Did the US Court of Appeals Get the Michael Flynn Decision Correct?

On June 24, 2020, a three judge panel of the U.S. Court of Appeals for the D.C. Circuit issued an order to the trial court to dismiss the charges of lying to the FBI against former National Security Advisor Michael Flynn.  The panel was split, two judges to one, with Trump appointee, Neomi Rao, delivering the opinion of the court.

Flynn has confessed to lying to the FBI about whether he had spoken with Russian Ambassador Segei Kislyak about official U.S. sanctions against Russia, imposed by the Obama Administration because of Russia’s interference with the 2016 presidential election, before Flynn had been appointed as the National Security Advisor.  This was a violation of the Logan Act, which makes it illegal for a private citizen to negotiate with a foreign power that has a claim against the United States.  You may recall that Flynn had the shortest term as National Security Advisor ever, as he was fired only twenty-two days into the Trump Administration.  He was fired for lying about this same subject matter, whether he spoke to Ambassador Kislyak about the sanctions before assuming office, to both Vice President Michael Pence and Chief of Staff Reince Priebus.  Legally speaking, was the Court of Appeals correct?

There is obviously a lot of context behind the Flynn prosecution.  I explain all of that context in another video.  I will have a link to that below.

This confession was obtained by Special Counsel Robert Mueller and his team as part of plea bargain.  Flynn would admit to lying to the FBI, and the Special Prosecutor would not bring further charges against Flynn and his son in connection with their lobbying work for arms of the Russian Government, and for the benefit of President Erdogan of Turkey.

Flynn confessed to his lie to the FBI in open court, and was awaiting sentencing.

Meanwhile, Trump was acquitted by the Senate following his impeachment by the House of representatives over his attempt to solicit Ukrainian interference in the 2020 presidential election.  Emboldened by his acquittal, Trump went on a rampage of vindictiveness, firing U.S. officials who had provided testimony before the House, firing the Inspector General who referred the matter to Congress, and seeking the dismissal of charges against the Russian defendants who were indicted by Robert Mueller and his team of investigators.  Indeed, Trump concerned over his own presidential legitimacy, enlisted the help of his Attorney General Bill Barr to paint the Mueller Investigation and resulting report as illegitimate. 

To that end, on April 30, 2020, Donald Trump tweeted his support of Michael Flynn, saying that what happened to him should not happen to any U.S. citizen again.  On week later, on May 7^th, the Justice Department filed a motion to dismiss the charges against Michael Flynn, pursuant to Federal Rule of Criminal Procedure 48(a), and signed by interim United States Attorney for the District of Columbia, Michael Shae.  In response, the lead prosecutor in the case, Brandon L. Van Grack, withdrew from the case.  In fact, none of the attorneys who had been involved in the Flynn prosecution signed on to Shea's motion.

The trial judge, U.S. District Judge Emmet G. Sullivan, chose not to grant the motion to dismiss right away, instead setting a schedule to allow amicus curiae briefs, and appointing U.S. District Judge John Gleeson to present arguments against the motion to dismiss.  Flynn’s attorneys filed an emergency motion for a writ of mandamus with the D.C. Circuit, who, of course, issued its order to Judge Sullivan to dismiss the case.

At issue is the text of Federal Rule 48(a), which reads:  “The Attorney General or the United States attorney may by leave of court file a dismissal of an indictment, information or complaint and the prosecution shall thereupon terminate.”  The key language being, “by leave of the court.”  What exactly does this mean?  Does it give Judge Sullivan the authority look behind the Government’s motion and determine its motivations?

Judge Rao answered that it didn’t.  Quoting United States v Fokker Servs,, 818 F.3d 733 (D.C. Cir. 2016), Judge Rao claimed that the decision of whether to dismiss charges fell squarely within the discretion of the U.S. Attorney.  Judge Rao further claimed that the Supreme Court declined to construe the “leave of court” language “to confer any substantial role for courts in the determination  whether to dismiss charges.”  According to Rao, the trial court’s authority was limited to extraordinary circumstances, and that the rule’s principal objective was to prevent prosecutorial harassment.  That is, the situation where a prosecutor would file charges, dismiss them, and then refile them just to harass a defendant.

But was Judge Rao’s reasoning correct?

Well, first, let’s take a look at the case she cites to support her position.  The Fokker case involved a foreign company that had violated U.S. export licensing laws to export certain technology to Iran, Sudan and Myanmar.  The defendant company entered into an agreement with the government, which involved deferring prosecution over a period of time, while the company adhered to a set of conditions.  For the agreement to take effect, the court had to grant an exception to the Speedy Trial Act.  The trial court refused, expressing concern that the Government had chosen to prosecute only the company, and not the company’s executives who made the decisions to violate the exporting law.  The appellate court simply concluded that it wasn’t the trial court’s job to decide who the Government should prosecute.

Another case cited by Judge Rao was Newman v. United States, 382 F.2d 479, 127 U.S.App.D.C. 263 (D.C. Cir. 1967).  This case involved two defendants charged with housebreaking and petty larceny.  The Government agreed to a plea bargain with one defendant that permitted him to plead guilty to a lesser misdemeanor charge.  The second defendant objected that he did not get the same deal.  By failing to give him the same deal, the second defendant argued that he was denied due process because he had equal standing as the first defendant.  That is, if you chose not to prosecute my friend, who was involved in the same crime, you should not be able to prosecute me.  The court rejected the argument, saying that selective prosecution alone was not sufficient to show a constitution violation.

The problem with both of these cases is that neither involved the application of Rule 48(a).  That is, neither case involved a Government’s motion to dismiss charges.  In both cases, the party at issue was being prosecuted, and there was merely criticism that some other party wasn’t being prosecuted for the same thing.

Well, specifically in reference to Rule 48(a), Judge Rao cited a Supreme Court case of Rinaldi  v.  United  States,  434  U.S.  22 (1977).  Citing footnote fifteen of that case, she stated, “More specifically, “[t]he principal object of the ‘leave of court’ requirement  is...to  protect  a  defendant against  prosecutorial  harassment ...when  the  Government moves   to   dismiss   an   indictment   over   the   defendant’s objection.”

So, what does Rinaldo say?  Does that case stand for the proposition that the “leave of court” language was meant only to prevent prosecutorial harassment?

Well, Rinaldi involved a defendant who was involved in a plot to rob safety deposit boxes.  His conduct could have been prosecuted under both Florida state law, and federal law.  Florida prosecuted and convicted.  The Federal Government then prosecuted, but it ended in a mistrial.  During the retrial, the judge asked the prosecutor whether he had authority to move forward with the case, because the U.S. Attorney’s Office had a policy that when the same conduct could be prosecuted under state and federal law, if the state obtained a conviction, the Federal Government would refrain from prosecution.  The Assistant U.S. Attorney said he had such authority.  The trial went forward and the defendant was convicted.

After conviction, the defendant’s attorney convinced the U.S. Attorney’s Office to drop the charges, based on the policy of not prosecuting when the state had already obtained a conviction.  The Government presented a motion to dismiss to the trial court.  The trial court denied the motion citing two reasons: (1) that the motion came after the trial was completed; and (2) that the trial attorney showed bad faith in prosecuting the case in the first place.

The appellate court upheld the denial of the motion, but only based on the bad faith of the trial attorney.  The Supreme Court reversed, saying that the issue was not the bad faith in prosecuting the case, but whether there was bad faith in seeking the dismissal of the charges.

And with that context, here’s the full text of the footnote in the Supreme Court’s decision in Rinaldi:

“The words "leave of court" were inserted in Rule 48(a) without explanation. While they obviously vest some discretion in the court, the circumstances in which that discretion may properly be exercised have not been delineated by this Court. The principal object of the "leave of court" requirement is apparently to protect a defendant against prosecutorial harassment, e. g., charging, dismissing, and recharging, when the Government moves to dismiss an indictment over the defendant's objection. . . . But the Rule has also been held to permit the court to deny a Government dismissal motion to which the defendant has consented if the motion is prompted by considerations clearly contrary to the public interest. . . .  It is unnecessary to decide whether the court has discretion under these circumstances, since, even assuming it does, the result in this case remains the same.”

The full text of that footnote clearly leaves open the possibility that some other reason, which is clearly contrary to the public interest, may prompt a court to deny a Government motion to dismiss charges.  And to support that proposition, the Supreme Court cited a Fifth Circuit case, United States v. Cowan, 524 F.2d 504 (5^th Cir. 1975).  In Cowan, the defendant faced  seven count indictment, six of which involved misapplication of federal funds of a federally insured savings and loan.  The charges were brought in the U.S. District for North Texas.  Meanwhile, that same defendant was charged with bribing a public official in connection with the Watergate investigation.  The Watergate Special Prosecutor entered into a plea agreement with the defendant.  If the defendant helped the Special Prosecutor, and pleaded guilty to bribing a public official, the U.S. Government would drop the charges in the Texas court.  The defendant agreed, and the U.S. Attorney filed a motion to dismiss the charges in the U.S. District Court in Texas.

The trial judge, however, had a problem with that, and denied the motion.  The U.S. Attorney filed an intent not to prosecute, and the trial judge appointed a Special Prosecutor for these charges.

The U.S. Court of Appeals for the Fifth Circuit considered the extent of prosecutorial discretion, and Rule 48(a)’s requirement to seek “leave of the court.”  The Fifth Circuit noted that the Executive Branch has absolute discretion on whether to bring charges.  But on whether to dismiss charges is another matter.  Looking at the history of Rule 48(a), the court noted that in the common law, the prosecutor has absolute discretion to decide when to dismiss charges.  But, thirty states had abrogated that rule, requiring either a court order or leave of the court to dismiss charges once brought.  State law provided that the court had the power to deny a motion to dismiss to uphold the “public interest.”

With this background The American Law Institute issued its Model Code of Criminal Procedure.  This is just an attempt to put together the best practices of the states to suggest how the states could reform and harmonize their criminal procedure law.  At any rate, in the Model Code, The American Law Institute codified the state statutory law that gave courts wide discretion to deny leave to terminate a prosecution that had already been started.

So, the Supreme Court appointed a committee to consider changes to the Federal Rules of Criminal Procedure.  That committee suggested a change to the rules, which stated, "The Attorney General or the United States Attorney may file a dismissal of the indictment or information with a statement of the reasons therefor and the prosecution shall thereupon terminate."  That is, the Executive Branch still had broad discretion to decide when to terminate charges, but they would have to state their reasons.  Well, the Supreme Court read this proposal, and asked the committee, if the Executive Branch should have this much discretion.  In submitting the next set of proposals, the committee submitted the same rule, without change.  In adopting the Federal Rules of Criminal Procedure, the Supreme Court rejected the committee’s proposal, replacing the phrase “with a statement of the reasons thereof” with “leave of the court.”  The Court offered no explanation for this change.

Nonetheless, the Fifth Circuit concluded that this demonstrated a clear intent on the part of the Supreme Court to give the trial court some role in determining whether a dismissal of criminal charges was appropriate.

To this end, the Fifth Circuit agreed that our Constitution is based on a separation of powers.  That is, Congress makes the laws, the Executive Branch, headed by the President, enforces the laws, and the courts hear cases to determine if a particular defendant has violated the law.  But, in order to protect against the abuse of power, the three branches are not absolutely separate, air-tight compartments.  Rather, we have a web of checks and balances on each branch’s powers that was designed to prevent abuse of power.  This is not to say that the rule gives courts unfettered ability to usurp or interfere with Executive’s good faith exercise of power to ensure that the laws are faithfully executed.  But it is a check on power, and leave can be withheld if the dismissal of charges is clearly contrary to manifest public interest.

Now, in the facts of the Cowan case, the dismissal was not against public interest.  The plea bargain was not a sham or deception, and helped further another investigation.

When you put all of this together, you come to one inescapable conclusion.  Judge Rao was mistaken.  The “leave of court” language is not limited to preventing a prosecutor from harassing a defendant by dismissing a charge, and then refiling the same charge.  Instead, the rule gives the trial court the discretion to deny the motion, in extraordinary circumstances, where the dismissal of the charges would go against the manifest public interest.  And in determining the manifest public interest, it is appropriate for a trial court to consider whether the motion for dismissal was the result of bad faith.

In this case, the issue is the corruption of the Trump Administration.  Is Trump manipulating his Justice Department, first to discredit the Mueller Report, which clearly found that Russia interfered in the 2016 presidential election, and outlined facts that support a conclusion that Donald Trump himself committed obstruction of justice with respect to the Mueller Investigation.  While the House may not have impeached him on this point, this does not mean that once Trump leaves office that the U.S. Attorney is forbidden from bringing obstruction of justice charges against Trump.  So, Trump needs to discredit the investigation.

Part of that is the argument that Attorney General Bill Barr had made, which is that the FBI investigation against Michael Flynn for violation of the Logan Act itself lacked legal authority.  Thus, Trump is using his pliant Attorney General both to ensure that his friend, Michael Flynn, gets favorable treatment despite confessing to lying to the FBI, and that the steps which led to the Mueller Investigation are discredited.  But simply, the motion to dismiss the charges against Flynn are the result of bad faith.

So what now?  The attorney representing Judge Sullivan filed a motion for rehearing en banc, meaning a hearing before all eleven judges of the D.C. Circuit, instead of just a panel of three.  Given that there is so little case law interpreting Rule 48(a), and the importance of this case, I would think it would be likely that the D.C. Circuit would grant a motion for rehearing en banc.  But even then, if Judge Rao’s decision stands, Judge Sullivan’s attorney could file for a writ of certiorari with the U.S. Supreme Court.  That is, he could ask the U.S. Supreme Court to hear the case.  Once again, given the dearth of precedent on the issue, what appear to be clear error by Judge Rao, the fact that the Supreme Court is the overseer of the Federal Rules of Criminal Procedure, and that importance of this case, it seems like a very good possibility that the Supreme Court would want to hear this case and offer its guidance.

By: William J. Kovatch, Jr.

For Background information on  Michael Flynn, please see my YouTube Video, The Republican Party and Low Information Voters: Russia, Michael Flynn and Trump's Desire for Legitimacy.

For the YouTube video version of this article, click here:  https://youtu.be/_ZFJ7WLlno0

References

 
Rules


Federal Rule of Criminal Procedure 48.


Cases


In re: Michael T. Flynn, Crt No. 20-5143 (D.C. Cir. June 24, 2020).

Newman v. United States, 382 F.2d 479, 127 U.S.App.D.C. 263 (D.C. Cir. 1967).

Rinaldi  v.  United  States,  434  U.S.  22 (1977).

United States v. Cowan, 524 F.2d 504 (5^th Cir. 1975).



United States v Fokker Servs,,818 F.3d 733 (D.C. Cir. 2016).


Articles


Framptom, Thomas Ward, "Why Do Rule 48(a) Dismissals Require 'Leave of Court,'" Stanford Law Review (Volume 73, June 2020).

Ramifications of White House Green Card Ban

On April 22, 2020, President Donald Trump signed a presidential proclamation suspending the entry of aliens who are outside of the United States, and who either do not currently have a valid immigrant visa, or who do not have an official travel document permitting that alien to travel to the United States.  An immigrant visa is one that permits an alien to live in the United States permanently.  Such immigrants are legal permanent residents, or, colloquially, are said to hold a green card.  The proclamation is effective April 23, 2020 at 11:59pm, eastern daylight savings time.

President issued this proclamation in response to the COVID-19 crisis.  As of April 21, 2020, the Centers for Disease Control and Prevention state that there are currently 802,583 cases of COVID-19 in the United States.  The disease has caused 44,575 U.S. deaths.

To slow the spread of the disease, the vast majority of states have issued stay-at-home orders, closing non-essential businesses.  As a result, over 22 million people have filed for unemployment benefits.  Trump has expressed his desire to begin re-opening the country, and putting people back to work.  He claims that the proclamation banning new green cards is necessary to protect the jobs of those Americans currently out of work.

On one hand, the White House has tailored this proclamation somewhat narrowly.  The green card ban does not affect doctors, nurses, healthcare workers and medical researchers working on combatting the spread of COVID-19, or their spouses and children under age twenty-one.  Certain family-based immigrants also escape Trump's green card ban.  They include: (1) spouses of U.S. citizens; (2) children, under age 21, of U.S. citizens; (3) prospective adoptees of U.S. citizens; (4) members of the U.S. Armed Forces; and (5) spouses and children of U.S. Armed Forces members.

Other immigrants not affected by the ban are: (1) foreign investors (these are foreigners who have either invested $1 million in the United States and employ ten people, or invested $500,000 in a distressed area and employ five people); (2) Iraqi and Afghani translators; (3) Iraqis and Afghanis who provided special services to the U.S. Government; (4) aliens whose entry would be in the national interest of the United States.

The ban does not affect those who already possess an immigrant visa, or those who are in the United States and applying for an immigrant visa.  Thus, an H-1B specialty worker, that is, an alien worker with a temporary employment visa whose job requires a bachelor's degree at a minimum, may still apply for an immigrant visa. There is a question, however, of whether such aliens may leave the United States, have their green card issued at a consulate in a foreign country and return to the United States.  If legally possible, such aliens may want to try to adjust to status while still present in the United States.

The ban also does not affect those currently in removal proceedings in the United States, or people who are seeking asylum, withholding of removal, or protection pursuant to the Convention Against Torture.  Moreover, law enforcement agencies may still request that individuals necessary for their objectives be permitted to enter the United States.

This is due to the limits to the president's immigration power.  In 2018, the Supreme Court held, in the case of Trump v. Hawaii, that the president has broad powers to suspend the entry of aliens who are trying to come into the United States.  With respect to aliens already present in the United States, Article I of the U.S. Constitution gives Congress the power to regulate immigration and nationality.

In the introduction to the proclamation, Trump notes that while the U.S. Department of Labor  is responsible for issuing labor certifications, such certifications take time to adjudicate, and therefore do not reflect the current U.S. labor market.  A labor certification is a determination that there are no U.S. workers who are ready, willing and able to accept a specific job with a U.S. employer.  U.S. employers must obtain a labor certification before petitioning for an alien worker to receive an employment-based visa.  The employer is required to demonstrate, by engaging in certain recruitment methods, that it is not able to fill a needed position with a U.S. worker.  It is a challenging and rigorous process, that can take over a year for the Labor Department to grant.

The proclamation is set to expire sixty days after the effective date.  However, it may be extended as necessary.

The President has further called on the Secretary of Labor and the Secretary of Homeland Security, in consultation with the Secretary of State, other measures that may be appropriate to stimulate the U.S. economy, ensuring that U.S. workers get priority.  This may mean that while temporary employment visas are unaffected by this proclamation, such visas in the future may be subject to restriction.

By: William J. Kovatch, Jr.

References

Proclamation Suspending Entry of Immigrants Who May Present a Risk to the U.S. Labor Market During the Economic Recovery Following the COVID-19 Outbreak (April 22, 2020).

Trump v. Hawaii, Slip Op. No. 17-965 (June 26, 2018).

Centers for Disease Control and Prevention, "Coronavirus Disease 2019."

Chapman, Steve, "Trump's immigration ban won't help fight COVID-19," Chicago Tribune (April 22, 2020).

Chalfant, Morgan and Bernal, Rafael, "Trump signs executive order limiting immigration," The Hill (April 22, 2020).

Kapur, Shahil, "Trump Halts Immigration for 60 Days.  Here's What the President's Order Means," NBC News (April 22, 2020).

Perper, Rosie, "Trumps signs executive order suspending immigration into the U.S. for 60 days," Business Insider (April 22, 2020).

Williams, Pete, "Does Trump have the authority to halt immigration?", NBC News (April 21, 2020).

It's Not Going to Be Popular to Say This Around Some Circles, But the Supreme Court Did the Right Thing in Striking Down the U.S. District Court's Attempt to Alter Wisconsin's Voting Framework

I don't think it's any secret that I don't like Donald Trump.  He's got an authoritarian streak, he can't stand criticism, and he does try to grab power he doesn't have.  But, I'm not going to join those who have a knee-jerk reaction every time some branch of the U.S. Government takes an action or makes a decision that has the effect of decreasing the opportunities to cast or count votes and claim that it's part of some vast right-wing conspiracy to suppress the vote and keep Trump in power.  There are times when lower courts, in an effort to do what the trial judge subjectively thinks is the morally right, overstep their authority.  When that happens, the Supreme Court is within its authority to remind those lower courts that they need to work within the framework of the law and the Constitution.  Among those constitutional principles that is important to uphold are the separation of powers and federalism.  This is why the Supreme Court's decision on Monday, April 6th,addressing the election in the State of Wisconsin, although poorly written, was the right thing to do.

The Supreme Court's decision did not elaborate on the facts too well.  For that, I had to go back to the decision of the U.S. District Court for the Western District of Wisconsin dated April 2, 2020.  That decision addresses three consolidated cases, in all of which the plaintiffs challenge Wisconsin's election framework, within the context of the current COVID-19 crisis.

The entire world is the middle of a pandemic, from a virus which heretofore had not been identified, and had not infected humans.  That is SARS-CoV2, which many have been identifying by using the shorthand, the coronavirus.  It is actually just one, and indeed the newest, of many different types of coronaviruses, which, unfortunately, is confusing some people.  The virus causes the disease that the World Health Organization calls COVID-19.  COIVD-19 appears to cause mild symptoms in the vast majority of people.  But in some people, it can cause serious respiratory issues, and death.  There is some dispute over the death rate, but it appears to be between 1% and 3%, which is a much higher death rate than the flu.  In addition, the virus appears to be more contagious than the flu.  Because humans have not developed natural immunity to this virus yet, and because we currently do not have a vaccine against the virus, it has swept across the globe.  With the first case in humans being identified in December of 2019, as of the time of writing, over 1.2 million people have been infected worldwide.  Over 72,000 people have died from COVID-19.

COVID-19 has the potential to overwhelm the medical resources throughout the world.  The recommendation of medical professionals has been to isolate those who have the virus, quarantine those who have come in contact with those who have the virus, and generally practice social distancing and safe personal hygiene for everyone else.  Governors across the United States have issued stay-at-home orders, to prevent people from congregating and giving the virus more opportunities to spread.  Surfaces are being cleaned more often, and people are being advised to wash their hands often, to wear masks in public and to try not to touch their faces.  Most importantly, medical professionals have advised that we avoid large public gatherings.

However, this is an election year in the United States.  In November, Americans will go to the polls to either to choose a new president, or re-elect President Trump.  This spring, we are in the midst of primary season.  That is, the separate states and territories are holding primaries or caucuses to nominate the Democratic candidate for president.  In some states, they are holding elections for local and state offices at the same time as the primaries.  The COVID-19 crisis has caused numerous states who had elections scheduled for April to postpone them, or to expand the opportunity for mail-in absentee ballots, due to the risk of spreading the virus.  Wisconsin is not one of those states.

Wisconsin scheduled its election to be held on April 7, 2020 long before the current crisis. More well over a month, the Governor has been calling on the Wisconsin Legislature to postpone the election, or make it easier for people to cast mail-in absentee ballots.  The Legislature has not responded.  Meanwhile, because so many election workers are over the age of sixty, a category who is at a high risk of developing the severe symptoms of COVID-19, the rise in absentee ballots as well as opening the polls for the regular in-person voting, threatened to overwhelm Wisconsin election officials.  Many voters requested absentee ballots in the last month leading up to Election Day.  It was almost certain that thousands of applicants would not receive their absentee ballots before Election Day.

This is the situation where the U.S. District Court found itself.  Three different lawsuit lawsuits were filed to do something about the Wisconsin election, such as extending deadlines, and waiving witness requirements for mail-in ballots.  Under Wisconsin election law, ballots had to be received by April 7th in order to be counted.  Wisconsin law also gave the municipal canvassing boards until April 13th to certify the vote count to the counties.  The District Court, in a decision entitled Democratic National Committee, et al., v. Marge Bastelmann, et. al., issued a preliminary injunction which, among other things, permitted absentee ballots received by April 13th to be counted, regardless of when the ballots were postmarked.  A party submitted a request to stay the preliminary injunction (i.e. to prevent the injunction from taking effect) to Supreme Court Justice Brett Kavanaugh (submitting such a request to a Justice on the Supreme Court is normal Court procedure), who in turn referred the matter to the full Court.  In a decision that pitted the five conservative members of the Court against the four liberal members, the majority issued a per curiam opinion, meaning the five member majority spoke as one, granting the stay of the preliminary injunction.  The sole issue for the Court was whether the District Court overstepped its authority by permitting ballots postmarked after April 7th to be counted so long as they were received by April 13th.  That is, the Supreme Court permitted Wisconsin to continue to count ballots received by April 13th, so long as they were postmarked by Election Day, April 7th.

Many liberal pundits saw the Supreme Court's action as one of intentional voter suppression, aimed specifically at helping the Republican Party, and in particular Donald Trump, stay in power once the November presidential and congressional elections come around.

I read the Supreme Court's decision much differently.

Let me be clear, I am all in favor of taking action now to prepare for the November elections, and the possibility that the current crisis may still be around.  I, too, have some fear that Trump and the Republican Party may take some action that may negatively affect the elections.  After all, not only did Russia interfere in his favor in 2016, Trump has already been impeached for seeking Ukrainian interference in the 2020 election.  The only thing that saved him from removal was the fact that the Republicans control the Senate, and Senate Majority Leader Mitch McConnell made sure that the Senate trial was a farce with no witnesses being called at all.  I would love it if state legislatures acted now to address the November elections to expand the availability of early voting and mail-in voting just in case the coronavirus still has us sheltering in our homes at that time.

But let's be clear on some things.  Trump has no authority to do anything directly to change, postpone or cancel the November elections.  There is nothing in the Constitution, or any of the numerous federal statutes addressing the president's emergency powers that grant the president such authority.  How the November elections are to be run is a matter for the people of the several states, through their legislatures, to address.  Many Trump opponents fear he will nonetheless attempt to use the declaration of a national emergency to seize a power that is otherwise not granted to the presidency.

Yet, as I read the U.S. District Court decision, I noticed that the very thing that Trump's critics fear that he will do in the abstract, grab power that he doesn't have, is exactly what the District Court did.  In its opinion, the District Court essentially states, "There is a crisis out there that nobody is doing anything about, so I'm going to create a solution, whole cloth, despite their being no statute or constitutional provision giving me the authority to do so."  It is quite amazingly.  The decision is bereft of any citation to law or constitutional provision giving it the authority to interfere and fundamentally alter Wisconsin's election framework.  The District just says, "Voting is a fundamental right, so here's what you need to do."  That is, the District Court just assumed that it had the authority to make its own deadlines and impose them upon Wisconsin's state government as a whole.  Put another way, the U.S. District Court thought that it could act as if it were a legislature.

Again, if Trump had done this, those very same liberal pundits complaining about the Supreme Court would be up in arms over Trump's action.

Our Constitution engages in a dispersion of powers among not only the three branches of government, but also between the federal government and the government of the several states.  This is known as separation of powers when it refers to the three branches of the federal government, and federalism when it refers to the division of powers between the federal government and the governments of the several states.  They are the fundamental principles upon which our system of government is created, in order to avoid any one part of the government becoming too powerful and acting tyrannically.  In this regard, a court that oversteps its authority can be just as tyrannical as an authoritative executive.  The Supreme Court was absolutely within in prerogative to slap down a decision by a U.S. District Court that overstepped its power.

The lesson is two-fold.  First, all branches of government need to respect the limits placed on their authority by the Constitution.  Second, the state legislatures, as the law-making branch of government in their respective states, need to address the November elections now, before it becomes a crisis where well-intentioned courts will feel obligated to step in, regardless of the limits on judicial power.

By:  William J. Kovatch, Jr.

References

For general facts about the virus, I referred to the World Health Organization's website.

Information can also be found on the Centers for Disease Control's website.

The U.S. Supreme Court Decision can be found here:  Republican National Committee, et al., v. Democratic National Committee, et al., Slip Op. Crt. No. 19A1016 (U.S. Supreme Court April 6, 2020).

The U.S. District Court decision can be found here:  Democratic National Committee, et al., v. Marge Bostelmann, et al., Slip Op. Crt. No. 20-cv-249-wmc (W.D. Wis. April 2, 2020).

Johnson, Jake, "'One of the Most Brazen Acts of Voter Suppression in Modern Times,' as US Supreme Court Blocks Absentee Ballot Extension in Wisconsin," Common Dreams (April 7, 2020).

Liptak, Adam, "Supreme Court Blocks Extended Voting in Wisconsin," The New York Times (April 6, 2020).

Litman, Leah, "The Supreme Court's Wisconsin Decision Is a Terrible Sign for November," The Atlantic (April 7, 2020).

Perrett, Connor, "'Voter suppression on steroids': Wisconsin's decision tohold the state's in-person primary amid the COVID-19 pandemic will suppressvoters, advocates warn," Business Insider (April 7, 2020).

Stern, Mark Joseph, "The Supreme Court's Wisconsin Election Decision is 2020's Bush v. Gore," Slate (April 7, 2020).

Celebrities, Big Corporations, and Copyright Strikes: Are YouTube Functions Being Abused to Silence Critics and Competitors

I'm not a copyright lawyer.  I don't play one on TV.  I know a little about copyright law from my law schools days.  So, definitely don't take anything I write here as legal advice. 

Dr. Drew Pinsky appears to have joined the list of celebrities and organizations who have abused a system created by YouTube, and other social media sites, supposedly to fight copyright infringement, in order to shut down criticism.  Pinsky, a practicing M.D. and Diplomat of the American Board of Addiction Medicine and the American Board of Internal Medicine, cultivated a celebrity persona over the decades with his appearances on various radio and television shows discussing medical issues.  He was recorded recently stating that from the beginning, he considered the coronavirus, SARS-CoV2 which causes the disease COVID-19, could be worse than the flu.  However, a YouTuber called DrDoops published a montage of clips dating back to February 4, 2020, where Dr. Pinsky claimed that the virus was "way less virulent than the flu."  The video on YouTube lasted a little less than five minutes.  A Twitter user, named, "Flatten the curve, not the webrant," going by the Twitter handle @web_rant, posted a two-minute version of the video on April 5, 2020.  YouTube had pulled the video off of its platform, citing copyright violations.  On Twitter, Dr. Drew responded to a user who had retweeted the video, stating, "Infringing copywrite [sic] laws is a crime.  Hang onto your retweets.  Or erase to be safe."  Some have interpreted Dr. Drew's response to be a veiled threat to seek criminal legal action against those who spread the video.

(To YouTube's credit, the company reinstated the video on April 7, 2020.)

YouTube raises revenue by selling ads to run before and during the videos posted to its site.  YouTube shares this revenue with users who obtain a certain amount of subscribers, and induce other users to view their videos for a minimum number of minutes.  However, users have, at times, incorporated materials copyrighted by others in their videos.  Copyright holders argue that it is unfair, and indeed illegal, for YouTube users to profit from copyrighted materials that the users do not own.  YouTube has responded with a method to report when a user has posted a video that contains copyrighted material.  The purported copyright holder fills out a copyright removal webform, and submits it to YouTube.  YouTube then removes the video from its platform.  YouTube gives the user a "copyright strike."  If YouTube gives that user three copyright strikes, it will terminate the user's account, delete all videos from that account, and ban the user from creating any new accounts.

Users who disagree with the action can challenge the copyright strike.  The user submits a counter notification.  YouTube will then determine whether the original copyright claim was valid.

Copyright law, however, can be complex.  Whether a video amounts to infringement may not be a matter of black and white.  The Fair Use Doctrine, for example, permits a person to use copyrighted material for commentary, criticism, parody, education and research.  What constitutes fair use is often a matter of detailed analysis of facts of circumstances.

Similarly, content may fall into the "Public Domain."  The public domain is the legal term for when a creative work may be freely used by anyone, without obtaining permission or a license from the creator.  This can happen because the legal protection granted to copyrighted material lasts for only a limited period of time.  When a copyrighted work falls into the public domain can be complicated, due to legislative action taken because certain entertainment outlets have lobbied Congress to keep their work protected.  A work can also be part of the public domain because the author intended it to be.  A work created by the federal government is also in the public domain.

The problem, many users claim, is that YouTube's system is subject to abuse.  Filing a copyright webform will almost immediately result in the video being removed.  YouTube's appeal process, these users claims, usually takes days, if not longer, to resolve.  In the meantime, the user is robbed of the ability to accumulate view time, and therefore ad revenue.  Where the video in question concerns a fast-moving current event, it effectively prevents the YouTube user from capitalizing on that event.  The process can also be abused by those who wish to silence critics.  More alarmingly, the lengthy process can be abused to drive competitive outlets, who are small users lacking the resources of multi-million dollar corporations, out of business.  Unscrupulous entities have been charged with buying the copyright of certain content, and then threatening small YouTube users with the possibility of a copyright strike, to demand exorbitant payments in order to avoid having the user's channel deleted.

David Pakman, for example, complained that big media outlets, such as CNN and NBC, filed copyright strikes against him when he broadcast live streams of congressional hearings through social media.  During the lead up to the impeachment of President Donald Trump, for example, Pakman would live-stream hearings before the House of Representatives, which were originally broadcast through C-SPAN, the congressional cable TV organization.  Because such public hearings show the workings of the government, they are in the public domain.  Nonetheless, large media outlets filed copyright removal webforms against Pakman, claiming the live-streams infringed on their copyrighted broadcast of the same material.

Pakman, who is a liberal political commentator, alleged that because of the actions of the media outlets, his live-streams of the hearings were removed from YouTube immediately.  He thus lost the opportunity to realize the revenue generated from the ads on those live-streams, upon which Pakman claimed he depended in order to be able to continue to broadcast his podcasts and other forms of commentary as his job.  Pakman charged that YouTube was in the back pocket of the big corporations, which engaged in this predatory behavior in order to drive small political commentators like him out of business.

YouTube users PewDiePie and Retroblasting have complained that celebrities and other YouTubers have filed copyright complaints with YouTube when they have disliked the criticism they have received through videos published on the platform.

Dr. Drew has apparently joined the list of those unhappy with criticism aired on social media, and responded by making copyright claims.  Ironically, Pinsky wrote a book entitled, "The Mirror Effect: How Celebrity Narcissism is Seducing America."  Now it appears to be his narcissism that is playing a role in shutting down free speech on social media sites.

By:  William J. Kovatch, Jr.

References

DrDroops, "Compilation of all of the inaccurate, contradictory things that Dr. Drew has said about the Coronavirus," YouTube Video (April 2, 2020).

French, Leonard, "Dr. Drew DMCAs Critical Montage, Was It Fair?", Legal Masses with Leonard French (April 6, 2020).

French, Leonard, "The Injustice of Copyright - MxR Plays Extortion," Legal Masses with Leonard French (January 9, 2020).

Fuster, Jeremy, "Dr Drew Supercut of COVID-19 Gets YouTube Copyright Takedown," The Wrap (April 5, 2020).

Lee, Timothy B., "15 tears ago, Congress kept Mickey Mouse out of the public domain," The Washington Post (October 25, 2013).

Pakman, David, "CNN AND NBC Drop Hammer on David Pakman," David Pakman Show (November 18, 2019).

Pakman, David, "We.re SHUT DOWN by Political Consultant OR Right-Wing Troll," David Pakman Show (February 26, 2020).

PewDiePie, "STOP DOING THIS! - Copyright Striking Criticism Etc," YouTube Video (January 11, 2019).

Pinsky, Drew, "About Dr. Drew," drdrew.com.

Retroblasting, "You Had Your Chance, Danoby," YouTube Video (February 10, 2020).

Retroblasting, "Danoby Doesn't Want You to Know This, I Have the Receipts," Bit Chute Video (February 10, 2020).

Stim, Rich, "What is Fair Use?", Copyright & Fair Use (Stanford University Libraries).

Stim, Rich, "Welcome to the Public Doman," Copyright & Fair Use (Stanford University Libraries).

Weiss, Norman, "YouTube reinstates viral video of Dr. Drew downplaying coronavirus that he had removed claiming copyright infringement," Primetimer (April 7, 2020).

Wodinsky, Shoshana, "YouTube's copyright strikes have become a tool for extortion," The Verge (February 11, 2020).

World Health Organization, "Naming the coronavirus disease (COVID-19) and the virus that causes it."

YouTube, "Copyright Infringement Notification Requirements," YouTube Help.

YouTube, "Copyright Strike Basics," YouTube Help.

While Recognizing the Danger the Mexican Cartels Pose to US Citizens, Trump Ignores the Same Danger Posed to Asylum Seekers Forced to Remain in Mexico

A few years ago, my cousin was looking forward to her first trip to Mexico.  I asked if she bought her kidnapping insurance yet. She laughed, but then noticed I was being serious. She looked at me and said “That’s not a thing, is it?”  I told her to look it up.  A few days later, she called me absolutely surprised that kidnapping insurance existed for people taking trips to Mexico.

I don’t mean to impugn all Mexican people.  But we cannot pretend that all areas of Mexico are safe. The sad reality is that criminal organizations known as the cartels dominate the northern areas near the border with the United States.  Their main goal is to profit off of the illicit drug trade with the United States.  But they have their hand in any potentially lucrative criminal enterprise.

As an immigration lawyer, when you listen to your client’s stories of how they braved the cartels, you instantly feel anger, sadness and admiration at the same time.  Anger that such powerful and dangerous forces of evil exist.  Sadness that living with this evil is the reality for people who just want to escape the violence of street gangs in their home country.  And admiration that your clients faced this evil, and survived.

A Central American migrant simply cannot plan to journey north without considering the hold the Mexican cartels have over illegal border crossings.  Typically, a migrant hires a guide, known as a “coyote,” to lead them on their journey.  The coyote supposedly knows the terrain and how best to navigate the many obstacles that exist before reaching the border.  But each coyote is associated with one of the Mexican cartels.  The cartels have the territory just south of the border carved out.  If a coyote strays into territory belonging to a rival cartel, it can mean extortion, and even death to those is his group.

But even traveling through the territory controlled by the cartel associated with their coyote is not necessarily a guarantee of safety.  Coyotes have been known to lead groups of migrants right into the hands of cartel members, armed with automatic weapons, who in turn beat, rape and rob the migrants just when they reached the border.  Female clients of mine have told me that they expect this, and for that reason start taking birth control pills before their journey.  Women who are naive have wound up pregnant as a result of the rape.  Indeed, it has been reported that cartel members hang the underwear of their rape victims on trees, called rape trees, as a sign of their power.

At times, the cartels will kidnap the migrants trying to seek safety in the United States.  They may hold migrants for ransom. They may force females to satisfy their sexual desires, and do the cooking and cleaning for the cartels.  They may sell the migrants into slavery.

President Trump recently recognized the danger present in northern Mexico because of the cartels.  After nine members of a family of US citizens were murdered by the cartels, Trump tweeted an offer of US assistance with cleaning up the cartels to Mexican President Andrés Manuel López Obrador.  

But while Trump recognizes the danger the cartels pose to US citizens (the victims of the cartel violence were related to Mormons who settled in Mexico after the Church of Jesus Christ and Latter Day Saints abandoned the practice of polygamy in 1890, and maintain dual Mexican-American citizenship), he ignores the same danger those cartels pose to Central American migrants he has forced to wait in Mexico while their asylum applications pens in US Immigration Court. 

Last Winter, the Trump Administration began its “Remain in Mexico” program, also known as the Migrant Protection Protocols or MPP.  Not wanting the migrants to stay in the United States while their asylum cases worked their way through court, Trump reached an agreement with the Mexican Government permitting asylum seekers to remain, temporarily in Mexico, only permitted into the United States when there were court hearings in their cases.  But the migrants would live in the very area of Mexico dominated by the cartels.

Already, it has been reported that migrants have been kidnapped by the cartels, as soon as they return to Mexico after a court hearing.  Nonetheless, keenly aware of the danger the cartels pose, the Trump Administration continues to force asylum applicants to face this danger, rather than permit the applicants to be released on bond within the United States.

As has often been argued, it is the cruelty of the Trump Administration towards migrants fleeing violence at home that is the point of the policy.  By demonstrating to potential migrants that the United States will compel them to live in dangerous situations while waiting for a decision on their asylum applications, which can often take years, the Administration hopes to disuade migrants from making the trip north. 

Whether such cruelty works as a deterrent to asylum seekers is questionable at best.  When the cruelty of ripping children away from their parents who crossed the border was the official policy of the Trump Administration, the number of Central Americans seeking the safety of the United States only increased significantly.  So far, in 2019, CBP statistics show a large increase of apprehensions at the border as compared to last year, despite the implementation of the MPP.

By:  William J. Kovatch, Jr.

Temporary Restraining Order Blocks Trump Administration from Implementing Rule Requiring New Immigrants to Have Health Insurance

On November 2, 2019, Judge Michael Simon of the U.S. District Court for the District of Oregon issued a nation-wide temporary restraining order ("TRO"), preventing the Trump Administration from implementing its new policy of requiring aliens applying for visas to become lawful permanent residents to demonstrate that they will be covered by an approved health insurance plan within 30 days of entering the United States.  The Trump Administration was set to implement the policy on November 3, 2019.

A group of plaintiffs filed a lawsuit challenging the policy on October 30, 2019.  The followed up by filing a motion for a TRO on November 1, 2019.  The Court held an emergency hearing on November 2, 2019.  The parties presented oral arguments at the hearing, but did not have time to file written arguments.

The Government had argued that the plaintiffs made their own emergency, by delaying until a few days before the policy was to go in effect to file their complaint and motion.  Judge Simon disagreed, noting that the Presidential Policy announcing the new policy was published on October 4, 2019, and that under the circumstances, filing a complaint twenty-six days after the issuance of the Proclamation was not an unreasonable delay.

Pursuant to the Presidential Proclamation, if an applicant for an immigrant visa could not show that he or she would be able to purchase an approved health insurance policy within 30 days of entering the United States, they would be deemed inadmissible as likely to become a public charge, and barred from entering the United States.

The Court first noted that Congress had addressed the public charge grounds of inadmissibility in the Immigration and Nationality Act ("INA").  Congress provided that a number of factors should be examined to determine whether a person is likely to become a public charge, which include the alien's age, health, family status, assets, resources, and financial status, and education and skills.  No one factor was to be determinative.  The statute did not mention a person's health insurance status as one of those factors.

Moreover, the Proclamation listed a number of health insurance plans that would acceptable.  The Court found that almost all of the listed types of insurance plans would be unavailable to most intending immigrants.  In addition, the Proclamation excluded any health insurance plan purchased through a state's marketplace pursuant to the Affordable Care Act (also known as Obamacare) if the state subsidized the plan.  Thus, the Court noted that the Proclamation excluded the one type of health insurance plan many intending immigrants would be able to afford.  Furthermore, the Court noted that Congress had rejected a proposal to consider the receipt of non-cash benefits from the government in making the public charge consideration.  The Presidential Proclamation, therefore, was inconsistent with the congressional intent as expressed through the INA.

Because this was an extraordinary measure being taken by the Court at such an early stage in the lawsuit, Judge Simon limited the TRO to 28 days, unless extended by the Court.  The Court further scheduled another hearing on November 22, 2019.

By:  William J. Kovatch, Jr.

Immigration Court Decision Concerning the Return to Mexico Program Raises More Questions than it Answers

On September 17, 2019, an Immigration Judge in San Diego, California, terminated removal proceedings for a family of aliens whom the U.S. Government had made subject to the Migrant Protection Protocol ("MPP"), colloquially known as the Remain in Mexico program.  The Judge held that the Government had no authority to apply the MPP to aliens apprehended in the territory of the United States, as opposed to aliens classified as "arriving aliens."  The Judge concluded that the only remedy available to the respondents in this situation was termination of the removal proceedings.

The decision, however, raises more questions than it answers.

The Government established the MPP during the 2018-19 winter to address the increase of Central American migrants traveling to the United States to seek asylum.  Prior to the MPP, the Obama Administration implemented the Catch and Release program, where certain migrants apprehended by the Government were released on bond into the United States pending removal proceedings.  In most cases, these were migrants who claimed a fear of persecution if they were returned to their home country, and who passed a credible fear interview. 

President Trump, who greatly opposed to the Obama Administration's Catch and Release program, sought to implement the MPP to prevent the Central American migrants from remaining in the territory of the United States pending removal proceedings.  Mexico had agreed to permit certain migrants to remain in Mexican territory during the pendency of their removal proceedings in the United States.

Pursuant to the MPP, if a migrant who lacked proper visa documentation or attempted to gain entry based on fraud claimed fear of persecution, immigration officials would follow the procedures set forth in section 235(b) of the Immigration and Nationality Act ("INA"), and refer the migrant to an asylum officer for a credible fear interview.  If the migrant passed the credible fear interview, U.S. Immigration and Customs Enforcement ("ICE") would issue a Notice to Appear and commence removal proceedings, where the migrant could apply for asylum before an Immigration Judge.  Once in removal proceedings, ICE returned the migrant to Mexico, where the migrant would wait for his or her next Immigration Court hearing.

The Government's authority to implement the MPP stemmed from section 235(b)(2)(C) of the INA.  That section of the statute provided that if an alien arrived on land from a foreign country contiguous to the United States, that alien could be returned to the contiguous country pending removal proceedings.  This provision of the INA, however, is subject to the exception of aliens who are eligible for expedited removal.

Through expedited removal, immigration authorities may remove an alien who either lacks proper documentation, or has attempted to enter through fraud, without subjecting that alien to formal removal proceedings before an Immigration Court.  Expedited removal applies to aliens apprehended at a port of entry or at the border, or who are apprehended within 100 miles of the border and cannot prove that they entered more than 14 days prior to the apprehension. 

Currently, the MPP is subject to litigation in federal court.  Opponents of the program argue that the Government cannot apply the MPP to aliens who are eligible for expedited removal because of the statutory exception.  The Government replies that it has discretion on whether to apply expedited removal.  If the Government chooses not to apply expedited removal, despite the alien's eligibility, and instead places the alien in full removal proceedings before an Immigration Court, then the MPP may apply to that alien.

The decision of the Immigration Judge in San Diego does not address the federal litigation over the MPP.  Indeed, Immigration Courts lack the authority to address such litigation.  Immigration Courts are not part of the Judiciary Branch of Government.  They are instead more akin to administrative courts, and are part of the Executive Branch.  As such, Immigration Courts only have the authority as set forth in the INA, which is to adjudicate whether the specific alien before it is removable from the United States.

The Immigration Judge did address a different issue raised by the MPP.  Namely, whether the MPP can be applied to aliens who do not meet the definition of an arriving alien.  An arriving alien is specifically defined as an alien who presents himself or herself for inspection at a port of entry, or who is apprehended on the border.  The Immigration Judge noted that 90% of the aliens who were being placed in the MPP and sent back to Mexico awaiting removal proceedings were aliens apprehended in the territory of the United States.  That is, aliens who crossed the border and were found by immigration authorities inside U.S. territory.  This is a separate category of aliens.  The Judge emphasized this point, noting that arriving aliens possess fewer rights than aliens apprehended within the United States.  Because section 235(b)(2)(C) expressly applied to arriving aliens, the Judge held that the Government violated the law by applying the MPP to aliens apprehended within the United States.

However, the Immigration Judge noted that it was a court of limited authority.  The court had no authority to order the Government to bring the aliens wrongfully placed in the MPP back into the United States from Mexico.  The only authority it had was to terminate the removal proceedings, without prejudice.  This means that the Government could refile the Notice to Appear and being new removal proceedings.  But the court could not order that the Government do so.

Although the decision is significant in that it finds that the U.S. Government is applying the MPP in an illegal manner, the outcome raises more questions than it answers.  It does not answer the question of whether the aliens wrongfully placed in the MPP will eventually return to the United States.  Indeed, arguably the Government could just ignore the aliens who are already in Mexico, and refuse to restart removal proceedings.  Under such circumstances, the aliens may need to begin more litigation, such as a habeas corpus proceeding, or sue the Government for a breach of constitutional rights.  The ultimate success of such litigation remains in doubt.

Moreover, the Government can appeal the Immigration Judge's decision to the Board of Immigration Appeals.  The future of the particular migrants subject to this decision, as well as others similarly situated, remains clouded.

By: William J. Kovatch, Jr.