legal

Supreme Court likely to say states can’t levy excessive fines

The Supreme Court left little doubt Wednesday that it would rule that the Constitution’s ban on excessive fines applies to the states, an outcome that could help an Indiana man recover the $40,000 Land Rover police seized when they arrested him for selling about $400 worth of heroin. A decision in favor of 37-year-old Tyson Timbs, of Marion, Indiana, also could buttress efforts to limit the confiscation by local law enforcement of property belonging to someone suspected of a crime. Police and prosecutors often keep the proceeds. Timbs was on hand at the high court for arguments that were largely a one-sided affair in which the main question appeared to be how broadly the state would lose. The court has formally held that most of the Bill of Rights applies to states as well as the federal government, but it has not done so on the Eighth Amendment’s excessive-fines ban. Justice Neil Gorsuch was incredulous that Indiana Solicitor General Thomas Fisher was urging the justices to rule that states should not be held to the same standard. “Here we are in 2018 still litigating incorporation of the Bill of Rights. Really? Come on, general,” Gorsuch said to Fisher, using the term for holding that constitutional provisions apply to the states. Justice Stephen Breyer said under Fisher’s reading police could take the car of a driver caught going 5 mph (8 kph) above the speed limit. “Anyone who speeds has to forfeit the Bugatti, Mercedes or special Ferrari, or even jalopy,” Breyer said. Fisher agreed. It was unclear whether the justices also would rule to give Timbs his Land Rover back or allow Indiana courts to decide that issue. Some justices seemed willing to take that additional step. “If we look at these forfeitures that are occurring today … many of them are grossly disproportionate to the crimes being charged,” Justice Sonia Sotomayor said. But Chief Justice John Roberts said the question of whether what happened to Timbs was excessive might be a closer call. Timbs drove his car to the place where he twice sold small amounts of heroin to undercover officers, and he carried the drugs in the car, Roberts said. Police have long been allowed to seize property in such situations. “You will lose assets you used in the crime,” Roberts said. “You can see how that makes a lot of sense.” Lawyer Wesley Hottot, representing Timbs, told the justices that in rural areas people drive places. He said the use of the Land Rover was incidental to the sale of the drugs. The case has drawn interest from liberal groups concerned about police abuses and conservative organizations opposed to excessive regulation. A decision in Tyson Timbs and a 2012 Land Rover LR2 v. Indiana, 17-1091, is expected by June.

 

Analysis: Trump is right about biased judges; Schumer acknowledges ‘highly political’ rulings

Like a basketball player who mistakenly shoots into his own basket and scores points for the opposing team, Senate Democratic Leader Chuck Schumer of New York has inadvertently backed President Trump’s accurate contention that there are liberal judges appointed by Democrats and conservative judges appointed by Republicans who rule differently on cases. After President Trump criticized U.S. District Judge Jon S. Tigar of San Francisco on Tuesday for issuing an order to stop Trump’s new emergency restrictions on asylum claims by immigrants from taking effect – calling Tigar “an Obama judge” – Chief Justice of the United States John Roberts issued a rare public statement rebuking the president. “We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” Roberts said Wednesday. “What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.” Schumer piled on, criticizing President Trump in a Friday tweet: “I don’t agree very often with Chief Justice Roberts, especially his partisan decisions which seem highly political …. But I am thankful today that he – almost alone among Republicans – stood up to President Trump and for an independent judiciary.” OK, stop and think about that tweet. If Schumer calls Roberts a Republican and believes the chief justice issues “partisan decisions which seem highly political” he is corroborating President Trump. The New York Democratic senator sank one for the president. President Trump was stating a fact when he noted that district and appellate court judges from the 9th U.S. Circuit – which exercises jurisdiction over nine Western states and two U.S. island territories – tend to support liberal and Democratic positons in their rulings. Roberts was right to say an independent judiciary is essential and an ideal that judges should strive for. But we live in the real world, not an ideal world. In the real world, judges are not computers, all coming to identical conclusions on cases. Judges are individuals who come to the bench with different life experiences, different judicial philosophies, and – yes – different political views. That’s why they don’t always reach the same conclusions on the same cases. President Trump’s observation about the 9th Circuit undercuts respect for rulings from that circuit, but the truth hurts. As the old saying goes, “facts are stubborn things.” Here, the facts are with President Trump, if you look at the numbers. The 9th U.S. Circuit Court of Appeals – where I served as a law clerk many years ago – has swung incontrovertibly to the left over the past 30 years. The president correctly stated that lawyers opposing his policies forum shop to bring their cases before federal judges appointed by Democrats, because they know such judges are more likely to rule in their favor. An increasing number of these judges seem enamored of the media attention their anti-Trump rulings garner. Media adulation encourages “judicial dicta” – court rulings that go beyond facts presented in a case and the application of law to those facts. District judges in the 9th Circuit are issuing imperious rulings, particularly on immigration cases. In some cases, they have claimed their rulings apply to every federal court in the nation. But that is not how the law works. Not surprisingly, the U.S. Supreme Court has consistently overturned hard-left decisions coming out of the 9th U.S. Circuit Court of Appeals. The nation’s highest court accepts cases for review when four members believe circumstances warrant. Typically, a case must be of significance, involve conflicting rulings by appellate courts, or deal with a major contested question. While only a fraction of appeals to the Supreme Court receive review, the American Bar Association reports that 80 percent of the 9th Circuit rulings reviewed by the Supreme Court are overturned. Only one circuit has a higher percentage of overturned cases – the U.S. Circuit Court of Appeals for the District of Columbia. They are overruled 83 percent of the time. Notably, that court has 17 Democratic appointees and nine Republican appointees at the district level, and seven Democratic appointees and three Republican appointees active at the appellate level. Altogether, there are 24 Democratic appointees and only 12 Republican appointees. Similarly, in the 9th U.S. Circuit, Democratic appointees outnumber Republican appointees 116 to 33 at the district court level. At the appellate level, Democratic appointees number 16, Republicans just seven. Moreover, of the 132 active Democratic-appointed federal judges within the 9th Circuit, 66 – including Judge Tigar, who was criticized by President Trump – were appointed by President Obama. In other words, 57 percent of Democratic appointees to the 9th Circuit are “Obama judges.” And yes, these are the ones who have made headlines ruling against this President Trump. In effect, what these numbers suggest is exactly what President Trump asserts – that Democratic-appointed judges in the 9th Circuit are out of sync with U.S. Supreme Court precedent, consistently leaning too far left, and with a majority Democrat appointees, most of whom are Obama appointees. Run a counterproof. What is the least-reversed circuit – the one most in sync with the Supreme Court? The 7th U.S. Circuit Court of Appeals, which was reversed only 55 percent of the time. What is that circuit’s composition? Republican appointees outnumber Democrats nine to two. Bottom line: An independent judiciary, in the best tradition of Chief Justice John Marshall, is vitally important. Judges should decide cases in a nonpartisan way. They should review facts impartially, then apply law without personal prejudice or political preference, resolve disputes on narrow legal grounds, construe the Constitution strictly, defer to other branches as constitutionally appropriate, and avoid legislating from the bench. To this extent, Justice Roberts is correct – and in sync with what President Trump and traditional constitutionalists say: America needs a credible, nonpolitical, and independent judiciary. That is and should be a shared goal. However, absent a conscious effort to avoid politics – and in the case of Democratic-appointees, to avoid legislating from the bench – judges who first rose from politics to their judicial appointments seem to drift backward toward their political leanings. President Thomas Jefferson worried about this exact problem. In 1801, he foresaw judicial overreach and warned – even then – that leaders of the political opposition “have retreated into the judiciary as a stronghold, the tenure of which renders it difficult to dislodge them.” In 1807 Jefferson wrote to a friend: “The original error … (was) establishing a judiciary independent of the nation and which, from the citadel of the law, can turn its guns on those they were meant to defend, and control and fashion their proceedings to its own will.” So while we all wish for an independent judiciary – judges who apply the law strictly and on a nonpartisan basis – the 9th U.S. Circuit stands out like a sore thumb. The judges have progressively drifted from the ideal. Accordingly, the facts are with President Trump on this one.

Agreed 100%!!  Thanks to Robert Charles for that spot-on legal op-ed. Robert Charles is a former assistant secretary of state for President George W. Bush, former naval intelligence officer and litigator. He served in the Reagan and Bush 41 White Houses.

Trump responds to CNN, says no First Amendment right to enter White House

Journalists have no First Amendment right to access the White House and CNN isn’t harmed by having reporter Jim Acosta barred from obtaining press credentials, the Justice Department said Wednesday, firing back at the cable network’s new lawsuit. CNN has 50 other journalists covering the White House and so the network isn’t punished by having one barred, the department said in a 28-page response filed in federal court in Washington, D.C. “No journalist has a First Amendment right to enter the White House,” the administration argued. The lawyers added: “The president is generally free to open the White House doors to political allies, in the hopes of furthering a particular agenda, and he is equally free to invite in only political foes, in the hopes of convincing them of his position. The First Amendment simply does not regulate these decisions. And the First Amendment does not impose stricter requirements when journalists, as a subset of the public, are granted or denied access to the White House.” The White House said Mr. Trump gave his personal blessing to strip Mr. Acosta’s pass last week after he verbally sparred with the president during a press conference, then got into an altercation with a White House intern. When the woman came to take the microphone from him, Mr. Acosta refused to give it back, using his hand to chop at the woman’s elbow as she tried to take control of the microphone. That contact has been widely debated. CNN downplayed it, while the White House said it was a physical assault on the woman, and used that as one justification for revoking Mr. Acosta’s press pass. The Justice Department said his conduct “disrupts press events and impedes other reporters from asking questions,” which officials said was “a more-than-sufficient reason for revoking his hard pass.” CNN counters that the move will produce a “chilling effect” in the media. Fox News, the Associated Press and other press outlets agreed, announcing Wednesday they will file friend-of-the-court briefs backing CNN. The Justice Department, though, pointed to a 2006 case involving a dispute between Maryland’s governor and the Baltimore Sun newspaper. A federal court in that case ruled the governor didn’t violate the First Amendment by ordering state employees not to speak with two reporters from the paper. “In reaching that conclusion, the court explained that providing ‘relatively less information’ to one reporter was permissible, even when done ‘on account of [that journalist’s] reporting,’” the lawyers argued.

The lawsuit filed in federal court by CNN against the White House for stripping Jim Acosta of his “hard pass” is beyond ridiculous.  The very notion that his First Amendment rights were somehow violated is silly.  As a refresher…  The First Amendment to the Constitution says, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”  The key words are “Congress shall make no law..”  Nowhere in there does it say the White House, or the President, or the Executive Branch may not prohibit a member of the press from going into the White House.  Nowhere.  Previous administrations have revoked “hard passes” for all sorts of reasons.  But, of course..this is Trump.  So, suddenly its “unheard of” or an “assault on the press” and other such ridiculous nonsense put out there by CNN, MSNBC, and other members of the dominantly liberal mainstream media.  We’re disappointed to see Fox News jump on the band wagon.  Jim is a self-serving, grand-standing, obnoxious tool who makes his broadcasts all about himself; not the president he’s supposed to be covering.  Historically, the President calls on reporters and answers questions.  Not Jim.  He likes to be combative with Trump.  And, he’s very open about it.  He’ll say, “I’m gonna challenge you on…”  That’s not his role.  It’s simply to report along with the rest of the press “pool”..and if given the opportunity to actually ask the president a question, the he should ask, then sit his ass down and pass the microphone to the next reporter…and allow the president to answer.  By the way.. The president is NOT obligated to have such Q & As with the press.  And, the whole incident with Jim getting physical with the poor White House intern just trying to do her job was the final straw for a White House press office that has endured Jim’s nonsense for far too long.  So, he had his hard pass rejected…and deservedly so.  Let’s hope the courts slap CNN down for this ridiculous lawsuit.

American lawyers rush to Mexico to help caravan

A team of American lawyers is being deployed to Mexico to help advise members of the new migrant caravan on their options as they try to reach the U.S. and, in many cases, to demand asylum. The Coalition for Humane Immigrant Rights, a Los Angeles-based organization, said it wanted to be proactive in getting assistance to the caravan, which has reached Mexico City. “Our immigration attorneys are part of a humane, compassionate, and concrete response for migrants,” said Luis Perez, legal services director for the group. While the elections have pushed the caravan from the front pages this week, thousands of Central Americans are still intent on reaching the U.S. They’ve camped in Mexico City where, according to local news reports, they are debating the route they’ll take as they head north, trying to reach the U.S.-Mexico border. President Trump has deployed more than 5,000 active-duty U.S. troops to the American side of the border, where they are hardening the ports of entry with razor wire fencing and working to support Border Patrol agents in the field. But it’s not clear the troops will have much effect on migrants who intend to show up at the ports of entry and demand asylum, exploiting what the administration calls “loopholes” that allow them to gain a foothold here even though few will eventually be deemed qualified. Mr. Trump last month said he would sign an executive order this week clamping down on asylum claims, though he didn’t give any details.

THIS is why it is imperative that these individuals NOT be allowed to step one foot on U.S. soil.  Once they do, then they’ll get all sorts of legal protection and other freebies that we, the actual tax-paying legal citizens of America, will have to pay for.

Opinion/Analysis: Jeff Sessions did many good things as attorney general and deserves our nation’s thanks

There is no question that Attorney General Jeff Sessions – who was fired Wednesday – had a rocky relationship with President Trump, tied to Session’s recusal from the investigation of Russia’s interference in the 2016 U.S. presidential election and possible collusion with Trump campaign. But Sessions’ firing on orders of President Trump should not diminish the fact that Sessions’ very commendable leadership over the past two years has helped restore the integrity of the Justice Department and get it back in the business of enforcing the law. As the 84th attorney general of the United States, Sessions renewed the Justice Department’s “emphasis on fighting violent crime, illegal immigration, and the drug epidemic,” according to former Attorney General Edwin Meese. The Obama administration had a very adversarial relationship with state and local law enforcement agencies, unfairly criticizing and taking actions against local police departments. It abused its authority far beyond the law in a way that hampered the ability of police officers to protect the public. Sessions stopped this abuse and restored the cooperative and productive relationship the Justice Department had long had with law enforcement. Sessions also put the power of the Justice Department behind the president’s promise to crack down on illegal immigration. In addition, Sessions went after sanctuary cities that try to obstruct federal immigration law and successfully defended (all the way to the U.S. Supreme Court) the power of the president to safeguard the country from illegal immigrants seeking entry from terrorist safe havens. On top of this, Sessions reinvigorated the Justice Department’s enforcement of our immigration laws. His particular emphasis on the dangers created by cities that provide sanctuaries for violent illegal immigrants was a change that should be welcomed by everyone – particularly the many American families that have been victimized by such violence. One of the biggest scams of the Obama administration involved the Justice Department entering into settlements and non-prosecution agreements that forced defendants to agree to make large payments not to actual victims or the U.S. Treasury, but to third parties that were not involved in the prosecution. Those third parties were often political allies of the Obama administration. The Justice Department was in essence abusing its law enforcement power to help create slush funds for left-wing advocacy organizations. With a Republican administration in control of the Justice Department, Sessions could have used the same corrupt practice to fund conservative advocacy organizations. Instead, he took the correct, ethical action – he ordered this practice stopped entirely. Sessions also stopped another practice the Obama administration used to avoid public (and legal) scrutiny of its policies. Federal law requires federal agencies that implement new regulations to go through an extensive public notice process. This is very important because it provides transparency in government decision-making and gives everyone who may be affected – from individuals to corporations –the ability to review and comment on proposed regulations. To evade this process, the Obama administration took to issuing so-called “guidance documents,” which it claimed were not regulations. Yet the administration would then go after anyone who did not abide by these guidance documents as if they were published regulations. At the direction of Attorney General Sessions, the Justice Department issued a memorandum forbidding its lawyers from treating agency guidance documents as authoritative law entitled to deference when the government brings a civil enforcement action in court against private parties. On Session’s watch, the Justice Department dropped several other questionable practices. For example, after years of opposing a commonsense voter ID law enacted by the Texas Legislature, the Justice Department reversed its position – and the 5th U.S. Circuit Court of Appeals agreed that the law was not discriminatory. The Justice Department under Sessions also opened investigations into schools like Harvard University accused of discriminating against Asian-American students. The Obama Justice Department essentially ignored the discrimination complaints it had received from students. Sessions also went after restrictive speech codes that violate college students’ First Amendment rights. President Trump has expressed anger over the seemingly endless Russia collusion investigation being conducted by Special Counsel Robert Mueller. Mueller was appointed by Deputy Attorney General Rod Rosenstein after Sessions recused himself from the investigation because of his involvement in the Trump election campaign. Whether Sessions needed to recuse himself is a debatable issue, with good legal arguments on both sides. Sessions took the safest route to ensure that there could be no question raised by anyone of undue or improper influence over the special counsel’s investigation. It is hard to fault him for that. It should also be pointed out that, to date, the special counsel has still not publicly revealed any evidence of any kind showing that collusion between the Trump campaign and Russia occurred. No wonder the president is frustrated. All in all, Sessions has done a good job as attorney general. And he did that despite the fact that, because of Senate Democrats obstructing the confirmation process, most of the Justice Department’s major divisions lack an appointed assistant attorney general to run them. In many ways, Sessions was operating with an inadequate staff and one hand tied behind his back. Jeff Sessions put the nation’s largest and most powerful law enforcement agency back on course, enforcing the law and administering justice in an impartial, objective and nonpartisan manner. For that, we should all be thankful.

Agreed 100%!!  Thanks to Hans A. von Spakovsky for that outstanding assessment of the Sessions Justice Department.  We announced AG Sessions’ resignation yesterday (scroll down 5 articles).  So, this is a proper follow and review.  As we noted, AG Sessions is a southern gentlemen who restored integrity and honor to a department which had been tarnished during the Obama years by AGs Eric Holder and Loretta Lynch.  Hans is a Senior Legal Fellow at The Heritage Foundation.  He is the coauthor of “Who’s Counting? How Fraudsters and Bureaucrats Put Your Vote at Risk” and “Obama’s Enforcer: Eric Holder’s Justice Department.”

Girl Scouts’ lawsuit accuses Boy Scouts of trademark infringement

The Girl Scouts filed a lawsuit Tuesday against the Boy Scouts, accusing the latter group of violating trademarks as it now lets girls into its programs. In the lawsuit, filed in U.S. District Court for the Southern District of New York, the Girl Scouts of the United States of America (GSUSA) accused the Boy Scouts of America (BSA) of trademark infringement, unfair competition and dilution. The Girl Scouts noted in the suit that while the word “scouts” is used in both youth organizations’ trademarks, the two groups are “distinct, with one offering leadership programming developed for and aimed at girls, and the other offering programming developed for and aimed at boys.” “However, that core gender distinction between the two organizations and their use of the term SCOUTS and variations thereof has been altered by BSA’s recent decision to offer all of its services to both boys and girls of all ages for the first time in its long history,” the lawsuit said. “Indeed, even though GSUSA and BSA have congressional charters and separate grants of intellectual property rights that are specific to girls and boys, respectively, BSA is now using its trademarks in a manner that is both new and uniquely damaging to GSUSA, its trademarks and their underlying goodwill.” Following the move to allow girls into its programs, the Boy Scout organization has attempted to swing its “core brand identity” toward the simple designation “scouts.” By the Girl Scouts’ reckoning, the Boy Scout organization has no authority to do, according to the lawsuit. “BSA does not have the right under either federal or New York law to use terms like SCOUTS or SCOUTING by themselves in connection with services offered to girls, or to rebrand itself as ‘the Scouts’ and thereby falsely communicate to the American public that it is now the organization exclusively associated with leadership development services offered under that mark to girls. The change would spur public confusion, tarnish the Girl Scouts’ trademarks, erode the group’s persona and “marginalize” its “movement by causing the public to believe that GSUSA’s extraordinarily successful services are not true or official ‘scouting’ programs,” the lawsuit said. The lawsuit charged that misinformation has spread through parts of the country, including that the two organizations have joined forces and that the Girl Scouts have dissolved. Families have since “mistakenly” registered girls up for the new programs from the Boy Scouts. “BSA regional councils and troops have used the GIRL SCOUTS trademarks in their advertising and marketing materials since BSA’s announcement occurred,” the lawsuit said. “BSA is even using quotations from GSUSA’s founder, Juliette Gordon Low, about the value of GIRL SCOUTS programs to promote BSA’s newly launched services.” And despite the Girl Scouts efforts make the Boy Scouts aware of the “instances of actual confusion,” the lawsuit claimed that “the unauthorized uses of GSUSA’s intellectual property, they keep recurring.” “Only GSUSA has the right to use the GIRL SCOUTS and SCOUTS trademarks with leadership development services for girls,” the lawsuit said. “To the extent BSA wishes to open its programs to girls, it cannot do so using GSUSA’s intellectual property without authorization, in a manner that causes confusion among the public and harms the goodwill of the GIRL SCOUTS trademarks.”

Just when you thought you’d heard it all…  Kudos to the Girl Scouts for slapping the leadership of the Boy Scouts of America (BSA) with this lawsuit.  That’s what they get for making that disastrous decision to allow girls in.  Thank God I was in Boy Scouts decades before it went to hell..

Jarrett: If Rod Rosenstein defies Trump’s order to declassify documents, he should be fired

President Trump has ordered that numerous documents involving the Russia investigation be declassified. The records have long been sought by Congress under lawful subpoenas. Yet, the FBI and Department of Justice have consistently obstructed the release of these materials under the guise of “classified” secrets. This is a convenient alibi all too frequently employed to cover-up wrongdoing and abuse of authority by those we entrust to uphold the law. These days, overzealous government officials automatically designate nearly all matters as national security risks, regardless of whether they truly are. Whenever the FBI orders Chinese take-out, it is labeled “top secret” because… you know… it involves the Chinese. False classification has reached absurd proportions. How do we know? Every time information is declassified we learn that the material should never have been classified to begin with. It was nothing more than a subterfuge. Here are two recent examples: In July, a substantial portion of the wiretap warrant applications presented to the Foreign Intelligence Surveillance Court was declassified. It turns out that no vital sources or methods were revealed in a way that jeopardized either national security or the FBI’s secret investigative techniques. Instead, we learned that much of the application to spy on a Trump campaign associate, Carter Page, was based on an unverified “dossier” that was funded by Hillary Clinton’s campaign and composed by a British spy, Christopher Steele, who was fired by the FBI for lying. This critical information was never fully or candidly disclosed to the FISA judges. They were deceived and defrauded. Regulations clearly state, “only documented and verified information may be used to support FBI applications to the (FISA) court.” In February, the Republican version of the House Intelligence Committee’s memo on the Russian investigation was also declassified. Once it was made public, we discovered that there was nothing therein that justified its suppression at the highest level of classification, “top secret.” Indeed, it should never have been classified at all. The FBI’s real objection was that it contained “material omissions” that made the bureau look bad. That is not a legitimate reason for originating or maintaining classification status..

Indeed..  For more of this article by attorney, and Fox News host, Gregg Jarrett, click on the text above.