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Obstruction of Justice and the Separation of Power

Jun 26, 2017

By Xavier Suárez, Community Newspapers

I was studying law at Harvard when the first “special prosecutor” was appointed. His name was Archibald Cox and he taught Constitutional Law at the law school.

As it happened, he and I were the first two people to arrive at the law school cafeteria, which opened at 7:30 a.m. I saw him sitting by himself, reading the Boston Globe, its headlines referring precisely to Cox’s appointment.

I admired Cox for his brilliance and his rectitude. I also identified with him in a special way when he chose my own Constitutional Law professor, Philip Heymann, as his deputy in the investigation and prosecution of the president’s involvement in the Watergate scandal.

When both professors came back to teach law — after being fired in circumstances similar to the James Comey firing by Donald Trump — Heymann became my advisor in a law school paper on the topic of Congressional Immunities.

That paper was later published as a law review article.

Unfortunately, the eminent law professor fell into the same trap as many prosecutors and lawyers who I have recently heard opining on the possibility that the current president could be charged criminally with “obstruction of justice” for firing the director of the FBI, while said official was supervising an investigation that allegedly deals with the president’s own conduct.

The flaw in their analysis is that they are treating “obstruction of justice” in the criminal law sense of the word.

This approach is tantamount to ignoring the role of the president in our system of government. I heard one former U.S. Attorney say that it would depend greatly on whether Comey felt “threatened” with dismissal if he carried out his functions in the investigation of Russian interference with the U.S. Election.

That idea is laughable, though it would not surprise me if some judge would rule that way, given the erosion of both presidential and congressional authority that has been caused by the special prosecutor episodes in recent American history.

The book to read on that is by Bob Woodward and is titled Shadow. What Woodward describes, beginning with Watergate, and ending with the silly and sorry episode involving a president being impeached for having consensual sex with an intern named Monica Lewinsky.

It is a four-decade history of a Congress unwilling to do its constitutional duty under the impeachment provisions and simultaneously unable to rein in a judiciary that is only too willing to take over the entire field of presidential misconduct.

In the Clinton impeachment “prosecution,” the president was charged with providing “perjurious, false and misleading testimony” in a civil case related to the Lewinski scandal. But that is precisely where prosecutors and courts have failed to understand the exquisitely balanced governmental scheme concocted by the founders of this great democracy.

A correct analysis of that entire embarrassing and costly odyssey would conclude that there is no basis whatsoever to elicit testimony from a sitting president in a civil matter, particularly where the testimony deals with his own conduct in engaging in sexual acts with a consenting adult. That certainly does not qualify as an impeachable offense, which is defined as “treason, bribery or other high crimes and misdemeanors.”

The official immunity of a president should be understood in light of the legislative immunity of members of Congress, under Article I, Section 6 of the Constitution — from which, parenthetically, all official immunities derive.

That provision makes clear that a member of Congress shall not be questioned “in any other place” than the legislature itself. To suggest that presidents can be brought before a grand jury or a judge to be questioned about exercising a proper presidential power (dismissal of an official who serves at his pleasure) is a colossal failure to understand the Constitution, which vests the power of impeachment exclusively on the Congress.

Congress is right to investigate the extent to which a sitting president interferes with an ongoing investigation by his own department of justice. Its powers are unlimited in this area, and its judgment whether to impeach or not is undiminished and inalterable by either a court or an executive. But it should not do so using either procedures or substantive law derived from the canons that apply to common criminals.

Moreover, Congress has its own power of subpoena and its own power to sanction those who disobey by holding them in contempt of Congress. It can hire its own investigators, question under oath whomever it wants — including the president himself — and issue articles of impeachment not only for improper conduct but for obstructing its own investigation.

Congress could theoretically find that the presidential dismissal of an FBI director is an impeachable “high crime or misdemeanor.” But a court cannot, not even the Supreme Court.

Why lawyers and prosecutors cannot understand that is beyond me.

Xavier Suárez is the former mayor of Miami Dade County and current County Commissioner.

Your Editor Adds: It runs in the family. Suárez´s son, Francis, is also a Miami Dade commissioner and candidate for Dade County mayor.

Madrid Transit Officials Tackle ‘El Manspreading’

Jun 26, 2017

By CHRISTINE HAUSER

Passengers on a train in Madrid.

That annoying habit some men have of spreading their legs on buses and trains, encroaching on seats next to them, has become so universal that one word crosses language barriers to describe it.

Now, commuters in Madrid are the latest global denizens to fight “El Manspreading,” that scourge of crowded buses and trains.

This month, public transportation officials in the Spanish capital are telling passengers to, literally, keep their knees together instead of letting them drift apart. In doing so, they joining cities from New York to Seattle, and countries from Japan to Australia, in trying to battle the impulse that, let’s face it, mostly men have perpetuated.

The new campaign in Madrid employs an image of a little red figure with legs splayed, taking up two seats, with a slash mark across it, the universal symbol for “don’t do this.” It is part of a lineup of other common antisocial breaches of commuting etiquette, such as smoking and propping feet on seats, that are discouraged in a small, enclosed space shared by dozens of people.

“El Manspreading is an English term that describes the position of men who open their legs excessively when they sit, occupying the seats next to his, among other situations,” said a statement from the Municipal Transport Company said, when announcing the campaign last week.

“The mission of this new pictographic icon is to be a reminder of the need to maintain civic behavior and to respect the space of everyone on board the bus.”

The campaign was inspired by an online petition promoted by a women’s rights collective, Microrrelatos Feministas, that had garnered more than 13,000 signatures as of Monday.

“All means of transportation have a sticker explaining that we must make room for pregnant women, people with a baby carriage, seniors and people with disabilities,” the petition said. “But there is something else that affects us practically every day we ride on public transport: manspreading.”

“It is not difficult to spot women with their legs closed and very uncomfortable because there is a man next to her who is invading her space,” it said. “It is not a question of bad education, but just as women have been taught to sit with our legs close together (as if we had to hold something between our knees) men have conveyed hierarchy and territoriality, as if the space belonged to them.”

The campaign picked up traction on social media with the hashtag #MadridSinManspreading, or Madrid without manspreading, with people sharing cartoons of the social phenomenon.

With the campaign, Madrid, a city of more than 3 million people, joins others around the world trying to tackle the posture, the bane of many commuters. In 2014, New York City’s Metropolitan Transportation Authority announced a series of public service advertisements to stop once and for all the “lay-it-all-out sitting style that more than a few men see as their inalienable underground right,” according to a Times report on the campaign.

“Dude … Stop the Spread, Please” reads the caption of one of the posters, showing an image of riders forced to stand as a man nearby takes up two seats.

Worldwide campaigns aim to stop it

Cities over the years have promoted campaigns trying to curtail the behavior. In Japan, the Tokyo Metro’s illustrated subway posters suggest manspreading is an etiquette breach. But in Toronto, a petition said banning manspreading was sexist. “This sets a very bad precedent as men opening their legs is something we have to do due to our biology,” it said.

The competition for space is often handled not by the police or transit officials, but on the spot between commuters who speak up to those perceived to be lacking in common courtesy.

Stuart Green, a spokesman for the Toronto Transit Commission, said in a telephone interview that the commission has not detected any trend in official complaints in its customer service logs. “Our bylaws cover general interference in a seat, like putting a bag or feet on the seat,” he said.

Photo

Despite the word “manspreading,” some authorities have made their campaigns less specific about the gender of those perpetrating it. In Pennsylvania, the Southeastern Pennsylvania Transportation Authority started a “Dude It’s Rude” passenger etiquette campaign that aimed to reform customer travel habits in general, including an emphasis on taking up space on only one seat for riders of any gender.

In Seattle, the Sound Transit system tackled the problem not with an image of a man, but a purple octopus with eight long tentacles draped over neighboring seats.

After the M.T.A.’s campaign, the phenomenon prompted discussion in Australia, where frustrated commuters regularly document their experiences with the phenomenon on crowded trains, trams and buses, ABC News in Australia reported. They brought in a body language expert to try to make sense of it all.

“Manspreaders are known to be confident,” said the expert, David Alssema. “Confident people take up more space in a room. If you see a popular person on the couch they are in usually in the middle — arms out, legs spread. They are trying to show their persona of confidence and lot of people see confidence as a winning quality,” he told the station.

Your Editor Claims: Looking for Firsts, Hispanics in Madrid lead the charge. Please help us look for Latino Firsts. Anywhere & Everywhere. Today, “A Lo Ancho.”

Justice Department to Challenge ‘Sanctuary Cities’

Jun 26, 2017

Legal avenues would be aimed at forcing municipalities to aid Trump’s deportation effort

By Laura Meckler, The Wall Street Journal

The Justice Department is quietly exploring new legal theories to take on so-called sanctuary cities in court, working to force them to aid the Trump administration’s aggressive deportation effort, people familiar with the discussion said.

Such a case, if filed, would significantly escalate the Trump administration’s pressure campaign against recalcitrant cities and counties.

The administration has already threatened to cut off federal funding to cities and counties that refuse to facilitate deportations, and it has sought to “shame” jurisdictions that don’t cooperate. If successful, the new court efforts would compel local authorities to assist federal immigration officers whether they want to or not.

Separately, on Friday the Justice Department filed papers in support of the state of Texas’ defense in federal court of one of the toughest anti-illegal immigration laws in the nation. The statute, which is set to take effect in September, prohibits Texas cities and police departments from limiting their cooperation with federal immigration authorities.

Under that law, local Texas law-enforcement officials and sheriffs can face criminal penalties—including jail sentences—if they don’t comply with requests from federal authorities to detain suspected illegal immigrants until they can be transferred to Immigration and Customs Enforcement custody.

Many cities and counties in Texas and across the country have adopted policies of not honoring these requests, called detainers. Several Texas cities, including Houston, Dallas, Austin, San Antonio and El Paso, challenged the law, saying it unconstitutionally infringes on the rights of local governments to police their own residents.

The Justice Department argues the Texas statute doesn’t improperly pre-empt federal law or violate the Constitution. It plans to make those points in oral arguments in federal court in San Antonio Monday.

“The Department of Justice fully supports Texas’ effort and is participating in this lawsuit because of the strong federal interest in facilitating the state and local cooperation that is critical in enforcing our nation’s immigration laws,” Attorney General Jeff Sessions said in a statement.

Next week, Republicans will work to advance a similar goal via legislation. The House plans a vote on a measure that would deny certain federal grants from jurisdictions that don’t honor detainers, among other provisions.

In April, a federal judge in San Francisco ruled that Mr. Trump’s executive order threatening to pull funding from so-called sanctuary cities is likely unconstitutional.

Separately, the Justice Department is developing legal strategies to invalidate sanctuary-city policies across the nation, according to several people familiar with the work under way.

The goal, officials said, would be to win court rulings clarifying local jurisdictions’ requirements under federal law, effectively forcing them to abandon policies of not cooperating with federal officials.

That strategy is complicated by the fact that the Justice Department has already said that detainers are requests of local authorities, not requirements.

But the Justice Department is weighing a range of legal theories.

A senior Justice Department attorney laid out the options under discussion. One possibility is to argue that local policies prohibiting cooperation with ICE wrongly pre-empt federal immigration law. Under another option, the department would argue that local authorities are discriminating against ICE because they are willing to honor detainers issued by other federal agencies such as the Federal Bureau of Investigation or the Drug Enforcement Administration. A third theory would argue that local governments are obstructing the federal government’s ability to do its job.

The Justice Department attorney said a straightforward case arguing that local governments are required to honor detainers would likely succeed in front of some federal judges but not others. The official said the department is considering which circuits present the friendliest terrain. He added that as President Donald Trump puts more people onto the federal bench, the department’s chances may improve in certain circuits.

Still, the official said, the Justice Department wants to ensure that any case its lawyers file could pass muster with the Supreme Court.

A more limited option, the official said, would be to argue that a federal statute requiring open communication between local and federal officials, known as Section 1373, requires that local officials inform ICE when a suspected illegal immigrant is about to be released. Alternatively, the official said, the Justice Department could file a suit aimed at forcing local jails to let ICE officers into their facilities to investigate whether foreign-born suspects are citizens.

Immigrant activists are skeptical that these suits would succeed. Greg Chen, director of government relations for the American Immigration Lawyers Association, says Section 1373 is narrowly written merely to bar localities from prohibiting their personnel from sharing information about citizenship or immigration status with the federal authorities.

“The language is specific and limited,” he said.

Mr. Chen said he would need to know more about other legal theories under consideration to comment on how those suits might be defended. But he said most places that decline to honor detainers do so because of court decisions that have found localities can be held liable for wrongly detaining someone without probable cause to believe the person should be kept.

In addition, he said, many communities have concluded that they don’t want their law-enforcement officials seen as agents of federal immigration law, for fear that crime victims and witnesses would not come forward.

“By trying to force localities to honor these detainers, the federal government is putting localities between a rock and a hard place,” he said.

In April, a federal judge in San Francisco ruled that Mr. Trump’s executive order threatening to pull funding from so-called sanctuary cities is likely unconstitutional.

Your Editor Wonders: Is Justice confusing la Magnesia con la Gimnasia?

Hispanics Tend to Look on the Sunny Side of Life

Jun 26, 2017

By Esther J. Cepeda / Alburquerque Journal

It is often said that Hispanics suffer from fatalism - the belief that whatever happens to them is inevitable. But far less often acknowledged is that Latinos also tend to look on the sunny side of life.

Over the past decade, various national surveys have shown that U.S. Latinos have a positive view of their lives and the future, surpassing whites and African-Americans in their belief that better times are ahead.

One researcher at the University of Illinois at Urbana-Champaign even found a statistical connection between this positive outlook and better cardiovascular health outcomes for Latinos.

Regarding money, last year a study by the Pew Research Center’s Hispanic Trends project found that Hispanics were likelier than the general public to expect their family’s financial situation to improve in the next year. Plus, nearly three-quarters said they expected their children to be financially better off than themselves in their lifetime.

It’s much the same story when it comes to education.

According to a recent nationwide survey on the attitudes and aspirations of black and Hispanic parents conducted by the Leadership Conference Education Fund, both groups of parents are worried about funding disparities in schools that are majority-minority. But Latinos have slightly more positive views about how public education is serving their children.

Though a majority of Hispanic families believe that their schools get less money than schools in white communities, slightly fewer reported believing this than last year (57 percent in 2017 vs. 61 percent in 2016).

As can be expected from the anti-immigrant and anti-Hispanic sentiments that have run rampant lately, another big difference this year is that many more Hispanics believe that racism and racial bias affect school quality (28 percent in 2017 vs. 20 percent in 2016, but still fewer than black respondents). Still, slightly fewer Hispanics reported concerns with lack of access to resources and technology, low teacher quality and lack of parental involvement than last year.

Even taking into account higher concerns over racism - and worries about poor school facilities and language issues that have not changed over time - a stunning three-quarters of Latinos believe that U.S. public schools are doing a good job of preparing Latino students for success in the future, a 10-point increase from last year.

A slim majority (52 percent) now believe that the education Latino students receive in the U.S. is as good as the education white students get. One caveat is that the Hispanic parents and family members who were likeliest to say this also reported not having attended school in the United States, but it’s still remarkable.

Considering how many reports there have been of immigrant and minority students who have been harassed and bullied in the wake of President Trump’s election, these surveys, which were conducted in early March, are nothing if not a testament to the resilience and sense of hope that Latino families have about their kids’ well-being at school.

As was the case last year, Latino parents reported a thirst for high-performing teachers, rigorous curriculums, and high standards and expectations for their students. In fact, even more Latino parents said that they wanted higher standards for their kids than last year.

And they want to see the proof: Just like last year, Latino families ranked “less reliance on standardized testing” dead last on their list of characteristics of a good school, with slightly fewer parents calling for less testing than in 2016.

These numbers highlight the fact that Hispanics want much the same things that other families want for their children: good teachers, decent curricula and high expectations.

And they do show notable cultural differences compared to what observers of the education system are likely to say matters most - in other words, Hispanic families aren’t as worried about diversity, class size or disciplinary issues as education wonks might think.

Lastly, the attitudes this survey describes illustrate that Hispanic students and their families should not - as they are typically portrayed in education reporting - be seen as victims of public schooling.

On the contrary, Hispanic families are knowledgeable about what’s going on in their kids’ schools, have well-formed views about what level of rigor and discipline can help their kids succeed in the world, and are generally positive about their potential in the existing system.

The question is: Will policymakers tune into these strengths or continue to rely on a misguided belief that Latino families aren’t as engaged in their kids’ education as others?

Your Editor Believes: Optimism can be a qualifier

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