Geoff Shepherd has a new Atlantic article, “The Watergate Cover-Up Trial: Justice Denied?” He has found hitherto unrevealed documents that show that the Watergate defendants were right when they charged that their judge, Judge Sirica, was holding illegal secret meetings with the prosecutors to plan legal strategy against them. In new trials they probably would have been convicted anyway, but if this had come out at the time, all of their convictions would have been voided and Prosecutor Jaworski and Judge Sirica disbarred. They would have had new trials, and probably would have been convicted anyway, but the Nixon stance that “The Democrats do illegal stuff too” would have been mightily supported. My comments to the author: Read more…
At the law lunch yesterday we were discussing the special FISA Court which has to approve certain kinds of search warrants for electronic communications, including the famous one which let the NSA see who is making phone calls to who. One topic that came up was court composition. The court is made up of ten or so federal district judges selected by the Chief Justice of the US Supreme Court for 7-year terms, and no judge can serve two terms. The police or NSA go to one judge on it and ask for a warrant. Appeals are made to a special 3-judge appeals court, also appointed by the Chief Justice. Further appeals can be made to the U.S. Supreme Court, I imagine.
Problem 1. Currently almost all of the judges were created judges by Republican presidents, and this looks bad when they are also chosen by a conservative Chief Justice. Read more…
An Amicus Brief for Hobby Lobby v. Sebelius on the Topic of Balancing the Equities for a Preliminary Injunction
I looked over the recent Hobby Lobby en banc decision and thought about it. Everybody seemed to be missing the most important things in the case. Then, yesterday, I realized that the deadline for submissions for the next stage was today (July 3) at 5 p.m. At 2 p.m. I rushed into action. I was able to use my draft amicus for United States v. Marshall as a template, though it’s a different circuit and Hobby Lobby is at District Court right now, for which there are no official rules. Read more…
The American Spectator has a good article on the shockingly bad Omnibus Public Land Management Act of 2009 just passed with little public attention under special parliamentary procedures in Congress that, for example, bypassed the Ag and Judiciary committees. Among other things, it seems it makes fossil collecting on federal lands a crime.
House leaders skipped entirely the jurisdiction of two relevant committees: Agriculture, which has jurisdiction over the U.S. Forest Service, which is actually a part of the Department of Agriculture; and Judiciary, which has jurisdiction over bills that create or make changes to the nation’s federal crimes.
House Agriculture Committee Chairman Collin Peterson, D-Minn., was so upset he became one of four Democrats to vote against the bill of his own leadership. And serious reservations were also expressed by the chairman of the House Judiciary Committee — that notorious Blue Dog (Not!) John Conyers, D-Mich. And none other than the American Civil Liberties Union signed a bipartisan letter protesting the criminal penalties in the bill’s provisions regarding “paleontological resources preservation.”
This section, in the name of protecting fossils on federal lands, makes it a crime to “excavate, remove, damage, or otherwise alter or deface or attempt to excavate, remove, damage, or otherwise alter or deface any paleontological resources located on Federal land” without special permission from the government. Penalties for violations include up to five years imprisonment, and “paleontological resources” are loosely defined as all “fossilized remains…that are of paleontological interest and that provide information about the history of life on earth.”
“Paleontological resources” are defined so broadly and the offenses defined so loosely that many fossil lovers — from scientists to amateur rock collectors — became concerned that it would criminalize innocent error. After all, many common fossil rocks could be “of paleontological interest” and “provide information about the history of life on earth.” Tracie Bennitt, president of the Association of Applied Paleontological Sciences, wrote that “we can visualize now a group of students unknowingly crossing over an invisible line and ending up handcuffed and prosecuted. An honest mistake is just that and should be treated accordingly.”
As word spread of these provisions, this association was later joined in this objection by CEI, NCPPR, and two groups that don’t normally sign on to letters with free-market organizations about lands bills — the National Association of Criminal Defense Lawyers and the ACLU! “We are concerned that the bill creates many new federal crimes using language that is so broad that the provisions could cover innocent human error,” the letter from the diverse coalitions stated. “Above all, we are concerned that a bill containing new federal crimes, fines and imprisonment, and forfeiture provisions may come to the House floor without first being marked up in the House Judiciary Committee.”