World

Former Trump aide Sebastian Gorka said the case involving Gen. Michael Flynn being convicted of lying to federal authorities is one of "classic entrapment."

"[SUNY] Purchase College student Gunnar Hassard was arraigned in Harrison Town Court for Aggravated Harassment in the First Degree, a class E felony, for hanging posters with Nazi symbolism in areas of the campus."

The Westchester County D.A.'s office announced:

[SUNY] Purchase College student Gunnar Hassard was arraigned in Harrison Town Court for Aggravated Harassment in the First Degree, a class E felony, for hanging posters with Nazi symbolism in areas of the campus....

On Sunday evening Dec. 8, 2018, during the Jewish celebration of Hanukkah, the felony complaint alleges that 18-year-old Gunnar Hassard of Oneonta, NY, and a student at SUNY Purchase, hung multiple posters, which incorporated a swastika and symbols of Nazi Germany, on and near the Humanities Building.

The complaint states that the defendant posted multiple flyers on the campus "frequented and utilized by members of the Jewish community ... causing alarm, fear and annoyance to the members of the campus community during the Jewish holiday of Hanukkah."

New York State University Police arrested Hassard and charged him with Aggravated Harassment, a hate crime which specifically states a person is guilty of this crime when one "Etches, paints, draws upon or otherwise places a swastika, commonly exhibited as the emblem of Nazi Germany, on any building or other real property."

As readers might gather, I have only contempt for neo-Nazis. But the statutory provision to which the D.A.'s office is referring, N.Y. Penal Law 240.31, is unconstitutional. The relevant part of the statute reads,

A person is guilty of aggravated harassment in the first degree when with intent to harass, annoy, threaten or alarm another person, because of a belief or perception regarding such person's race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation, regardless of whether the belief or perception is correct, he or she:

Etches, paints, draws upon or otherwise places a swastika, commonly exhibited as the emblem of Nazi Germany, on any building or other real property, public or private, owned by any person, firm or corporation or any public agency or instrumentality, without express permission of the owner or operator of such building or real property.

And that impermissibly singles out a particular message based on its content and even its viewpoint, which is unconstitutional under R.A.V. v. City of St. Paul (1992) (and Virginia v. Black (2003)).

Now the government can generally criminalize the posting of all signs on private property without the owner's permission. It could likewise criminalize the posting of all such signs on government property; and the government as landlord can even set up rules that impose content-based but viewpoint-neutral constraints on what is posted on its property. (SUNY, for instance, can probably bar the posting of signs that contain vulgarities, even though the government can't generally criminalize vulgar speech.) But it can't target for special criminal punishment racist signs, or anti-government signs, or signs critical of various religious, sexual orientations, or what have you. Just as R.A.V. held that a ban on racist "fighting words" is unconstitutional even if a ban on "fighting words" generally is constitutional, so a ban on unauthorized signs that display a swastika is unconstitutional even if a ban on unauthorized signs generally is not.

Nor does the requirement that the speech be intended to "harass, annoy ... or alarm" change the analysis. I don't think that general bans on publicly posted speech intended to harass, annoy, or alarm are constitutional, see People v. Golb (N.Y. 2014) and People v. Marquan M. (2014); but even if they were, they again can't single out swastikas.

A ban that is limited to "true threats" of violence would be constitutional, and it's possible that a ban on true threats that use swastikas would be constitutional, too, by analogy to the ban on true threats consisting of cross-burning that was upheld in Virginia v. Black (2003); the theory would be that swastikas are especially threatening, so a law banning threatening swastikas just focused on the most dangerous subset of the forbidden category. But this statute is not limited to true threats ("intent to ... threaten" is only a part of it), and there seems to be nothing in the press release or the news stories I've read that suggests that the swastikas were indeed true threats of violence. (Of course, seeing a swastika displayed can create some degree of generalized menace, but that's not enough to allow its prohibition, as Black held for cross-burning as well, where there's no specific threat.)

Swastikas are constitutionally protected, just as are hammers and sickles or burning crosses or images of Chairman Mao or other symbols of murderous regimes and ideologies. Public speech intended to "harass, annoy ... or alarm" groups of people (whether Jews or conservative Christians or blacks or whites) is constitutionally protected. Posting things on other people's buildings isn't protected, but the law can't single out the posting of particular viewpoints for special punishment. And true threats of violence are unprotected, but the statute isn't limited to them, and I've seen no evidence of a specific true threat here.

Finally, a public university can't expel or otherwise discipline a student because he expresses pro-Nazi messages, though he can be disciplined for posting materials in places where such posting is allowed -- so long as others who post materials with other viewpoints in those places are disciplined for such posting as well.

Tucker Carlson responded to a California Democrat who said Wednesday that he would "love to be able to regulate the content of speech" but that the First Amendment disallows the practice.

Outgoing Congressman Trey Gowdy said Wednesday he predicts that Democrats will spend the next two years doing "everything that their base wants" -- including undermining President Donald Trump.

The liberal-dominated federal court of appeals lets its partisan and ideological freak flags fly.

A friend passed along the schedule for the federal Ninth Circuit Court of Appeals official 2019 mid-winter meeting. Among other things, the meeting includes both a keynote speech and a breakout session featuring the ACLU's deputy legal director, a session run by transgender activists, and a panel featuring a discussion of hate speech, offensive speech and "triggering" speech. The range of academic perspectives featured at the conference ranges from the very liberal Robert Post to the very liberal Erwin Chemerinsky. The keynote address is about Confederate monuments, a hot issue on the activist left but literally rather far afield for the West Coast-based Ninth Circuit. There's even a panel on Russian cyberattacks on U.S. government institutions. Given the context of the Muller investigation, it's hard to see this entirely as a response to concern about potential targeting of the judiciary.

None of these panels would be particularly noteworthy as one panel among a host of ideologically neutral or balanced panels more directly related to the Ninth Circuit's work. But altogether the agenda reads more like the agenda of an activist organization than a federal judicial institution.

The Ninth Circuit has the right to run its meetings however it chooses, I doubt that federal judges are prone to be swayed by presentations at their meetings, and I wouldn't see a problem if this was the agenda of a private organization that invited judges to attend such a conference. Moreover, it was probably only a handful of Ninth Circuit judges who had a role in planning this event in cooperation with the Federal Judicial Center. But as VC readers are undoubtedly aware, President Trump has engaged in a series of unseemly and generally unwarranted attacks on the partisan neutrality of the judiciary. This is a poor time for the Ninth Circuit to be giving his ilk ammunition.

Sen. Bernie Sanders said Wednesday although he believes border security is "enormously important," building a wall would be the wrong way to improve it.

The death stare gave it away.

Jesse Watters read from the latest installment of "Mom Texts" on Wednesday -- featuring messages he's received from his politically liberal mom, Dr. Anne Watters.

CRY WILDERNESS

By Frank Capra

Rare Bird Books, $26.95, 272 pages

The panel on "The Five" reacted to Michael Cohen being sentenced to three years in prison on lying to authorities and campaign finance charges.

Judge Andrew Napolitano said Wednesday that President Trump should take Michael Cohen's prison sentencing "with great gravity."

Tomi Lahren takes viewers inside the U.S. Border Patrol's handling of the migrant caravan in a special Fox Nation presentation that debuts Thursday for subscribers.

Paul Manafort thought he was in the clear in the summer of 2014 after meeting with federal prosecutors and FBI agents about his Ukrainian income, bank records and income tax returns.

Harris Faulkner will sit down with President Donald Trump for an exclusive interview that will air Thursday at 1:00pm ET on "Outnumbered: Overtime."

"Protection against the possibility of future adverse impact on employment does not overcome the presumption of public access."

In Badinelli v. Tuxedo Club, 2018 WL 6411275 (S.D.N.Y. Dec. 6, 2018), plaintiff sued his ex-employer for breach of contract, retaliation, and age discrimination; the parties eventually settled the case. But then plaintiff sought to seal the case. Defendant didn't oppose the motion to seal, but Judge Vincent Briccetti rejected it nonetheless:

[P]laintiff seeks to seal this case's entire record, including the complaint and papers submitted in support and opposition to a motion to compel arbitration and dismiss or stay. Plaintiff's motion thus seeks to seal judicial documents entitled to the right of public access [such as complaints and decisions on motions to compel arbitration]....

Plaintiff argues his interest in privacy, professional reputation, and earning capacity outweigh the interest in public access to the record.

The Court is not persuaded. Protection against the possibility of future adverse impact on employment does not overcome the presumption of public access. See, e.g., Bernsten v. O'Reilly, 307 F. Supp. 3d at 169 (citing Alexandria Real Estate Equities, Inc. v. Fair, 2011 WL 6015646, at *3). Moreover, plaintiff presumably considered the possibility of future adverse impact when he chose to commence the case in federal court. If he did not, he should have, especially since he had an arbitration agreement with defendant and therefore could have brought the case in arbitration rather than in a judicial forum....

Finally, the Court notes plaintiff's motion to seal is largely based on a desire to remove information from the Internet. But at the very least the Court's decision compelling arbitration is a "matter[ ] of public record appearing not only on the docket of this Court and in search engine results, but ... also published in law reporters. Accordingly, the Court's sealing of its Decisions and Orders on the docket, and even directing search engines to remove them, would be pointless if done to remove public information about them." Ferrand v. Lyonnais, 106 F. Supp. 3d 452, 455 (S.D.N.Y. 2015) (internal citations omitted); see also Badinelli v. The Tuxedo Club, 183 F. Supp. 3d 450 (S.D.N.Y. 2016).

Accordingly, plaintiff fails to make a sufficient showing to overcome the common law presumption of access. Thus, the Court need not analyze whether the First Amendment presumption also applies....

The recent Furtado v. Napolitano (D. Mass. Nov. 26, 2018), reached a similar result. There, the file was unsealed for several years, then briefly sealed, for reasons similar to those given by Mr. Badinelli, but then the court promptly unsealed it (based on a motion to unseal that I had filed, because I'm researching such sealing cases). The rationale was somewhat narrower than that in Badinelli, but consistent with it:

Mr. Furtado argues that the public's access to court records in these cases [in which he had sued his former employer, a government agency] has caused him significant hardships, including emotional trauma and an inability to find work.

The Court is sympathetic to any harm that has come to Mr. Furtado as a result of public access to court records of his case. However, Mr. Furtado has not articulated any specific basis on which sealing these records, after they have been publicly accessible for years, will remedy these hardships, particularly given that they will almost certainly remain available elsewhere on the Internet. "Only the most compelling reasons can justify non-disclosure of judicial records." Here, Mr. Furtado has not offered any compelling justification to seal the records in these now years-old cases.

Legal expert Jonathan Turley slammed President Trump’s former personal attorney Michael Cohen, saying he has "betrayed everyone."

Rep. Bob Goodlatte (R-Va.) said on "America's Newsroom" that federal antitrust laws must be reviewed to account for Google's massive share of search traffic.

In an interview with Reuters Tuesday, President Trump said he's not concerned about impeachment and he believes "the people would revolt if that happened."

Conservative commentator and editor-in-chief of The Daily Wire Ben Shapiro called out Rep.-elect Alexandria Ocasio-Cortez for claiming Jewish heritage.

Fox Nation host Tomi Lahren praised President Trump for standing up to Chuck Schumer and Nancy Pelosi in an explosive, televised White House meeting.

Retired Secret Service Agent Dan Bongino said the Democratic leaders of the House and Senate "dropped a huge 'L'" on their battle with President Trump over the wall and border security during a public discussion at the White House.

First lady Melania Trump will sit down with Sean Hannity Wednesday for an exclusive interview aboard the USS George H.W. Bush aircraft carrier.

Rep. Jim Jordan said Tuesday on "Tucker Carlson Tonight" that there is bias being shown by Google that's "plain in front of us."

Tucker Carlson said Senate Democratic Leader Charles Schumer "never hated anything in his whole life" more than being berated by President Trump during a tense back-and-forth on border wall funding.

South Carolina Sen. Lindsey Graham blasted Democrats for their "liberal ignorance" and their apparent preference that "President Trump lose rather than the country win."

The panel on "The Five" reacted to TIME magazine naming "The Guardians and the War on Truth" as person of the year -- the first time someone who is deceased was chosen.

North Dakota Sen. John Hoeven said he backs President Trump's call for $5 billion in border security funding, a topic that caused a raucous debate at the White House between the president and Democratic leaders.

Ann Coulter reacted Tuesday in a Fox Nation interview to President Trump's fiery clash with Democratic leaders Nancy Pelosi and Chuck Schumer over funding for his long-promised border wall.

Episode 243 of the Cyberlaw Podcast

In the News Roundup, Nick Weaver and I offer very different assessments of Australia's controversial encryption bill. Nick's side of the argument is bolstered by special guest Denise Howell, the original legal podcaster, with 445 weekly episodes of This Week in Law to her credit.

Later in the program, I interview Rep. Jim Langevin (D-RI), who's been a force for cybersecurity both on the Homeland Security Committee and on the Armed Services subcommittee that oversees Cyber Command and DARPA – a subcommittee that insiders expect him to be chairing in the next Congress.

Turning back to news, the Marriott hack, already one of the biggest in history, has developed a new and more interesting angle, Gus Hurwitz explains: It may have been a Chinese intelligence operation.

The Khashoggi killing has backfired on… Israeli and Italian hacking companies? Yes, indeed. Hacking Team and NSO are now immersed in legal hot water. And as a sign of how much the Middle East has changed, Nate Jones tells us that a Saudi dissident is now waging lawfare in the courts of Tel Aviv.

We also touch on what the detention in Canada of Huawei's CFO means for US-China technology relations as well as on a new DOD report on the risks of EMP. Nick explains why he doesn't worry about EMP but nonetheless loves the EMP alarmists.

Download the 243rd Episode (mp3).

You can subscribe to The Cyberlaw Podcast using iTunes, Pocket Casts, Google Play, or our RSS feed!

As always, The Cyberlaw Podcast is open to feedback. Be sure to engage with Stewart on social media: @stewartbaker on Twitter and on LinkedIn. Send your questions, comments, and suggestions for topics or interviewees to CyberlawPodcast@steptoe.com. Remember: If your suggested interviewee appears on the show, we will send you a highly coveted Cyberlaw Podcast mug!

"Special Report" anchor Bret Baier said the explosive, televised White House meeting between President Trump and Democratic leaders Nancy Pelosi and Chuck Schumer was "really quite something."

President Trump sparred with Democratic leaders Chuck Schumer and Nancy Pelosi at bipartisan meeting on border wall funding.

Democratic leaders Chuck Schumer and Nancy Pelosi spoke to reporters Tuesday after an explosive meeting in the White House with President Trump.

A former top FBI official blasted former FBI Director James Comey for his new "partisan" attacks on President Trump, revealing that many rank-and-file agents are "infuriated" by his statements.

On "Hannity" Tuesday night, Sen. Lindsey Graham said a special counsel should have been appointed to investigate "all things" related to Hillary Clinton.

Counselor to the President Kellyanne Conway joined Bill Hemmer on "America's Newsroom" to discuss the ongoing debate over border security funding and the chances that could lead to a government shutdown.

The United States is still by far the top choice for potential migrants, according to a new Gallup World poll.

A sculpture from the Satanic Temple's Chicago chapter was just installed at the Illinois Capitol.

Merry Christmas. Make way for the mocking.

Former House Speaker Newt Gingrich reacted on Monday to former FBI Director James Comey's testimony before the House Judiciary and Oversight Committees.

Tucker Carlson debated progressive radio host Chris Hahn on Monday over the court filings on former Trump aide Michael Cohen by Robert Mueller's team.

Ben Shapiro slammed the writer who reported on past homophobic tweets from Heisman Trophy winner Kyler Murray hours after he won college football's top honor.

Jesse Watters said Monday that President Trump's meeting with top Democrats will be his last chance at securing funding for a border wall until 2020.

"The Five" on Monday discussed congressional Democrats' recent push for possible prison time for President Trump following the release of court filings on Trump aide Michael Cohen by the Mueller team.

Fresh off the law review presses.

I'm pleased to say that my latest article has just been published: Cross-Enforcement of the Fourth Amendment, 132 Harv. L. Rev. 471 (2018). Here's the abstract:

This Article considers whether government agents can conduct searches or seizures to enforce a different government's law. For example, can federal officers make stops based on state traffic violations? Can state police search for evidence of federal immigration crimes? Lower courts are deeply divided on the answers. The Supreme Court's decisions offer little useful guidance because they rest on doctrinal assumptions that the Court has since squarely rejected. The answer to a fundamental question of Fourth Amendment law — who can enforce what law — is remarkably unclear.

After surveying current law and constitutional history, the Article offers a normative proposal to answer this question. Each government should have the power to control who can enforce its criminal laws. Only searches and seizures by those authorized to act as agents of a sovereign trigger the government interests that justify reasonableness balancing based on those interests. The difficult question is identifying authorization: questions of constitutional structure suggest different defaults for enforcement of federal and state law. Outside the Fourth Amendment, governments can enact statutes that limit how their own officers enforce other laws. The scope of federal power to limit federal enforcement of state law by statute should be broader, however, than the scope of state power to limit state enforcement of federal law.

There's a Volokh-Conspiracy-related angle to this article, although it's pretty obscure. Long-time dedicated readers may remember that back in 2008, before the oral argument in Virginia v. Moore, I became super-interested in the constitutional status of United States v. Di Re. Was that case applying the Fourth Amendment, or was it based in the supervisory power? I was pretty sure it was the former, although others disagreed. Almost a decade later, when I started researching this article, I was amazed to see that the Supreme Court's answer to the questions I was studying seemed to hinge on determining the constitutional status of United States v. Di Re. Years later, I think I finally answered the riddle, see pages 508-514. I guess everything ends up being relevant somehow.

House Majority Leader Kevin McCarthy said Monday that if Democrats launch investigations into President Trump in the next Congress, it would represent "such a small agenda."

Jared Kushner, President Donald Trump's son-in-law and a senior White House adviser, is joining Sean Hannity Monday night for an exclusive interview.

The new law will help victims of child pornography crimes receive full restitution from convicted defendants who have harmed them.

On Friday, President Trump signed into law the Amy, Vicky, and Andy Child Pornography Victim Assistance Act of 2018 (AVAA). The Act will help victims of what are frequently referred to as "child pornography" crimes obtain full restitution. The Act helps to resolve a thorny legal issue about how to provide restitution to victims -- an issue that was addressed in a 2014 case I argued before the U.S. Supreme Court with co-counsel James Marsh, Paroline v. United States. In rejecting our position that each defendant should pay the "full amount" of a victims losses, the Court articulated a confusing view on the partial restitution to which victims like Amy were entitled. The new law will help ensure victims ultimately receive full restitution from defendants who have harmed them.

A bit of background will usefully frame the importance of the new law. Victims of some crimes -- including child pornography crimes -- suffer injuries caused by multiple defendants. One such victim is "Amy," who was repeatedly raped by her uncle starting when she was four years old. She disclosed the abuse, received treatment, and (according to her therapist) was "back to normal" when she was nine. Then, when she was seventeen, Amy discovered that images of her sexual abuse were among the most widely circulated in the world. The knowledge the persons around the world are viewing those images has been psychologically very harmful to Amy.

Amy's distress is not unusual. As Senator Hatch explained in remarks regarding the new act: "Child pornography is unlike any other crime. The abuse involved in creating these images profoundly alters the lives of victims, while trafficking in the permanent record of that abuse perpetuates and expands the harm. As the Supreme Court noted in . . . Paroline v. United States: 'Every viewing of child pornography is a repetition of the victim's abuse.'"

When defendants are convicted for possessing child pornography, frequently Amy's (or Vicky's or Andy's or other victims') images are among those the defendant possessed. The defendant is, accordingly, in part responsible for the emotional distress suffered by the victim. But what share of the emotional distress is any particular defendant responsible for? In Paroline, the Supreme Court interpreted the restitution law then in effect (18 U.S.C. sec. 2259) as requiring some sort of disaggregation of the responsibility for the harm suffered by a victim. In an opinion written by Justice Kennedy, a narrow majority concluded that "[i]n this special context, where it can be shown both that a defendant possessed a victim's images and that a victim has outstanding losses caused by the continuing traffic in those images but where it is impossible to trace a particular amount of those losses to the individual defendant by recourse to a more traditional causal inquiry, a court applying § 2259 should order restitution in an amount that comports with the defendant's relative role in the causal process that underlies the victim's general losses. The amount would not be severe in a case like this, given the nature of the causal connection between the conduct of a possessor like Paroline and the entirety of the victim's general losses from the trade in her images, which are the product of the acts of thousands of offenders. It would not, however, be a token or nominal amount."

Chief Justice Roberts dissented in Paroline. He wrote: "The Court's decision today means that Amy will not go home with nothing. But it would be a mistake for that salutary outcome to lead readers to conclude that Amy has prevailed or that Congress has done justice for victims of child pornography. The statute as written allows no recovery; we ought to say so, and give Congress a chance to fix it."

Since the Paroline ruling, federal trial courts across the country have struggled to operationalize the Supreme Court's command to "order restitution in an amount that comports with the defendant's relative role in the causal process" -- and for good reason. If (as seems quite likely) Amy is victimized by tens of thousands of viewers of her images, it may be next-to-impossible to assign some specific causal role to any particular defendant.

In 2015, I co-authored a law review article (with my co-counsel James Marsh), urging Congress to eliminate this problem by setting minimum restitution amounts. Congress has now followed that suggested approach in the AVAA.

Here are a few highlights from the new law: As factual support for the Act, Congress found that "the unlawful collective conduct of every individual who reproduces, distributes, or possesses the images of a victim's childhood sexual abuse plays a part in sustaining and aggravating the harms to that individual victim." (Sec. 2(f)). As a result, the Act requires a court sentencing a defendant convicted of a child pornography crime harming a victim to determine the full amount of that victim's losses and then to order restitution from a defendant for amount reflecting the defendant's relative role in the causal process. (Sec. 3(a)(2)(B)). But -- and here's a new innovation -- a trial court must impose restitution in the minimum amount of $3,000.

The AVA also creates a fund for compensating victims of child pornography trafficking in child pornography trafficking (advertising, distribution, and possession) and child pornography production. Whenever a defendant is convicted of a child pornography trafficking crime, for example, a victim has the option of electing to receive a one-time "defined monetary assistance" in the amount of $35,000 (indexed for inflation). The fund will be paid for, in party, through special assessments levied on defendants who are convicted of trafficking crimes, with an additional appropriation of $10 million per year if necessary. Attorneys' fees are capped at 15%.

From a practical point of view, with regard to restitution litigation the most salient feature of the new law will be the $3,000 fixed minimum amount. This minimum ensures that child pornography victims will not receive a token aware from any particular defendant. Does this mean that the new law is subject to the same criticisms as mandatory minimum sentencing laws (criticisms that I have articulated with respect to "stacking" gun charges). The situations seem easily distinguishable:

Although reasonable people can differ on the appropriateness of such mandatory [prison] sentences, it is important to understand that the AVAA does not specify mandatory prison sentences designed to punish offenders. Instead, the AVAA is a remedial statute designed to provide compensation that is akin to joint and several liability in civil tort law. No one suggests that a tort defendant who is ordered to pay the full amount of a victim's losses is somehow subjected to a "mandatory minimum." Like joint and several liability, the AVAA spreads liability for the full amount of a victim's losses across a wide, and often ever-increasing, number of defendants who all become contributors and payors. Instead of one defendant paying one amount and another defendant paying another amount and still other defendants paying nothing, the AVAA requires all defendants to pay something according to their means and in accordance with a reasonable and proportional payment schedule under 18 U.S.C. § 3664. The inherent inequity of the post-Paroline ad hoc multi-factor driven approach is replaced by a simple and streamlined statutory assessment, which is below the statutorily established fine.

This is an excellent new law, which will help to provide full restitution to innocent child pornography victims from guilty defendants involved in child pornography crimes.

Rep. Mike Gallagher (R-Wis.) and the "Outnumbered" co-hosts on Monday weighed in on the social media spat between Donald Trump Jr. and congresswoman-elect Alexandria Ocasio-Cortez.

British politician and top Brexit backer Nigel Farage said Monday on "America's Newsroom" that the United Kingdom is on the verge of a "constitutional crisis."

President Trump is at risk of being indicted for campaign finance violations, according to Fox News senior judicial analyst Judge Andrew Napolitano.

What's the secret to a long life? For 101-year-old Andrew Slavonic, it's a daily Coors Light.

Constitutional theory meets criminal defense meets Civil War history.

A few weeks ago, I opened up Professor Cynthia Nicoletti's recent book, Secession on Trial: The Treason Trial of Jefferson Davis. I didn't expect that I'd spend the next few weeks fiercely poring through it, but I've found myself unable to put it down or stop thinking about it.

The book tells the story of the federal government's attempt to prosecute Jefferson Davis, the president of the so-called Confederate States of America after the end of the civil war. (If, like me, you found yourself thinking, "huh, I didn't even know that there was a treason trial of Jefferson Davis," I will spoil the ending -- the trial never comes, and Davis receives the benefit of the general amnesty from President Johnson.)

Nicoletti argues that at the time, the legality of secession was far less settled by the war than we like to think. If secession was lawful, Jefferson Davis might no longer have been a citizen of the United States subject to the U.S. law of treason, and the threat of that defense -- and the possibility that it might succeed in front of a jury -- kept the federal prosecutors quite nervous about pressing the issue. That, among other things, is how Davis's lawyers managed to run out the clock until the amnesty.

But the book is packed with so many other interesting tidbits and legal arguments that I suspect it will be a delight for many people interested in constitutional law or criminal procedure. The defense succeeded only because of the intersection of these uncertain questions of high theory with the ordinary stuff of criminal practice -- securing continuances, negotiating bail, trying to get hints about the particular preferences of the trial judge, litigating procedural technicalities. Among other things, we get surprise appearances from: the appellate jurisdiction of the Supreme Court; the law of criminal venue; early lectures on what we now call "professional responsibility" by George Sharswood; Section Three of the Fourteenth Amendment, and much more.

Secession on Trial is also just a delight to read. I cannot think of the last time that I read a work of legal history that was so rich with interesting legal argument since David Currie died. In any event, here are three other themes that I kept noting in the book.

The rule of law and the civil war. As Nicoletti emphasizes, the administration in the Davis case was at pains to adhere to the letter of the law, and a somewhat conservative interpretation of the letter of the law at that. This led them to shy away from several tactics that might have let them avoid trying the case in front of a Virginia jury (such as arguing that Davis could be tried by a military commission, or by a jury in either Indiana or West Virginia). She argues, I think persuasively, that this is because it was seen as especially important to restore the ordinary legal norms that had been frayed during the Civil War.

This is relevant to a larger debate about constitutional history. I sometimes come across constitutional scholars today who will argue, in effect, that "the Civil War changed everything" in constitutional law. We know that the war led to three incredibly important amendments to the Constitution, and to a number of important legal precedents, but one sometimes sees scholars of federalism or even other aspects of constitutional law write as if the entire constitutional system was essentially melted down and reformed. It is striking that the participants in Nicoletti's book did not behave that way. They went to great trouble to hold themselves out as continuing the pre-existing legal regime, even at tactical cost.

Zealous advocacy. Charles O'Connor, Jefferson Davis's defense lawyer, really worked all the angles in support of his client. Because his client's interests were implicated by broader political thought about secession and by the law of military tribunals, he helped prop up arguments by other lawyers in other cases that could help his client's general position. When it looked as if things might turn very bad for Davis, he advised him to flee the country, and offered to reimburse the folks who would lose money on Davis's bail. These are the kind of things I usually only hear about in fanciful hypotheticals about the ethics of criminal defense, but they may well have been in Davis's best interests, and they raise interesting questions about what the defense of a much-hated and high-profile criminal defendant should look like.

Liquidation. In a forthcoming article, I recount James Madison's theory of constitutional interpretation through practice -- "liquidation" -- by which a repeated course of constitutional decisions can eventually settle an uncertain point of constitutional law. One historical example that I have always had a hard time explaining in this framework is the Civil War's settlement of the constitutionality of secession. Here, it looks as if the constitutional question was settled in one very big episode, rather than a series of decisions as liquidation would require.

But after reading Nicoletti's fascinating narrative, I think that the process was closer to liquidation than I realized. Nicoletti shows that the constitutionality of secession was not quite so settled after the war, which is why subsequent episodes like Davis's treason trial made Unionists so nervous, and why various decisions and debates after the war were still important for the secession issue. Unionists invoked the tradition of "trial by battle" to explain how war could settle a point of constitutional law, but perhaps the reason they had to do so, and that the analogy had so much drama, was because it in fact required a longer course of practice before the issue was settled.

Rep. Matt Gaetz called out James Comey for having "selective amnesia" with any facts that are favorable to President Trump.

Judicial Watch President Tom Fitton called out former FBI Director James Comey for responding “I don’t know” or “I don’t remember” to dozens of questions concerning key details in the Russia probe.

Lisa Boothe said on "Next Revolution" that prospective candidates for the White House chief of staff position may be hesitant to join President Trump's inner circle right now.

President Trump on Monday denied that hush-money payments to adult film star Stormy Daniels and Playboy model Karen McDougal in the weeks leading up to the 2016 election were campaign contributions, instead calling them a "simple private transaction.”

And it's good.

[Contrary to the view of some, this is not what happens when California courts use the law of a foreign country -- even when it is based on Islamic law -- under normal choice-of-law principles.]

[A.] First, a bit of background: Say that I live in Oklahoma, and work at a plant in Oklahoma, where I'm exposed to some injurious chemicals (say, asbestos). Some years later, I move to California and then get sick, allegedly because of this exposure.

I sue in California court -- a logical place, since this is where now I live, and (let's assume) where the defendants have their principal place of business, so it's not unfair to subject them to California courts' jurisdiction. But California tort law is considerably more plaintiff-friendly than Oklahoma tort law in various ways. Should California courts decide the case applying California law or Oklahoma law?

Generally speaking (though with some potential exceptions), the answer is Oklahoma law, as the California Supreme Court held in McCann v. Foster Wheeler LLC (Cal. 1994). (Most other states take the same view.) Businesses that are dealing with Oklahomans in Oklahoma should be able to rely on their conduct being evaluated under Oklahoma law, regardless of where the Oklahomans might later move. And Oklahoma courts and legislators should be able to assure businesses that, if they locate in Oklahoma, they will be subject to the Oklahoma-specified standards of liability (as modified by federal law, if federal law applies):

Because a commercial entity protected by [a particular Oklahoma statute] has no way of knowing or controlling where a potential plaintiff may move in the future, subjecting such a defendant to a different rule of law based upon the law of a state to which a potential plaintiff ultimately may move would significantly undermine Oklahoma's interest in establishing a reliable rule of law governing a business's potential liability for conduct undertaken in Oklahoma.

The same applies if I'm a Frenchman working in France, or a Dominican Republic citizen working in the Dominican Republic. (McCann favorably cites cases involving conduct in both countries.) California courts would have to then apply French law or Dominican Republic law -- that may not always be easy, since the laws are unfamiliar and in a foreign language, but courts would be able to consult experts or treatises, and do the best they can. Indeed, foreign law will often apply even when a tort is committed against a California citizen in a foreign country, but the matter is more complex there, which is why I'm focusing in this post on a tort committed against a foreign country's citizen in that country.

[B.] In late October, a California court applied the same approach with regard to Iranian law, and I think the decision is a very good illustration of how these things should be done. (The case has only recently hit the news, and I learned about it thanks to Blaise Scemama of the L.A. Daily Journal.) Here is the heart of the decision, titled "Ruling on Iranian Law," Sabetian v. Air & Liquid Sys. Corp. (L.A. Superior Ct. Oct. 24, 2018):

Plaintiffs allege Houshang Sabetian suffered asbestos exposures while working at oil refineries and oil fields in Iran from 1959 to 1979. The refineries and oil fields were owned by the Iranian Government.

At issue here are two motions to apply Iranian law filed by Foster Wheeler, LLC, Exxon Mobil Corporation, and ExxonMobil Oil Corporation. The motions seek application of Iranian law to the negligence standard of care, strict liability, joint and several liability, compensatory damages, and punitive damages....

The court cited the McCann v. Foster Wheeler case I discussed above, and concluded that it should generally apply Iranian law, because "the state [or country] where the tort occurs possesses the predominant interest in having its law applied," especially when the plaintiff was a citizen of that state or country at the time the tort was committed. It then went on to discuss the particular legal rules that might be relevant:

While [Iranian] laws differ in some ways from those of California, they do not seem out of touch with laws for compensation in other Civil Law jurisdictions. Moreover, the Government of Iran would have had a strong interest in applying its own laws to a refinery it owned and an employee that it employed. At the time of his alleged exposure to asbestos, Mr. Sabetian and his wife were citizens of Iran, and he worked for the Iranian-owned National Iranian Oil Company.... California has little interest in legislating behavior at such refineries and oil fields.

The greatest difficulty in applying Iranian law in this case ... is presented by the differences in language and the two systems, and the comparatively lesser development of Iranian law in the context of a jury trial. Moreover, the Court is naturally impaired in understanding the law of a foreign jurisdiction. The Court will address each question as to which the Defendants seek to apply Iranian law.

[1.] Negligence Standard of Care. The competing experts seem to agree that Iran's standard of care is based on "custom and usage," rather than the reasonable person standard as articulated in CACI Instruction 401. Nevertheless, the Court declines to apply this aspect of Iranian Law. Although it is boldly and clearly stated in Iran's Civil Code, there is a lack of authoritative decisional or explicative law that could explain just what is meant by "custom and usage." Does this mean the "custom and usage" of the reasonably careful person, or the reasonably careful oil professional in Iran? Can the custom and usage of the industry worldwide be considered? The evidence does not present a clear enough distinction to formulate jury instructions that will provide answers to these and other questions under Iranian law. While resort could be had to a treatises on Iranian law, the Court is not comfortable placing as great a reliance on such treatises as Iranian lawyers apparently do. The Court therefore declines to apply this aspect of Iranian law.

[2.] Strict Liability. Defendants' expert ... establishes that there is no strict liability in Iran, certainly not during the relevant time period. Plaintiffs' expert does not present persuasive contrary evidence. The Court can apply this law by not submitting strict liability claims to the jury. The Court accepts this application of Iranian law.

[3.] Joint and Several Liability. [Both sides' experts] seem in agreement that Iranian law does not provide for joint and several liability unless there is an explicit statutory exception. [Plaintiff's expert] argues that the there is an explicit statutory exception for persons determined to be "employers" under the Civil Responsibility Act, and this is not disputed by Defendants. It seems practical for the Court to make a post-verdict determination of whether there has been a showing of whether any of the Defendants were joint "employers" such that this provision comes into play. The Court accepts this application of Iranian law.

[4.] Punitive Damages. The Court is persuaded by [the defense expert's] declaration that Iranian law does not provide for punitive damages. [Plaintiff's expert's] contrary opinion appears to speculate about bilateral treaties affecting this determination, but he does not offer concrete evidence of a treaty that would affect [this] case. The Court accepts this application of Iranian law.

[5.] Monetary Limit on General Damages. Although the experts do not appear in disagreement that there is some sort of monetary cap on general damages, the Court declines to apply it in this case. Apparently the cap is set by reference to a memorandum prepared by unnamed Iranian government lawyers who have the power to alter the cap as they see fit. Defendants did not produce a sample determination for the Court, leaving the Court in doubt as to what the cap was and how it is determined. The cap also varies by season of the year. As such, the Court is left unsure that the cap is not so arbitrary in nature and application that it would offend fundamental due process if applied in an American court.

[6.] Prohibition on Loss of Consortium Damages. The Court was initially concerned that this limitation might also violate fundamental due process because it was applied in a manner that arbitrarily limited damages by sex. At the hearing, defense counsel persuasively argued that a prohibition on loss of consortium could apply to either sex. Nevertheless, the Court is worried that Iran does not neatly define loss of consortium in the same way that California does, and that the damages could be considered in other categories under Iranian law. Therefore, the Court finds that this prohibition is not established with sufficient clarity in Iranian law to allow for application in this case....

Where the Court is unable to ascertain Iranian law with clarity, the Court will apply California law based on California's interest as the forum state.

The Court is cognizant that this ruling differs from prior rulings in this JCCP [Judicial Council Coordination Proceeding, a set of related cases that are being litigated before different judges]. While prior courts were worried about the religious influence on Iranian law, these provisions of law appear well-established, civil, and secular in nature. All laws of civil redress have root in some religious tradition, and these laws do not radically or offensively differ from traditions in the law of the various United States.

The Court considers the question of whether to apply Iranian law to be a separate question of whether there would be a remedy for Mr. Sabetian in Iran....

I think this is generally the right approach, though, as the judge points out, some other decisions have rejected the use of Iranian law. As I wrote in late 2014,

Los Angeles Superior Court Judge Emilie Elias, however, has recently concluded that this doesn't apply when the foreign law is the law of Iran -- and the rationale potentially applies to other countries that use Islamic law, including Saudi Arabia, the United Arab Emirates, Qatar and others. In Alkhas v. A.W. Chesterton Co., and, most recently, Sarooie v. Foster Wheeler, the judge reasoned that (1) because Iranian law partly incorporates Islamic law, California courts may not apply it, and (2) because "Iran is run by mullahs and lacks an independent judiciary and due process of law," Iranian law should not even be applied in California courts. Rationale 1 would squarely apply to Saudi law; rationale 2 might, too, especially since the judge stresses that the concern behind rationale 2 remains that "Iranian law, through utilization of Islamic law, fails to afford a remedy."

For an amicus brief that several law professors and I filed back then, arguing in favor of the result that the judge in Sabetian has now reached (and against the result in the Alkhas and Sarooie cases), see the last portion of my 2014 post. The amicus brief supported appellate reversal of the Sarooie case, but the Court of Appeal declined to review that order, I think likely because it was just a pretrial decision; perhaps the Sabetian case will eventually go up on appeal, and we might get an appellate decision resolving the controversy.

mine is The Player of Games, by Iain Banks

Every year, the University of Chicago Law School asks the faculty for some of our holiday reading recommendations. I usually try to recommend one fiction and one non-fiction book, but this year I'd succumbed to several months of readers' block (not completely unrelated to being the father to a new toddler...) and thought I would have neither. But in the nick of time, I found a fiction recommendation:

Iain M. Banks, The Player of Games

The main character is a world famous game-player who is lured away from his home to play a game so complicated that a multi-planet empire has been constructed around it. Political intrigue, personal intrigue, principal-agent problems, and other forms of game theory ensue, though we never learn the details of this or any game. The book also serves as an introduction to Banks's Culture series, a set of science fiction books set in a post-scarcity society where humans live satisfied but boring lives while artificial intelligence handles the strategic planning. This novel is so captivating that it helped break me out of a several month period of reader's block.

You can click here for the rest from my colleagues.

(A new post on a non-fiction recommendation should be coming soon...)

Rep. Adam Schiff, widely expected to take over the House Intelligence Committee next year, said Sunday that President Trump "faces the very real prospect of jail time" once he leaves office.

Former Trump campaign manager Corey Lewandowski dismissed a recorded claim by ex-FBI Director Jim Comey that he is not personally close with special counsel Robert Mueller.

In response to the controversy over the 1949 Dean Martin classic "Baby, It's Cold Outside," Greg Gutfeld came up with a new album for Christmastime that's "guaranteed not to offend anyone."

Over the past few decades, secularists and leftists have mounted an aggressive effort to suppress Christianity's historical and current importance in America, and place all religions — or no religion — on the same level.

House Oversight Committee member Raja Krishnamoorthi said on "Sunday Morning Futures" that ex-FBI Director James Comey "came across as consistent, compelling and careful in his answers" to a joint committee's closed-door session with him this week.

Outgoing House Judiciary Committee Chairman Bob Goodlatte said Sunday it was "truly stunning" to hear the former FBI director claim he doesn't know or "can't recall" answers to nearly 250 questions about the Trump-Russia probe and the Clinton email investigation.

Jerry Falwell Jr., son of the late evangelist Rev. Jerry Falwell, joined Jesse Watters on "Watters' World" Saturday to react to the latest outrage directed at Christmas art and tradition.

Further explication of our ongoing disagreement concerning the scope and conduct of the Mueller investigation.

Last week, I published a post [here] criticizing the comments that Alan Dershowitz had made in a Fox News interview [here] concerning the Michael Cohen guilty pleas. Prof. Dershowitz responded to my post [here], chiding me for, among other things, "deliberately failing to quote" from his more extensive op-ed dealing with these issues [here]. I noted, parenthetically, that I hadn't quoted or cited Dershowitz' op-ed because I was unaware of its existence.

I would have been content to leave the matter there, but Prof. Dershowitz has again taken issue with what I wrote.

"It's no excuse that Post was unaware of my oped on the subject. Tom Brady would have done a bit of research - a simple Google search - before leveling an unfair attack based on an out-of-context TV snippet. I want the debate to be live so that the public can judge who is Willie Mays and who is Tom Brady. The only time ageists comment on my advanced age is when they disagree with conclusions and don't have good responses on the me merits."

First, let me be clear that I wasn't commenting on Prof. Dershowitz' age, any more than I was commenting on Willie Mays' age, in the original post; I was commenting on his performance in public view - on the field, as it were.

Second: I do not agree that I should have searched for and consulted his op-ed - or any of this other writings, for that matter - before writing the original post. I don't buy it. He said what he said, and an audience of many millions of people - no more than a handful of whom, surely, had read his op-ed - heard what he said. For the vast majority of those viewers, then, that is his contribution to the public debate on these matters. I hardly think it is unfair to base my criticism of what he said on what he said.

I am not unaware that it can be difficult to summarize complicated legal arguments in a sound bite or snippet. But that is just the risk you take when you voluntarily inject yourself into the public debate via TV interviews and sound bite snippets. Certainly, in the pressure of the moment, anyone may say things that are incorrect and/or misleading; I've done it myself. But the correct response in that case is a retraction, perhaps accompanied by an explanation or even an apology, not "Go read my other stuff and you'll see what I meant to say."

Third: "Read the op-ed," Prof. Dershowitz wrote, "and respond to that." Fine - I did, and I shall. I don't believe it strengthens Dershowitz' case.

"It was always an uphill struggle for Mueller, since collusion itself is not a crime. In other words, even if he could show that individuals in the Trump campaign had colluded with Russian agents to help elect Trump, that would be a serious political sin, but not a federal crime. Even if Mueller could prove that members of the Trump team had colluded with Julian Assange to use material that Assange had unlawfully obtained, that, too, would not be a crime. What would be a crime is something that no one claims happened: namely, that members of the Trump campaign told Assange to hack the Democratic National Committee before Assange did so. Merely using the product of an already committed theft of information is not a crime." (emphasis added)

That is incorrect. To be sure, "collusion" (whatever it may mean, precisely), or using stolen information, is not always a crime. But that's not what he said; he said - three times in one paragraph - that it is not a crime when in fact, in certain circumstances, it may well be. And we don't yet know, because Mueller has not completed his investigation, whether those circumstances did, or did not, pertain in connection with the 2016 election.

I can think of any number of very plausible "collusion" scenarios, based on (and consistent with) everything we now know about the actions of Trump campaign officials during the 2016 campaign, that would indeed constitute federal and/or state crimes. For instance:

It is unlawful for foreign nationals (and, by extension, foreign governments) to contribute, directly or indictly, "anything of value" in connection with a federal, state, or local election, and it is unlawful for anyone to "solicit, accept, or receive" such a contribution. 52 USC § 30121.

The Economic Espionage Act makes it a federal crime for anyone who "receives, buys, or possesses a trade secret, knowing the same to have been stolen or appropriated, obtained, or converted without authorization" if he or she "intend[ed] or kn[ew] that the offense will benefit any foreign government, foreign instrumentality, or foreign agent." 18 USC 1831.

It is a federal crime for any person "who acts as an agent, representative, employee, or servant, or any person who acts in any other capacity at the order, request, or under the direction or control, of a foreign principal or of a person any of whose activities are directly or indirectly supervised, directed, controlled, financed, or subsidized in whole or in major part by a foreign principal," to "engage within the United States in political activities for or in the interests of such foreign principal" or to "act as ... a political consultant for or in the interests of such foreign principal" or to "solicit, collect, disburse, or dispense contributions, loans, money, or other things of value for or in the interest of such foreign principal" without registering as a foreign agent with the DOJ. 22 USC § 611, 612.

It is a federal crime for anyone to "receive, possess, conceal, store, barter, sell, or dispose" of any "goods, wares, or merchandise, ... which have crossed a State or United States boundary after being stolen, unlawfully converted, or taken, knowing the same to have been stolen, unlawfully converted, or taken." 18 USC § 2315

It is a federal crime to "knowingly steal, ... or obtain by fraud, artifice, or deception" any "trade secret that is related to a ,,, service used in or intended for use in interstate or foreign commerce," intending or knowing that the offense will, injure any owner of that trade secret> It is also unlawful to "receive, buy, or possess such information, knowing the same to have been stolen or appropriated, obtained, or converted without authorization," and to "conspire with one or more other persons to commit" any of these offenses. 18 U.S.C.S. § 1832

It is a federal crime to "intentionally access without authorization" a computer "which is used in or affecting interstate or foreign commerce or communication" and obtaining information thereby, as well as accessing such computer "knowingly and with intent to defraud ... and by means of such conduct furthers the intended fraud and obtains anything of value> 18 USC § 1030 et seq.

And that is just for starters, off the top of my head; there could well be additional crimes involved in conspiracies to accomplish any or all of the above. And the larger question of whether the Trump campaign was a "Racketeering Enterprise" under RICO.

Let me be clear: I am not saying that we know, at this point, whether these crimes have been committed. I don't know, and Prof. Dershowitz doesn't know, what facts Mueller has uncovered regarding what transpired during the many meetings and phone calls that now appear to have taken place between Cohen, Manafort, Roger Stone, Julian Assange, Donald Trump Jr., etc. etc. and agents of the Russian government in connection with the Wikileaks release of stolen DNC emails, and whether those contacts satisfy the elements of these violations.

But to say - as Dershowitz has said - that whatever happened, it was at most a "political sin" and not a federal crime is bizarre, irresponsible, and incorrect.

One final point. Prof. Dershowitz' op-ed also contained this:

"It is important to note that Special Counsel Robert Mueller does not have a roving commission to ferret out political sin, to provoke new crimes, or to publish non-criminal conclusions that may be embarrassing to the President. His mandate, like that of every other prosecutor, is to uncover past crimes. In Mueller's case those crimes must relate to Russia."

That also is incorrect. Mueller's mandate is spelled out, quite clearly, in his appointment letter [here]: In order to "discharge the [DOJ's] responsibilty to ensure a full and thorough investigation of the Russian government's efforts to interfere in the 2016 presidential election," Mueller was expressly authorized to conduct an investigation into "any links and/or coordination between the Russian government and individuals associated with the campaign of Donald Trump" (emphasis added). That is a considerably broader mandate than one limited to "uncover[ing] past crimes." Indeed, Prof. Dershowitz' own argument - that using information that was known to have been unlawfully obtained by a foreign government and which was being made available, in secret transactions, for the express purpose of influencing an American presidential election isn't a crime! - shows how much broader Mueller's mandate actually is.

I'd like to know if that actually happened, crime or no crime: did Trump campaign officials in fact use information that was known to have been unlawfully obtained by a foreign government and which they knew was being made available to them via secret transactions for the express purpose of influencing an American presidential election? And thankfully, that - and not Prof. Dershowitz' imagined mandate - is precisely what the American people, through our Department of Justice, have authorized Mueller to figure out as best he can. What the hell was going on? Were there "any links and/or coordination between the Russian government and individuals associated with the campaign of Donald Trump"? And if there were, what were they, and how did they operate, and for what purpose? It may turn out to be profoundly important for the future of this country that we have authorized an investigation to help us figure that out.

But Prof. Dershowitz' has mischaracterized all that for his viewers and readers. They would conclude - reasonably enough, based on Prof. Dershowitz' mischaracterization of the mandate - that the Mueller investigation will have somehow "failed" if it produces nothing more than uncover "political sins" and not indictable crimes. That is false, and it is pernicious.

In her Opening Statement on Saturday evening, Judge Jeanine Pirro said that the anti-Trump left should "fold up their fantasy tents" and go home when it comes to the Russia investigation.

Pete Hegseth blasted NBC News political director Chuck Todd Sunday for calling Trump voters "gullible" and questioning whether they are unable to "discern the BS from the non-BS."

Zoning rules that severely restrict home construction cut off millions of poor people from jobs and affordable housing. The Minneapolis reform is the most extensive reduction in zoning achieved by any major American city in a long time.

Yesterday, the City of Minneapolis struck a major blow for both property rights and affordable housing by enacting the most extensive reduction in zoning restrictions adopted by any major US city for a long time. Henry Grabar of Slate summarizes this welcome development:

Minneapolis will become the first major U.S. city to end single-family home zoning, a policy that has done as much as any to entrench segregation, high housing costs, and sprawl as the American urban paradigm over the past century.

On Friday, the City Council passed Minneapolis 2040, a comprehensive plan to permit three-family homes in the city's residential neighborhoods, abolish parking minimums for all new construction, and allow high-density buildings along transit corridors.

"Large swaths of our city are exclusively zoned for single-family homes, so unless you have the ability to build a very large home on a very large lot, you can't live in the neighborhood," Minneapolis Mayor Jacob Frey told me this week. Single-family home zoning was devised as a legal way to keep black Americans and other minorities from moving into certain neighborhoods, and it still functions as an effective barrier today. Abolishing restrictive zoning, the mayor said, was part of a general consensus that the city ought to begin to mend the damage wrought in pursuit of segregation. Human diversity—which nearly everyone in this staunchly liberal city would say is a good thing—only goes as far as the housing stock...

A lot of research has been done on the history that's led us to this point," said Cam Gordon, a city councilman who represents the Second Ward, which includes the University of Minnesota's flagship campus. "That history helped people realize that the way the city is set up right now is based on this government-endorsed and sanctioned racist system."

Kriston Capps of City Lab writes that "Minneapolis 2040 is the most ambitious upzoning guide yet passed by an American city." Some 75 percent of city residents live in areas where single-family zoning restrictions currently apply.

The case for cutting back on zoning restrictions unites economists and housing policy experts across the political spectrum. That includes both pro-free market experts and prominent left-liberals such as Nobel Prize-winning economist Paul Krugman, Matthew Yglesias of Vox, Yale Law School Professor David Schleicher, and Jason Furman, Chair of President Obama's Council of Economic Advisers. In addition to greatly increasing housing costs, zoning also cuts off many poor and lower-middle class Americans from valuable job opportunities, thereby also greatly reducing economic growth. As Grabar points out, many zoning restrictions (including many single-family home rules of the sort repealed by Minneapolis) were enacted in large part because of a desire to exclude African-Americans and other minorities. Minneapolis Mayor Jacob Frey notes that "Minneapolis has a long history going back 100 years of redlining and intentional segregation. We literally have maps at the city that identify north Minneapolis as a slum for blacks and Jews." Both liberals concerned about expanding opportunities for the poor and racial minorities, and conservative and libertarian property rights advocates have good reason to support abolishing zoning rules that make it difficult or impossible to build new multifamily housing in many major cities.

Up until now, however, most reform efforts have been stymied by a combination of public ignorance, interest group pressure, and NIMBYism. Earlier this year, for example, the California state legislature defeated Bill 827, a reform effort that would have greatly expanded the availability of housing in a state that has particularly onerous zoning restrictions. Sadly, liberal Democratic cities ruled by political coalitions supposedly committed to helping the poor have some of the nation's most severe zoning rules, thereby cutting off many of the poor from both housing and jobs. Affordable housing advocate Shane Phillips has rightly highlighted the "disconnect between liberal aspirations and liberal housing policy."

Minneapolis' new plan is a welcome break from this sad state of affairs. Having criticized other blue jurisdictions for their failure on this issue, it is only fair that I give full credit to Minneapolis' overwhelmingly liberal Democratic city government for achieving a major breakthrough. Policy experts and other reform advocates would do well to study the Minneapolis effort to see if it contains any insights on how to achieve similar progress elsewhere. Kriston Capps' City Lab post includes an interview with Minneapolis Mayor Jacob Frey discussing how the plan came about, though he offers few specifics on what he and his allies did that differed from less successful efforts elsewhere.

Bret Baier called in to "America's News HQ" Saturday to react to the news that White House Chief of Staff John Kelly is leaving his post at the end of the year.

Rep. Kevin Brady discussed the threat of a government shutdown on "Cavuto Live" Saturday, saying it all comes down to which wing of the Democratic Party has control of Nancy Pelosi.

Rep. Jerrold Nadler (D-N.Y.), the incoming chairman of the House Judiciary Committee, said he will shut down Republican-led probes into the FBI and Justice Department's decision-making during the 2016 election.

Rep. Matt Gaetz blasted James Comey for having "selective amnesia" during his closed-door testimony before the House Judiciary Committee.

Alan Dershowitz joined the "Fox & Friends" co-hosts Saturday morning to share his key takeaways from Special Counsel Robert Mueller's court filings.

Nigel Farage said the violent protests that have broken out across France are a sign of the growing disconnect between the country's citizens and its elites.

Tucker Carlson had some strong words for Nancy Pelosi after the likely incoming House Speaker took a hard line on President Trump's long-promised border wall, which she called "immoral, ineffective and expensive."

Few will agree with Cambridge political scientist David Runciman's proposal to lower the voting age to 6. But standard reasons for rejecting the idea raise serious questions about many adult voters, too.

Prominent British political scientist David Runciman argues that the voting age should be lowered to six, in order to correct what he considers to be a serious age bias in modern democracy, where children's interests are increasingly neglected in favor of those of the elderly, who wield vastly greater political power:

The head of politics at Cambridge University has called for children as young as six to be given the vote in an attempt to tackle the age bias in modern democracy.

Prof David Runciman said the ageing population meant young people were now "massively outnumbered", creating a democratic crisis and an inbuilt bias against governments that plan for the future.

In the latest episode of his podcast, Talking Politics, he said lowering the voting age to 16 was not radical enough to address the problem.

He said: "I would lower the voting age to six, not 16. And I'm serious about that. I would want people who vote to be able to read, so I would exclude reception [age-children].

"What's the worst that could happen? At least it would be exciting, it would make elections more fun. It is never going to happen in a million years but as a way of capturing just how structurally unbalanced our democracies have become, seriously, why not? Why not six-year-olds?

Runciman added: "Old people are currently the coalition that have a huge inbuilt advantage in representative democratic politics.

"Young people are massively outnumbered because the voting age is 18, whereas there isn't a cutoff point at the other end. You don't lose the vote when you get to be 75. You can carry on voting until the day you die and there is no test. You could be frankly demented and still get to vote, which is as it should be. So young people are the losers here...."

He argued that if the voting age was not lowered, politics would be left to "people who aren't going to live into the future and can just care about the present."

It's easy to mock Runciman's idea and dismiss it out of hand. Even he himself admits that it "is never going to happen in a million years." There are a number of flaws in his reasoning. For example, it is far from clear that older voters care less about the future than very young ones. Many of the elderly have children and grandchildren whose future welfare they likely care about a great deal. By contrast, very few children - especially those as young as six - have children of their own. In addition, Runciman's implicit assumption that voters make decisions based on narrow self-interest is largely wrong. For what it's worth, I too reject the idea that we should let six year olds vote. Ditto for most other children.

But when we try to explain why children should not be allowed to vote, it turns out that all the plausible answers have disturbing implications: they all imply that a good many adults also should be excluded from the franchise. Despite some mistakes in his reasoning, Runciman has a point. He is not wrong to suggest that children have a strong interest in electoral outcomes, and that standard democratic theory implies all citizens with such an interest should - at least presumptively - have a say in deciding who controls the government.

Consider the most obvious justification for denying children the vote: that they are too ignorant to make good decisions. This is likely true, at least for the majority of them. But it also true of large numbers of adult voters. Political ignorance is widespread among the latter. A 2017 Pew survey found that only 26 percent of adult Americans can even name the three branches of government. Another recent study finds that only 36 percent could pass the simple civics test immigrants must take to become citizens.

And these examples are just the tip of a vast iceberg of adult voter ignorance. A large percentage of adult voters probably know less about government than a smart grade schooler who remembers what she learned in a basic history or social studies class. Indeed, given the very low likelihood that any one vote will influence electoral outcomes, it is actually rational for most people to devote little time and effort to acquiring political information.

Perhaps the real reason why children should be denied the franchise is not lack of knowledge, but their poor judgment and immaturity. Of course many adults also have poor judgment and lack maturity. Consider the current president of the United States, who is "undisciplined" and "doesn't like to read," and whose own staff often manage him as if they are babysitting an unruly toddler. If children should be denied the vote because they lack judgment and maturity, why not the many adults who lack those same qualities?

Maybe the problem with child-voters is that they don't have the benefit of various adult experiences, such as working at a job, raising a family, paying taxes, or running a business. I am actually skeptical that these are as important for making good voting decisions as knowledge of government and public policy. But if I'm wrong about that, then we have to reckon with the fact that numerous adults also lack these experiences. Conversely a good many children do in fact have some of them, most notably working at jobs, or even - in some cases - helping to run a family business.

Another standard justification for denying children the vote is that they are too easily influenced by adults. Many might just vote whichever way their parents tell them. Of course, the same thing is true of many adults. Their political views are also heavily influenced by friends or family members. Historically, one of the standard justifications for denying women the vote was that they would just follow the dictates of their husbands or fathers.

More recently, Hillary Clinton famously claimed that she lost the 2016 election in large part because many white women voted against her as a result of pressure from their spouses. Some scholars argue that social science evidence supports her claims. Regardless, it's hard to deny that many people's political views and voting decisions are influenced by parents, spouses, and other family members, and that this influence is strong even with many adults.

Finally, it is sometimes argued the disenfranchising children is no big deal, because it is only temporary. They will get the vote as soon as they turn 18 (or whatever the minimum voting age is). But children who were denied the vote in 2016 and this year, are going to be massively affected by the decisions made by the winners of these elections, often in ways that are difficult or impossible to reverse. And, of course, the exclusion of adults who lack necessary political knowledge or don't have some form of relevant life experience might also be temporary. It could be ended as soon as they show they have met minimum levels of political knowledge or obtained the right type of life experience.

With respect to most of these potential criteria for the franchise, children are, on average more likely to fall short than adults. But if statistical aggegates are enough to deny the vote to all children (including those who are exceptions to the pattern), why not to subsets of the adult population that also have an unusually high likelihood of falling short of our standards? Runciman, for example, points out that the elderly have a higher incidence of senile dementia than younger people, which might in turn reduce the average quality of their voting decisions. Data suggest that the poor, on average, have lower levels of political knowledge than more affluent voters. And so on.

Some political theorists argue that the quality of voters' decisions don't matter, or at least not enough to justify denying anyone the franchise. All that is important is that citizens have the right to exercise the franchise freely. They are then entitled to decide as they wish, regardless of whether their choices are well-informed or otherwise reflect good judgment. I disagree. But if such "pure proceduralist" justifications for democracy are valid, then we really have no good reason to deny children the franchise. If quality of decision-making is irrelevant for adult voters, why not children, as well?

The easiest way to reconcile standard justifications for denying the vote to children with the way we treat adult voters is to subject both children and adults to the same standards: before being allowed to vote, all should be required to prove they have a minimum level of political knowledge, judgment and maturity, or whatever other qualities are essential to being a good voter. This idea leads to something like Jason Brennan's theory of "epistocracy" - the "rule of the knowers." Competence, not age, would determine eligibility for the franchise. And that franchise need not be reserved to just a small elite. Depending on what kinds of standards are set, many millions of people would still be able to vote, including some children who are currently barred.

Unfortunately, I doubt that real-world governments can be trusted to either come up with good criteria for an epistocratic franchise, or apply them in an unbiased fashion. That's why I am skeptical of proposals to establish a knowledge test for voters, even though I do not reject all such ideas as a matter of principle. At most, I am open to potentially expanding the franchise by including knowledgeable children. But I oppose the establishment of a universal testing system, which would create a much higher risk of abuse.

At least for a long time time to come, we are likely stuck with a system under which we deny children the vote for reasons that (often rightly) call into question the competence of numerous adult voters. This may be unavoidable. But it should make us more skeptical about the desirability of giving so much power to a political process heavily influenced by public ignorance. And it should lead us to be more open to proposals to limit and decentralize government power, so that more decisions can be made in a framework where people have better incentives to become informed and exercise good judgment.

George Washington University Law Professor Jonathan Turley reacted Friday to the release of a sentencing recommendation against ex-Trump attorney Michael Cohen and a heavily-redacted document from Special Counsel Robert Mueller’s prosecution team alleging former Trump campaign chairman Paul Manafort lied about contact with Trump White House officials and other matters.

Harvard Law Professor Emeritus Alan Dershowitz reacted to news that the U.S. Attorney's office for the Southern District of New York recommended a "substantial term of imprisonment" for former Trump private attorney Michael Cohen.

Former FBI Assistant Director Chris Swecker said former Director James Comey "thoroughly discredited" himself and "broke every rule in the book."

Obama-era CIA Director John Brennan blasted President Trump Friday on MSNBC, saying that the New York Republican is "incompetent" and is responding to the Khashoggi murder in an "unprincipled" manner because he "clearly likes people with money."

Body slams, reasonable retaliation, and Russian software.

Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice.

Last week, IJ argued civil forfeiture at the U.S. Supreme Court. This week, at the Pennsylvania Supreme Court, we argued municipalities shouldn't be able to ticket homeowners for something that's not prohibited—or even mentioned—in the zoning code. And we launched two new cases: a challenge to a Fort Pierce, Fla. law that bans food trucks from operating within 500 feet of a restaurant and a challenge to a Seattle ordinance that requires renters to allow city inspectors into their homes without a warrant. Good times.

• Kaspersky Lab makes antivirus software. It's also based in Russia, and its founder used to work for Russian intelligence. Which is why, in 2017, Congress thought it was maybe a bad idea for the federal government to keep using Kaspersky software. D.C. Circuit: And that is A-OK. This is obviously about national security, not punishing Kaspersky. The law doesn't run afoul of the rarely litigated "bill of attainder" clause of the Constitution, which prohibits Congress from passing laws to punish specific individuals.
• How do federal courts defer to law enforcement? The First Circuit will count the ways: Manchester, N.H., man's 5-to-15-second drive was detectably drunken? His car in a parking lot at midnight was a traffic hazard that needed to be searched and towed? His moving his hand to his hip was "indexing," a subconscious suggestion that there was contraband in the car? Check, check, and check. Conviction affirmed.
• Rensselaer County, N.Y. officer, Officer A, illegally accesses a confidential law enforcement database to stalk his ex-girlfriend's new paramour. Officer B (the ex-girlfriend's brother) reports Officer A's crime, triggering threats and reprisals from A and other gov't officials. Officer B sues for First Amendment retaliation. Second Circuit (over a dissent): It's only illegal retaliation if Officer A's crime was "a matter of public concern," and how could any of the retaliators have known whether it was? So qualified immunity for everyone.
• New Jersey bans firearm magazines that hold more than 10 rounds (except for retired cops). A Second Amendment violation? The Third Circuit says no; nobody needs more than two or three bullets for self-defense (except for retired cops). Dissent: "Intermediate scrutiny requires more concrete and specific proof before the government may restrict any constitutional right, period."
• This week, the Short Circuit team launched a new podcast series, Bound By Oath, on the Fourteenth Amendment. Episode One takes a look at the world before the Fourteenth through the story of John Rock, the first African-American admitted to the Supreme Court bar. Listen to it. Please.
• Newark, N.J. police can detain occupants of car that's illegally idling fewer than 25 feet from a crosswalk in a "high crime" area, says the Third Circuit. But a clever firearm enhancement on top of a firearm possession conviction? That's too clever by half.
• Charleston, W.Va. drug task force agent slaps a GPS tracker on a car without a warrant. Which is a "flagrant constitutional violation," says the Fourth Circuit, suppressing the evidence.
• Honduran man caught illegally re-entering the U.S. from Mexico after 2012 deportation. Feds: His sentence should be enhanced as he was convicted in 2006 of beating his brother-in-law to death with a baseball bat in Missouri. Fifth Circuit (panel): Our precedent requires us to declare that such a crime is not one of violence, so a sentence enhancement is inappropriate. Fifth Circuit (en banc): "It is high time for this court to take a mulligan" on this issue, and we overrule 15 years of precedent.
• Ocean Springs, Miss. officials pass resolution requiring that the state flag (complete with Confederate battle flag in its canton) be flown over the city hall and other government buildings. Nonprofit org and city residents sue under the Fair Housing Act, alleging that the flag illegally deters African-Americans from moving to the city. Can't sue over that, says the Fifth Circuit; exposure to the Mississippi state flag does not amount to an injury.
• The Seventh Circuit says the district court was too hasty in concluding that a challenge to Illinois' wine-shipping restrictions was barred by the 21st Amendment—though the court notes that the plaintiffs will have an uphill battle if a currently pending Supreme Court case doesn't go their way. (That Supreme Court case, Tennessee Wine & Spirits Retailers Association v. Blair, is an IJ case.)
• Illinois woman pleads guilty to charges related to drug manufacturing. A 2-decade-old felony conviction for drug possession in California triggers a recidivist enhancement that would double the five-year mandatory minimum. But wait! Before sentencing, a California state court reclassified the woman's previous conviction to a misdemeanor. So no enhancement, right? Seventh Circuit: Nice try, but reclassifying a crime doesn't change the historical fact that you were previously convicted of a felony. Ten years it is.
• Federal law criminalizes "encouraging or inducing" an alien to come to or remain in the U.S. (so long as the encourager knows of or recklessly disregards the fact that the alien will be doing so illegally). That, says the Ninth Circuit, looks a whole lot like a law criminalizing speech. Tons of speech, including, for example, a grandmother's saying to her undocumented grandson: "I encourage you to stay." The scenario actually before the court is far less sympathetic. (Mail fraud featured prominently.) But even so, the court concludes, the law's overbreadth makes it invalid under the First Amendment.
• Enthusiasts of locomotive-engineer chairs rejoice at the Tenth Circuit's 20-page opinion (complete with a photo) on whether injuries caused by one such chair give rise to strict liability on the part of the train company under the Federal Locomotive Inspection Act, an amendment to the Federal Employers' Liability Act. For the vanishingly few of you who don't want to read the opinion in full, the answer is: thumbs up to strict liability.
• Arrestee arrives at El Paso County, Colo. jail with a broken foot encased in a medical boot. Allegation: The jail's medical provider removed the boot, took away the arrestee's wheelchair and crutches. Forced to hobble, the arrestee suffers new fractures in his foot. Tenth Circuit: His suit can proceed against the medical provider individually (though not against her employer or the county).
• And in en banc news, the Eighth Circuit will reconsider its decision to grant qualified immunity to a Wymore, Neb. officer who body-slammed a 5-foot, 130-pound woman as she walked away from him. (Click here for local news. Click here for an amicus brief urging the court to grant rethink on qualified immunity.)

Attention 1Ls and 2Ls! Every summer, IJ hires the most reasoned and reasonable law students to work in our offices in Arlington, Austin, Miami, Minneapolis, Seattle, and Tempe. Fellows get an unparalleled opportunity to make an impact on IJ's cutting-edge constitutional litigation. Not only is the summer extremely substantive in terms of work product, but students also participate in intensive legal and communications trainings, attend seminars, and integrate fully into IJ's office and culture. Learn more about the program here and apply now.

Judicial Watch President Tom Fitton praised a federal judge who ordered an additional fact-finding mission into whether Hillary Clinton's use of a private email server was a deliberate effort to thwart the Freedom of Information Act of 1967.

The panel on "Outnumbered" discussed a top North Carolina congressman's claim that whistleblowers came forward to him about potential illicit activity at the Clinton Foundation.

Rep. Nancy Pelosi is digging in amid the fight over funding for President Trump's long-promised border wall, signaling Thursday she won’t accept a deal on DACA in exchange for wall money.

Newt Gingrich joined Bill Hemmer on "America's Newsroom" Friday to react to President Trump's picks for the next attorney general and U.N. ambassador.

The second season of the hit docu-series “Scandalous” continues Sunday night at 8:00pm ET on Fox News Channel. 

On "Fox & Friends" Friday morning, country music star John Rich shared a story about a memorable exchange he had with George H.W. Bush.

Legal expert Jonathan Turley joined the "Fox & Friends" co-hosts Friday morning to share insight on looming filings in Special Counsel Robert Mueller's investigation.

Rep. Trey Gowdy joined Shannon Bream on "Fox News @ Night" to preview former FBI Director James Comey's Friday testimony before the House Judiciary Committee.

Outgoing House Intelligence Committee Chairman Devin Nunes (R-Calif.) reacted to reports that a recently uncovered FBI email chain may show that the FISA warrant process was abused by officials seeking to collect intelligence on Trump associate Carter Page.

Mark Steyn blasted a Minnesota State University-Mankato professor who criticized the Biblical Christmas story as one in which God wrongfully "impregnated" St. Mary without "consent."

Everybody wants to go to heaven, the wise man observed, but nobody wants to die. It's not a puzzlement. Everybody wants kind and gentle in our politics, but nobody wants to risk losing an election. That's not such a puzzlement, either.

Juan Williams and former Bush adviser Karl Rove sparred over the qualifications of a top potential pick for U.S. Attorney General.

Christian Broadcasting Network anchor David Brody reacted to reports that President Trump is seriously considering former Attorney General Bill Barr to succeed Jeff Sessions and Matthew Whitaker in that same post.

Greg Gutfeld and "The Five" commented on the ongoing Mueller probe, into whether President Trump colluded with Russia to win the 2016 election.

1996 Republican presidential nominee Bob Dole recalled saluting friend and fellow World War II veteran George H.W. Bush one final time while the 41st commander-in-chief's body lay in state in the Capitol.

Tucker Carlson called out what he sees as hypocrisy on climate change by elites, such as Sen. Bernie Sanders (I-Vt.).

Rep. Andy Biggs on Thursday previewed James Comey's upcoming testimony before the House Judiciary Committee, saying lawmakers want to get to the bottom of the former FBI director's numerous "inconsistencies."

In a case I'm working on, Jeffrey Epstein's victims hope to set aside a non-prosecution agreement based on violations of their rights under the Crime Victims' Rights Act.

Recently the case of Jeffrey Epstein has been in the news, sparked by an impressive set of articles by the Miami Herald. In 2007, Epstein was accused of sexually molesting dozens of underage girls in Florida. In 2008, he reached a non-prosecution agreement (NPA) with the U.S. Attorney's Office for the Southern District of Florida, blocking prosecution of him for any federal sex offenses that he may have committed in exchange for his guilty plea to two low-level Florida crimes. Epstein ultimately spent about 13 months in jail, much of it on work release.

Meanwhile, in July 2008, Florida crime victims' attorney Brad Edwards and I challenged the NPA for two victims, arguing it was reached in violation of the Crime Victims Rights Act (CVRA). Because the matter continues to be litigated, I do not want to comment on the merits of the case. But the case has drawn considerable attention. For example, the case has already set an important precedent that victims' rights under the CVRA apply before charges are filed, as explained in this law review article. And as an example of more recent interest, yesterday Nebraska Senator Ben Sasse sent a letter to the Justice Department asking it to investigate its treatment of Jeffrey Epstein's victims. In light of this renewed interest in the case, a short blog post simply describing the legal posture of the crime victims' CVRA claims might be useful.

In July 2008, Edwards and I filed the lawsuit on behalf of two women whom the Justice Department has identified as having been sexually assasulted by Epstein when they were underage -- Jane Doe 1 and Jane Doe 2. The victims contend that the U.S. Attorney's Office for the Southern District of Florida executed the NPA while concealing what it was doing from Epstein's victims. The lawsuit has been through a number of twists and turns during the more than a decade it has been pending. But relevant to the current posture is that the victims' motion for summary judgment is pending. In that motion, the victims argue that the court should grant summary judgment on the issue of whether the U.S. Attorney's Office violated their rights under the CVRA by concealing the NPA from the victims. Here are some excerpts from the introduction to our 55-page motion:

In 2004, Congress enacted the CVRA because it found that in case after case "victims, and their families, were ignored, cast aside, and treated as non-participants in a critical event in their lives. They were kept in the dark by prosecutors too busy to care enough . . . and by a court system that simply did not have place for them." 150 CONG. REC. 7296 (2004) (statement ofSen. Feinstein). In passing the CVRA, Congress mandated a series of rights for crime victims. Sadly, several years later, when the Government began handling this case, it did precisely what Congress thought it had forbidden. The Government deliberately kept crime victims "in the dark" so that it could enter into a plea arrangement designed to prevent the victims from raising any objection. In doing so, the Government refused to afford victims the rights they had been promised by Congress—particularly "the right to reasonable, accurate, and timely notice of any public court proceeding," "the reasonable right to confer with the attorney for the Government in the case," and "the right to be treated with fairness and with respect for the victim's dignity and privacy."

The undisputed evidence begins in 2005, when the Palm Beach Police Department ("PBPD") had identified numerous girls as victims of Jeffrey Epstein's sexual crimes. In 2006, the PBPD turned the case over to federal authorities for further investigation. As early as March 15, 2007 and throughout the rest of the investigation, the United States Attorney's Office for the Southern District of Florida specifically identified several dozen girls whom it classified as "victims" under the CVRA. Once that identification was made, the Government was obligated to afford these victims certain rights under the CVRA—a fact of which the Government itself was well aware. Indeed, the Government provided notification to the girls that they were classified as "victims" under the CVRA.

But what the Government did not tell the victims lies at the heart of the case. It is undisputed that the Government did not tell the victims that, by May 2007, the Office hadprepared an 82-page prosecution memorandum and a 53-page indictment against Epstein and his co-conspirators. At that time, rather than confer with the victims about how to proceed, the Government began conferring about this issue exclusively with Epstein's counsel. Epstein's counsel contended that, despite abundant connection to interstate commerce, Epstein's sex trafficking was purely of local concern. By August 2007, federal prosecutors had disproven or rejected these defense arguments and notified the defense that all of the identified victims retained federal rights.

For example, during August 2007, Jane Doe 1, and other similarly situated victims, provided details to federal agents of the abuse that they endured at the hands of Epstein and his co-conspirators. In September 2007, without conferring with any of the victims, the Government and Epstein shifted gears and began working together to concoct a criminal charge for Epstein to plea to other than his sexual abuse of minors. As alternative charges, they discussed charging Epstein with: (1) various misdemeanors, (2) assaulting his co-conspirators and girlfriend, (3) using private investigators to chase and harass victims' families, (4) obstructions of grand jury subpoenas, or (5) his obstruction of the federal investigation when he instructed another coconspirator to lie to federal agents. Ultimately, however, none of those would work. Assistant U.S. Attorney ("AUSA") Marie Villafaña (the "line prosecutor") informed Epstein's counsel that she was getting pushback for creating a charge using one of the main co-conspirators as thevictim.6 Consequently, the Government and Epstein searched for another crime for Epstein to plead to, which could accompany a federal non-prosecution agreement (NPA). Incredibly, the offense to which Epstein and the Government ultimately agreed, labeled the minor victims "prostitutes."

The undisputed evidence clearly shows that by September 21, 2007, the line prosecutor had informed Palm Beach State Attorney Barry Krischer that a federal resolution had been reached by way of a NPA, yet the victims remained uninformed. On September 24, 2007, the NPA was signed, preventing prosecution of all federal crimes committed by Epstein and his coconspirators against the victims. After the signing of the NPA, the Government and Epstein's attorneys worked together to choose a lawyer to be paid by Epstein to represent Epstein's victims for the purpose of settling civil restitution claims. This too was all being done without the victims having any knowledge whatsoever. The correspondence between the Government and a candidate for that representative position as well as between the Government and Epstein's counsel reflects that the Government still had not yet disclosed the NPA to the victims, and was following the guidance of Epstein's counsel in making decisions with respect to the timing and substance of any communication to the victims.

For the next nine months, from the time the NPA was signed through the date of Epstein's state court plea in June of 2008, the Office—doing Epstein's bidding—assiduously concealed the NPA's existence from the victims. While this indulgent deal was incredible in its own right, even more extraordinary was how the victims were treated during the process. Ratherthan confer with the victims about the fact that resolution by NPA was ever being considered—or even tell them that it was already a signed deal—the Office and Epstein inserted a "confidentiality" provision into the agreement barring its disclosure to anyone, including the victims. There is no dispute that the Government did not inform the victims of the NPA or of the possibility of any such type of resolution. Consequently, there is no dispute that the Government did not afford the victims any rights before the signing of the NPA. . . .

In October 2007, after the NPA was signed, federal agents spoke with three of the more than 30 identified victims, including Jane Doe 1. The Government does not dispute that this contact only occurred after the signing of the NPA. Even more important, it is not disputed that this contact was: (1) made by the Federal Bureau of Investigation and not a "prosecutor for the Government," (2) that the FBI did not inform the victims of the NPA and certainly did not confer with the victims about the details of the NPA, and (3) that this contact only occurred with three of the more than 30 victims. Lastly, while the content of that conversation is contested, any stretched argument that the conversation satisfied CVRA requirements for Jane Doe 1 are belied by the timing of the conversation as well as the uncontested documentary evidence of the communications with the victims (including with Jane Doe 1) that followed that conversation.

Subsequent to the FBI's contact with three of Epstein's victims, the Government informed Epstein's attorneys that victim notification letters needed to be sent to all the victims pursuant to the CVRA. Rather than comply with this acknowledged requirement, Epstein's counsel convinced the Government that (contrary to standard Government practice) Epstein should be permitted to provide input into any message being delivered, and ultimately that the victims should not be told anything "until after Epstein pleas."

In January 2008, FBI agents again met with Jane Doe 1 and gathered additional details about Epstein's abuse as well as the direct sexual abuse by one of his co-conspirators, Nadia Marcinkova—who participated in the abuse of other victims as well. The Government then sent a victim notification letter to Jane Doe 1 informing her of her rights under the CVRA, that "this will be a long investigation," and to "be patient." Jane Doe 1 was sent a similar letter on June 7, 2008. Other victims were also sent these letters communicating that the Epstein case was an on-going active criminal investigation—not that the Government had already immunized Epstein for all federal crimes committed against each of the victims, through a NPA. These misleading letters were sent almost up until the date of Epstein's state court plea in late June 2008.

On June 30, 2008, Epstein pled guilty to state court charges. It is uncontested that the victims were not reasonably and accurately informed about that hearing—specifically, they were never told the hearing was part of a process that would extinguish any possibility of Epstein being prosecuted for the crimes he had committed against them in Florida. Even after the plea, the Government once again conferred with Epstein's attorneys to decide what to tell the victims.

As the Court is aware, this CVRA action was filed in July 2008 at a time when the victims mistakenly believed that the federal case remained open, and wanted to ensure that their rights under the CVRA were afforded before any possible federal disposition. At the emergency hearing on the Petition for Enforcement of Crime Victims' Rights Act, Jane Doe 1 and Jane Doe were in the courtroom to learn for the first time that the federal case had been resolved.

The undisputed facts show that for nine months, the Government and Epstein conspired to conceal the NPA from the victims to prevent them from voicing any objection, and to avoid the firestorm of controversy that would have arisen if it had become known that the Government was immunizing a politically-connected billionaire and all of his co-conspirators from prosecution of hundreds of federal sex crimes against minor girls. Such facts demonstrate clear violations of the CVRA's requirements that the Government afford victims the reasonable right to confer, the right to be treated with fairness, and the right to reasonable and accurate notice about court hearings. No genuine issue of material fact or law can exist on these points. The Court should accordingly grant summary judgment for the victims on the issue of the CVRA violations and then, in subsequent proceedings, turn to the issue of the proper remedy for those violations.

We filed the motion for summary judgment for Jane Doe 1 and Jane Doe 2 on February 10, 2016. The Government responded on June 6, 2017. Essentially the Government argued that it had no legal obligation to keep the victims' informed about what was happening. We replied in this reply brief on August 11, 2017. The government has also filed a cross-motion for summary judgment, which essentially reprises its arguments in our response to our motion.

Because the matter is pending before the Court, I won't add anything to what we have said in our pleadings. Obviously Edwards and I (recently joined by Florida attorney Jack Scarola) hope that the district court will grant our summary judgment motion, holding that this treatment of crime victims violates federal law.

Dana Loesch and Michelle Malkin appeared separately on "Fox & Friends" Thursday morning to blast Sen. Kirsten Gillibrand for a tweet that they deemed sexist.

Brit Hume weighed in Wednesday on Rush Limbaugh's contention that the media's praise for George H.W. Bush after his death has been "phony."

A former Pennsylvania police officer has been a big winner on "Jeopardy!" this week, and his impressive run included correctly answering a question about "Fox & Friends."

Janice Dean's morning weather report ended Thursday morning with a surprise proposal!

A few days ago, Ipublished a post criticizing the Prof. Alan Dershowitz' comments on the Michael Cohen guilty pleas and, more generally, on the Mueller investigation. Prof. Dershowitz has sent in a response, which I reprint here in full:

Post's ageist diatribe deliberately distorts my point because he doesn't agree
with my conclusion. I was pointing out the disturbing irony that Mueller was
appointed to uncover crimes committed by Americans relating to Russia that were
allegedly committed before his appointment.

Yet nearly all of his indictments and pleas relate to crimes that were allegedly
committed after his appointment, or financial crimes unrelated to Russia, or crimes
allegedly committed by Russians who are beyond the reach of our law, or
questionable crimes such as payments to women. Resorting to baseless ad
hominem attacks, Post mocks me and my academic affiliation by claiming that
"Dershowitz, invoking the magical powers that are often attributed to Harvard Law
School professors, believes" he knows what the Mueller report will conclude.

Of course, I do not know this. No one, except for Robert Mueller and his staff,
does. There may be more. But at the moment, from everything that we've come to
learn from Mueller and his associates' investigation and "successful" convictions,
they fall short of fulfilling the special counsel's original mandate. I make my point in
an op-ed that Post deliberately does not quote. [Gatestone]

Instead he quotes out of context a snippet from a TV appearance. Read the
op-ed, and respond to that.

I'm happy to debate the somewhat younger David Post and let the public
judge who is Willie Mays and who is Tom Brady.

[Just for the record: I 'deliberately' didn't quote Prof. Dershowitz' op-ed because I was unaware of it.

And a debate - possibly here on the VC? - sounds like an intriguing idea indeed.]

Bob Dole, whose final salute to George H.W. Bush was one of the most powerful moments of the week, will join "Your World with Neil Cavuto" TODAY at 4:00pm ET. 

The U.S. Secret Service is testing a new facial recognition program at the White House, supposedly simply to identify their own volunteer agents in the public areas in the vicinity of 1600 Pennsylvania Ave.

Newt Gingrich deemed Robert Mueller's Russia probe a "Trump Destruction Project" Wednesday after the special counsel released a memo stating Gen. Michael Flynn provided "substantial" help to investigators.

Barstool Sports founder Dave Portnoy said Wednesday that it was "ridiculous" that a former "Saturday Night Live" writer was booted from his stand-up comedy set because of jokes deemed "racist" and "homophobic."

Martha MacCallum and Jesse Watters discussed the controversy as to whether or not Hillary Clinton snubbed her electoral foe President Donald Trump at President George H.W. Bush's funeral service at the National Cathedral Wednesday.

This was the week when life made a good imitation of theater. Shakespeare would have found abundant drama, enough to inspire new masterpieces of history, tragedy and comedy.

Massachusetts Gov. Charlie Baker is seeking the temporary removal of a state judge from the bench after she allegedly helped an illegal immigrant evade Immigration and Customs Enforcement (ICE).

The panel on "The Five" reacted to Sen. Mazie Hirono (D-Hawaii) saying that the Democratic Party has a hard time connecting with voters because they "know so much" but must better-express emotion.

Charles Payne and his panel on "Your World" Wednesday debated President Trump's war of words with the United States Postal Service -- which he has criticized for its cozy relationship with online retailer Amazon.

Bush lost because voters punished him for the recession of the early 1990s - an event he did not cause. This is just one example of a broader phenomenon of voters rewarding and punishing politicians for things they do not control.

President George H.W. Bush, whose funeral is today, is now a much-admired figure on both sides of the political spectrum. But it wasn't always so. Although he achieved high approval ratings early in his administration, his popularity plummeted, and he suffered a painful defeat in his 1992 reelection bid.

Why did that happen? Pollsters and other experts overwhelmingly agree , as the Bill Clinton campaign famously put it, that it was "the economy, stupid." Voters punished Bush for the recession of the early 1990s, which came at exactly the right time to doom Bush's reelection prospects. Had it come a year earlier or a few years later, Bush would likely have won.

Dumping Bush because of the recession might have made sense if he and his policies had caused it. But few if any economists believe that to be the case. Rather, experts generally conclude that the cause was some combination of business cycle effects and trends in financial markets. Ultimately, Bush lost primarily because economically ignorant voters blamed him for an event he did not cause.

The 1992 election was not an isolated historical curiosity. Studies find that voters in both the United States and around the world routinely reward and punish incumbent politicians for events they have little or no control over, while often ignoring more subtle policy effects that the incumbents really are responsible for. Short-term trends in the economy are the most ubiquitous example. But they are far from the only one. Voters also reward and punish such events as droughts, shark attacks, and even local sports team victories.

The point here is not that the voters were necessarily wrong to reject Bush (or any other particular politician). In 1992, there were perfectly plausible reasons to believe that Bill Clinton, sex scandals notwithstanding, would be a better president than Bush. The real cause for concern is that in this case - and many others - voters deciding based on flawed criteria. That greatly increases the risk of error.

The problem is not just that the electorate might choose the "wrong" candidate out of those who get nominated by the major parties. It is also that it reduces the quality of the choices available to us in the first place. Knowing that they face a largely ignorant electorate, candidates and parties adopt platforms and campaign strategies that cater to that ignorance. In that respect, public ignorance helps ensure that we are all losers long before election day.

Rewarding and punishing politicians for short-term economic trends is an example of "retrospective voting" - making electoral decisions based on simple metrics of whether things seem to be going well or badly under the rule of the incumbent. Most voters know little about government and public policy, in large part because it is rational for them to devote little or no time to learning such information. As a result, they tend to rely on crude "information shortcuts" to make decisions, of which retrospective voting is one of the most commonly used. Unfortunately, such shortcuts are often unreliable, in part because their effective use can require knowledge that generally ignorant voters do not possess (in this case, knowledge of what outcomes incumbents really are responsible for).

There is no easy solution to the kind of public ignorance that doomed Bush in 1992 and impacts many other elections, as well. But we should at least be more aware of the problem, and recognize that it is a systemic flaw, not one limited to a particular election, or to voters on one side of the partisan divide.

In my own work on political ignorance, I argue that the most promising approach is limiting and decentralizing government power, thereby increasing opportunities for people to "vote with their feet," in which framework they have much stronger incentives to become well-informed than when making choices at the ballot box. But there are also other options worth considering, such as voter education initiatives, "sortition," and directly incentivizing citizens to increase their knowledge. As we remember George H.W. Bush and consider his legacy, we should also keep in mind the problem highlighted by his defeat in 1992, and begin to take it more seriously.

Snowball fights are back on in a northern Colorado town, thanks to the efforts of 9-year-old Dane Best.

Former Republican Sen. Alan Simpson drew lots of laughs with his eulogy of his longtime friend, George H.W. Bush, telling stories of the 41st president's trademark sense of humor.