of scandal in a week, it’s hard to squeeze in the obvious, even when it’s captured on video in living color. But in almost any other time in history, Turkish goons beating and kicking protesters on American soil would have shocked a nation.

It’s a mark of these tumultuous political times that an act of outrageous viciousness this week by Turkish President Recep Tayyip Erdogan’s bodyguards on peaceful protesters in Washington, D.C., has barely caused a public ripple.

There’s a very important bit of insight hidden within this observation. No one who can spell his name would think Recep Tayyip Erdoğan anything other than a vicious authoritarian. When that’s your reputation, it alters expectations. After all, what kind of people would such a guy have protecting him? Just because Erdogan is in the United States doesn’t mean he stops being Erogan, or that his “security” detail stops being thugs.

But when it comes to beating protesters on American soil, that’s the job of our police, not theirs. They don’t know their place. Continue reading →

If New York Governor Andy Cuomo has a therapist, it has to be a really hard gig, as the split in his progressive personality keep revealing itself as he runs for re-election.  On the one hand, he’s desperately courting the campus feminist vote by doubling down on his Enough Is Enough law. On the other, how can he not include our “Community Heroes” in the hate crimes law?

Enough is enough? You bet.

“As Governor of New York, but even more so as a father, the safety of New York’s students is my top priority,” Cuomo said in a news release. “New York led the nation by signing into law the strongest policy to combat sexual assault on college campuses, and now we are ensuring every university fully meets their obligations under that law. We must take every measure to protect our students from harm, and we will accept nothing less from our state’s colleges and universities. Enough is enough.”

Andy is a father. Of two college-age girls. What kind of father wouldn’t take care of his own kids and fry the others to make their world just a little more wonderful? But with an election coming, he has to remind his progressive base how much of a feminist ally he is, and you can’t keep re-enacting the same law, so you need to come up with some other way to spend money, even if there isn’t enough to fulfill constitutional mandates that won’t buy him feminist love. Continue reading →

Being an old white cis-gendered male lawyer, it would be wrong of me to say this, so I’ll let Appellate Squawk* do my dirty work.

Scene: Arraignment pens, counsel visiting area. 

Lawyer: Hi there! I’m Suzy, a cis-gendered woman, and I’ll be your attorney for today.

Defendant: About time. I’ve been locked up for a week without seeing a lawyer. I’m innocent. The cops broke down my door without a warrant –

***

Lawyer:  [Reading from a card] I need to know whether your name expresses your internal deeply-held sense of your gender which may or may not be the same or different from your sex assigned at birth – Continue reading →