Articles Posted in Politics

Frederick Baron, former associate deputy attorney general and director of the Executive Office for National Security in the Department of Justice, Dennis Aftergut, a former federal prosecutor, and Austin Sarat, Associate Provost and Associate Dean of the Faculty and William Nelson Cromwell Professor of Jurisprudence & Political Science at Amherst College, call upon the House Judiciary Committee to carefully read the ethics complaint by 27 distinguished DC lawyers against William Barr before questioning him today, July 28, 2020.

Dean Falvy, a lecturer at the University of Washington School of Law in Seattle, describes how to tell whether a government is plotting to overthrow itself—a phenomenon he calles a “Selfie Coup.” Falvy explains the difference between a Selfie Coup and creeping authoritarianism by providing examples of both and argues that the more aware civil society is of the possibility of a Selfie Coup, the more likely it can prepare its defenses in time to prevent it.

Austin Sarat—Associate Provost, Associate Dean of the Faculty, and William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College—comments on President Trump’s commutation of the sentence of Roger Stone. Sarat observes the pattern of Trump using his exclusive power of clemency to help those who, like Stone, committed crimes that show disdain for the legal process, and he argues that Trump seems “incapable of grasping the meaning of mercy or of understanding its place in a decent society.”

Austin Sarat—Associate Provost, Associate Dean of the Faculty, and William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College—comments on President Trump’s Fourth of July speeches, in which the President described a nation at war with itself and its legacy. Sarat points out the irony of Trump accusing others of lying about or attempting to erase the past, and he notes that Trump’s own distortion of historical facts is a tactic that authoritarian, fascist, and totalitarian regimes have used in the past to legitimize the regime or erase inconvenient truths.

Cornell law professor Michael C. Dorf comments on a recent Executive Order issued by President Trump calling for the creation of a “National Garden of American Heroes.” Dorf argues that we should recognize the Executive Order for the distraction that it mostly is and points out some of the Order’s fallacies, ambiguities, and inconsistencies.

Touro law professor Rodger D. Citron analyzes the oral arguments in the cases before the U.S. Supreme Court regarding demands for President Trump’s financial records. Citron explains why it seems likely that the Court will reverse the lower courts’ decisions refusing to quash the House committee subpoenas and offers a number of observations based on his review of the transcript.

In this second of a two-part series of columns considering the likelihood that President Trump will refuse to leave the White House even if he loses the election, UF Levin College of Law professor and economist Neil H. Buchanan describes the bad news that Trump and his supporters seem likely to use violence to keep him in office.

Austin Sarat—Associate Provost, Associate Dean of the Faculty, and William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College—comments on a decision by a panel of the U.S. Court of Appeals for the D.C. Circuit holding that U.S. District Judge Emmet G. Sullivan exceeded his power by refusing to grant the Justice Department’s motion to dismiss the case against Michael Flynn, President Trump’s former national security advisor. Sarat explains the relationship between the judiciary and prosecutors and points out that that judicial deference toward prosecutorial decisions can only be reconciled with constitutional governance if prosecutors respect, and are guided by, canons of integrity and professionalism. Sarat argues that the current leadership of the Justice Department shows utter disdain for such canons.

In this two-part series of columns, UF Levin College of Law professor Neil H. Buchanan discusses some new reasons for guarded optimism that Americans are beginning to recognize—and thus might be able to mitigate—the danger Donald Trump represents to American democracy. In this first part, Buchanan grounds his guarded optimism in Joe Biden’s expressly voicing concern that Trump will not leave the White House if he loses the election.

Cornell law professor Michael C. Dorf discusses a claim by Missouri Senator Josh Hawley that the purpose of originalism and textualism is to provide a mechanism for obtaining results that religious conservatives favor on ideological grounds. In light of two recent Supreme Court decisions that disappointed conservatives, Dorf considers how conservatives might respond to these decisions and expresses hope that they might rethink their support for Trump. Dorf observes that while Supreme Court rulings do sometimes follow election returns, the reverse is also sometimes true, and we can’t yet know which direction this year will flow.

Touro law professors Jeffrey B. Morris and Rodger D. Citron conduct a profile of John J. Gleeson, the lawyer and former judge who has been appointed as a “friend of the court” to advise the federal district court on a matter where the U.S. Department of Justice is seeking dismissal of the case against former national security advisor Michael Flynn. Morris and Citron describe Gleeson’s background both on and off the bench and predict that, if given the opportunity to fulfill his role, Gleeson will certainly be fair and proper in determining the proper way to deal with Michael Flynn’s case.

UF Levin College of Law professor Neil H. Buchanan reiterates his argument that Donald Trump will refuse to leave the White House even if he loses the 2020 election and considers why journalists are only just now beginning to recognize that as a possibility. Buchanan laments the possibility that there is nothing to be done about this existential threat to America’s constitutional democracy.

In this second of a two-part series of columns, UF Levin College of Law professor Neil H. Buchanan explains why Senate Majority Leader Mitch McConnell is incorrect in claiming that the reason Democratic-led states are in trouble is that they are providing excessively generous pensions to retirees who worked for state and local governments. Buchanan then examines a workaround, first described by Professor Darien Shanske of the University of California at Davis, that would allow the Federal Reserve to give assistance to states and cities without interference from Republicans in the Senate or the White House.

Austin Sarat— Associate Provost, Associate Dean of the Faculty, and William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College—comments on the decision by the conservative Wisconsin Supreme Court halting the state’s stay at home order. Sarat points out that the opinion recapitulates, without acknowledgment, debates in analytic jurisprudence about the distinction between orders and rules, and he argues that while the decision may be good for the Trump campaign, it puts at risk the lives and well-being of Wisconsin’s citizens.

In this first of a series of columns about federal relief to state and local governments, UF Levin College of Law professor and economist Neil H. Buchanan provides the economic background to explain how unprecedented these times are and argues that supporting cities and states is essential to surviving this crisis.

Cornell law professor Michael C. Dorf comments on last week’s decision by the U.S. Supreme Court reversing the convictions of two New Jersey officials for their role in the so-called “Bridgegate” scandal of 2013. Although the Court made clear that the underlying conduct was dangerous and wrong, its holding reversing the convictions may effectively permit corrupt bullies to continue to exercise political power, due in part to inadequate responses from other political actors.

Austin Sarat—Associate Provost, Associate Dean of the Faculty, and William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College—comments on the recent news that the Justice Department will seek dismissal of charges against Michael Flynn. Sarat suggests that because the decision does not seem to advance the fair administration of justice in this case, the court should take the unusual step of refusing to grant the prosecutor’s motion to dismiss.

Cornell Law professor Sherry F. Colb comments on recent sexual assault allegations against presumptive Democratic nominee Joe Biden. Colb argues that if the only choices for President are Donald Trump and Joe Biden, the sexual assault allegation against the latter will take second fiddle to the need to defeat the former and defends this perspective as not manifesting hypocrisy or indifference to sexual assault or other intimate violence.

Austin Sarat—Associate Provost, Associate Dean of the Faculty and William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College—comments on Harvard Law Professor Adrian Vermeule’s essay “Beyond Originalism,” which Sarat argues brings conservative authoritarianism out of the shadows. Sarat describes Vermeule as a modern-day Machiavelli, offering advice to the governing class and laying out a theory of governance Vermeule calls “common-good constitutionalism” but which in reality elevates the “common good” above individual goods in a manner antithetical to freedom, pluralism, and democracy.

Cornell law professor Joseph Margulies calls upon President Trump to condemn the rise of anti-Asian calumny and violence and contrasts Trump’s actions today with those of President George W. Bush after the September 11 attacks. Margulies points out that immediately after 9/11, President Bush defined national identity in the language of equality and tolerance, stressing that Muslims and Arab-Americans were not the enemy.