Friday, February 28, 2020

For Every Right a Remedy

On the morning of November 26, 1965, agents of the Federal Bureau of Narcotics entered the apartment of Webster Bivens and arrested him for a narcotics violation. It was alleged that the agents manacled Mr. Bivens in front of his wife and children, threatened to arrest the entire family, and searched the entire apartment. Mr. Bivens was thereafter taken to the federal courthouse in Brooklyn, where he was interrogated, booked, and strip-searched.

Almost two years later, Mr. Bivens sued in the Federal District Court, complaining that the federal agents arrested him without a warrant, that they used unreasonable force, and that they made the arrest without probable cause. But the agents argued that a violation of the Fourth Amendment to the U.S. Constitution didn’t create a basis for a lawsuit.

The Supreme Court disagreed. Citing the seminal case of Marbury v. Madison, the Court said that the “’very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury.’” [1] Having concluded that Mr. Bivens had stated a proper cause of action under the Fourth Amendment, the Court held that he was entitled to recover money damages for any injuries he had suffered as a result of the agents’ constitutional violation.

The case was Bivens v. Six Unknown Federal Narcotics Agents, and the Court relied on a principle that is a critical feature of our legal tradition going back to England. As Sir William Blackstone put it in his Commentaries on the Laws of England, “it is a general and indisputable rule, that where there is a legal right, there is also a legal remedy, by suit or action at law, whenever that right is invaded.” [2] Webster Bivens had the rights guaranteed by the Fourth Amendment, and thus had a lawsuit available to him for any violations of those rights.

Recently, in Hernandez v. Mesa, the Supreme Court was asked to extend the holding of the Bivens case to a cross-border shooting. What happened in this case was that a 15-year-old Mexican national by the name of Sergio Adrián Hernández Güereca was with a group of friends in a concrete  culvert that separates El Paso, Texas, from Ciudad Juarez, Mexico, the border running through the center of the culvert. Border Patrol Agent Jesus Mesa, Jr., was detaining one of Hernández’s friends on the U.S. side. Hernández was also on the U.S. side and ran back to the Mexican side, whereupon Agent Mesa shot and killed him.

Hernández’s parents sued in the United States District Court for the Western District of Texas, alleging a violation of his Fourth and Fifth Amendment rights. But when the case reached the Supreme Court, the Court declined to apply Bivens on separation of powers grounds. Specifically, the Court said that with “the demise of federal general common law, a federal court’s authority to recognize a damages remedy must rest at bottom on a statute enacted by Congress…, and no statute expressly creates a Bivens remedy,” [3] thus, coming very close to overruling Bivens entirely.

But that reasoning completely ignores Clearfield Trust Co. v. United States, where the Court said that where federal questions are involved “it is for the federal courts to fashion the governing rule of law according to their own standards” in the absence of an applicable Act of Congress. [4] There is no federal common law in cases where the federal courts take cognizance based on the parties being residents of different states, although the legal questions are based on state law. But that rule doesn’t apply where the legal question is a federal one, as in the Bivens case as well as Hernandez v. Mesa.

It thus appears that in the Hernandez case the Court wasn’t exercising laudable judicial restraint, but was abrogating its role. There would have been no intrusion on the function of Congress involved in permitting Hernández’s parents to proceed with their case. The Court would not have been making any substantive law; the Fourth and Fifth Amendments to the Constitution are already the law, and that whether Congress likes it or not.

As a result of the Court’s decision we now have a situation where there is no legal remedy for the violation of a legal right. This strikes at the very heart of our civil liberty, and we all should be alarmed at this development.

Wednesday, February 19, 2020

Pardon Me Not

According to The New York Times, “President Trump, citing what he said was advice from friends and business associates, granted clemency on Tuesday to a who’s who of white-collar criminals from politics, sports and business who were convicted on charges involving fraud, corruption and lies — including the financier Michael R. Milken.” [1] You may remember Mr. Milken. He “was the billionaire ‘junk bond king’ and a well-known financier on Wall Street in the 1980s. In 1990, he pleaded guilty to securities fraud and conspiracy charges and was sentenced to 10 years in prison, though his sentence was later reduced to two years. He also agreed to pay $600 million in fines and penalties.” [2]

Also included in the executive beneficence was former Governor “Rod R. Blagojevich of Illinois” who “was sentenced to 14 years in prison in 2011 for trying to sell or trade to the highest bidder the Senate seat that Barack Obama vacated after he was elected president. Mr. Blagojevich’s expletive-filled remarks about his role in choosing a new senator — ‘I’m just not giving it up for nothing’ — were caught on government recordings of his phone calls and became punch lines on late-night television.” [3]

Now these, and all the others involved, despite the optics, might be well worthy of pardons, as pardons go. But there will be those who disagree. And at a time like this in the history of American politics, we don’t need a public perception that white-collar criminals are favorites of the President of the United States. Confidence in the criminal justice system is critical. But too often pardons emit the reek of corruption.

All of these people were duly convicted of federal crimes, and there is no indication that they were denied due process. Yet the President, with a few strokes of the pen, can legally make their actions as if they never happened.

Why does the Constitution allow for this? It is, simply, a power that the President inherited from the King of England. It was the constitution of that country which, albeit unwritten to this day, was used as a template of the U.S. Constitution by the Framers. The Senate is in place of the House of Lords; the House of Representatives is our House of Commons; and the President was in place of the monarch.

Now there was a reason for the king’s pardon power, and it was explained to us by Sir William Blackstone:

“IN criminal proceedings, or prosecutions for offenses, it would still be a higher absurdity, if the king personally sat in judgment; because in regard to these he appears in another capacity, that of prosecutor. All offenses are either against the king’s peace, or his crown and dignity; and are so laid in every indictment. For, though in their consequences they generally seem (except in the case of treason and a very few others) to be rather offenses against the kingdom than the king; yet, as the public, which is an invisible body, has delegated all its power and rights, with regard to the execution of the laws, to one visible magistrate, all affronts to that power, and breaches of those rights, are immediately offenses against him, to whom they are so delegated by the public. He is therefore the proper person to prosecute for all public offenses and breaches of the peace, being the person injured in the eye of the law. And this notion was carried for far in the old Gothic constitution, (wherein the king was bound by his coronation oath to conserve the peace that in case of any forcible injury offered to the person of a fellow subject, the offender was accused of a kind of perjury, in having violated the king’s coronation oath; dicebatur fregisse juramentum regis juratum. [He was said to have broken the sworn oath of the king.] And hence also arises another branch of the prerogative, that of pardoning offenses; for it is reasonable that he only who is injured should have the power of forgiving.” [4]

The king had the power of pardoning crimes because he was legally considered to be the party injured. But does that reasoning make any sense when applied to the President? The plaintiff in federal criminal cases is the United States, not the President.

Alexander Hamilton rendered a defense of the pardon power granted to the President in Federalist No. 74:

“It is not to be doubted, that a single man of prudence and good sense is better fitted, in delicate conjunctures, to balance the motives which may plead for and against the remission of the punishment, than any numerous body whatever. It deserves particular attention, that treason will often be connected with seditions which embrace a large proportion of the community; as lately happened in Massachusetts. In every such case, we might expect to see the representation of the people tainted with the same spirit which had given birth to the offense. And when parties were pretty equally matched, the secret sympathy of the friends and favorers of the condemned person, availing itself of the good-nature and weakness of others, might frequently bestow impunity where the terror of an example was necessary.

“On the other hand, when the sedition had proceeded from causes which had inflamed the resentments of the major party, they might often be found obstinate and inexorable, when policy demanded a conduct of forbearance and clemency. But the principal argument for reposing the power of pardoning in this case to the Chief Magistrate is this: in seasons of insurrection or rebellion, there are often critical moments, when a welltimed offer of pardon to the insurgents or rebels may restore the tranquillity of the commonwealth; and which, if suffered to pass unimproved, it may never be possible afterwards to recall. The dilatory process of convening the legislature, or one of its branches, for the purpose of obtaining its sanction to the measure, would frequently be the occasion of letting slip the golden opportunity. The loss of a week, a day, an hour, may sometimes be fatal. If it should be observed, that a discretionary power, with a view to such contingencies, might be occasionally conferred upon the President, it may be answered in the first place, that it is questionable, whether, in a limited Constitution, that power could be delegated by law; and in the second place, that it would generally be impolitic beforehand to take any step which might hold out the prospect of impunity. A proceeding of this kind, out of the usual course, would be likely to be construed into an argument of timidity or of weakness, and would have a tendency to embolden guilt.” [5]

Hamilton only addressed the pardoning power to treasonous activity, but it is easy to see the weakness of his argument as applied to all cases. Any dispatch needed for this purpose can be handled by ordinary prosecutors, who offer conditional immunity all the time. The President can direct his Justice Department to do just that. It’s true that without the pardoning power the President can’t remove the offense after a conviction. But what do we need that for? There are court remedies for flawed prosecutions; and if there was nothing wrong with the prosecution, and the defendant was convicted, should the executive step in and remove the conviction because he feels like it?

The Constitution should be amended to remove the pardoning power of the President. 

Wednesday, February 5, 2020

A Predictable Whoops

The Iowa Caucus debacle should serve as an exemplification of how politics ruins everything.

It turns out that the mobile app that went awry was developed by a little-known start-up that was founded by—guess who— “veterans of Hillary Clinton’s failed 2016 presidential campaign who had presented themselves as gurus of campaigning in the digital era.” [1] The company, humorously named Shadow, Inc., “was picked in secret by the Iowa Democratic Party after its leaders consulted with the Democratic National Committee on vetting vendors and security protocols for developing a phone app used to gather and tabulate the caucus results.” [2] Apparently top-secret clearance was needed to be apprised of this insider chicanery.

There was an alternative. “Microsoft had developed a similar app that was successfully used by both parties in 2016, but this cycle Democrats turned to” [3] the more well-connected outfit. And it turns out that it was possible to simply telephone the results in, but the party decided that wouldn’t be as good as a technology developed by Democratic insiders. As a result, caucus organizers were “reporting they were on hold for over an hour before they were able to speak with someone.” [4]

And it isn’t as if they had no reason to anticipate this would happen. Douglas Jones, an election security expert, “had warned before the caucuses that the Iowa Democratic Party’s plan to deploy the unproven app during the high-stakes event was risky and had been undermined by excessive secrecy and a lack of public confidence in its ability.” [5] What’s more, Shadow was “handicapped by its own lack of coding know-how, according to people familiar with the company. Few of its employees had worked on major tech projects, and many of its engineers were relatively inexperienced.” [6]

The modern allergy to low-tech has once again manifested its symptoms. Paper ballots, which cannot be hacked, and the time-proven process of counting, just aren’t good enough anymore. And when companies are awarded with business, not due to their competence, but because of their political connections, the results can be predicted.

There is no correlation between being a member of the political class and technical competence. It should also be evident by now that there is no correlation between being included in that august social tier and the ability to govern—but that is a lesson for another time.