Hillary Clinton, the Sixth Amendment, and Legal Ethics

For some time, Hillary Clinton's critics have been citing her defense of a 1975 rape case to attack her, and her defenders have been absolving her of any blame. Kathy Shelton — the victim1 in the case — has openly condemned Clinton and asserted that Clinton gratuitously attacked her, and others have criticized Clinton's description of the case from a recorded interview in the 1980s. The criticisms are (mostly) wrong and the defenses are (mostly) right.

A judge appointed Clinton to defend Tom Taylor, a man charged with rape of a minor in Arkansas. Many Clinton defenders emphasize that she was appointed by a judge and was not hired by Taylor and did not volunteer to defend him. It is regrettable that Clinton's defenders emphasize this, because it doesn't matter. Clinton's response ought not be "I was appointed and I didn't want the case"; it ought to be "you're goddamned right I defended my client." We're either committed to the Sixth Amendment's right to counsel or we're not. Criminal defendants, whatever they've been accused of doing, are individuals targeted by the vast, implacable machinery of the state. They are entitled to a vigorous defense. The purpose of that defense is to challenge the government and its evidence and act as a bulwark against the defendant being convicted simply because they've been accused. The right is not conditioned on whether or not we think they "actually did it" and not dependent on them being sympathetic or decent or deserving. Rather, the right is rooted in liberty (the recognition that the relationship between the accusing state and accused individual is inherently unbalanced and the individual requires an advocate to have any chance at all of fair treatment), skepticism and humility (the recognition that the state — and the mob — can easily be wrong, and that popular sentiment is a poor measure of whether someone is factually innocent), and a sort of grace. If you think that it's marginally acceptable to defend such people as long as you're not doing so voluntarily, you don't really support the Sixth Amendment right to counsel. You'd have lots of company on the Right and the Left, but you would not be supporting the United States Constitution.

(Incidentally, at the time Clinton was 27 years old and had quite limited criminal defense experience. She had taught criminal law and procedure, which is absolutely not the same as practicing it. She had never tried a criminal case. Yet she was appointed to represent a man on a very grave charge of child rape. That's the reality of indigent defense in America.)

Once appointed to the case, Clinton had a professional and ethical obligation to represent her client vigorously. That obligation made it appropriate — in fact, mandatory — to challenge the government's failure to preserve evidence (a portion of the victim's underwear) so that the defense could test it. That challenge probably induced the government to offer the defendant a plea to the lesser charge of unlawfully fondling a child under 14. It is not a "technicality" to hold the government to its obligation to preserve evidence so that the defense may test it. That is particularly true given the government's long-time fondness for junk science and rampant carelessness and even falsification of tests. Again, if you think it's wrong to challenge the government's failure to preserve evidence, you don't really support the right to a defense.

Clinton critics have also pointed out that she filed an affidavit in support of a motion seeking a psychiatric test of the victim in which she asserted that unnamed persons told her the victim was "emotionally unstable," displayed "stubbornness," and had made false accusations before. We don't know whether those allegations are true (the victim denies them) and we don't know whether Clinton told the truth that someone told her those things. If she didn't tell the truth, or if she put them in an affidavit in a way that concealed that she had no basis to believe that her source had a reason to believe they were true, then that was unethical and contemptible. The content and tone of the attack on the victim's credibility was characteristic of rape defenses in the 1970s (it survives to a much lesser extent today), which you may or may not find grotesque. However, it's a defense attorney's job to probe the credibility of government witnesses, and that includes seeking discovery to which the defense is entitled, including psychiatric examinations. It's not clear to me whether Arkansas law in 1975 required a defendant to support a factual basis for requiring a psychiatric exam — if it was, then in my opinion Clinton's claims premised on vague anonymous hearsay did not supply a factual basis. I suspect that most jurisdictions would now require a substantially more specific and attributed basis to subject an accuser to a psychiatric test, to the extent they allow the defense to demand such a test at all. You can make a perfectly colorable argument that a defendant ought not be able to force a psychiatric exam of an accuser. However, you can't make a plausible argument that a defense lawyer shouldn't ethically seek such an exam when the law permits it. Unless she lied — and I have no way of knowing whether she did — this step was part of Clinton's vigorous defense.

Tom Taylor pleaded guilty to fondling a child under 14. That is evidence that he did it — and may have done more — but is not, in reality, absolute proof. Defendants confess falsely, and defendants plead guilty to things they did not do to avoid the risk of a long sentence. The fact that a defendant was found guilty — or admitted guilt — does not make a vigorous criminal defense retroactively blameworthy. You're with me on that, or you're not — you agree that someone accused by the state should be defended, or you don't.

That leaves us with the recorded interview with Clinton from the 1980s. In my opinion, that interview displayed an ethical lapse, one regrettably common among lawyers presented with an opportunity to promote themselves to interviewers. Clinton said this:

Of course he claimed he didn’t [commit the offense]. All this stuff. He took a lie detector test. I had him take a polygraph, which he passed, which forever destroyed my faith in polygraphs. [laughs]

That's completely inappropriate. Clinton just suggested that she believed her client did what he was accused of, and a fair inference is that her belief may be premised in part on her confidential communications with him. That's a violation of her ethical obligations of loyalty and confidentiality, and it's not goddamn funny. It's completely inappropriate. It's easing her ethical duty to the former client in order to get a laugh line in an interview. The fact that it's common for attorneys to put their egos ahead of their obligations to the client doesn't make it right.

People also attack Clinton for laughing about the case during the interview. They find the tone of her description of her defense to be callous and disrespectful to the victim. This is a matter of opinion. It's true that defense lawyers, in relating war stories, may do so in a tone that seems indifferent to the suffering of victims. I think that's human nature. I've heard it from prosecutors and ER doctors and and surgeons and funeral directors and soldiers and other people tasked with handling grim matters. I believe it's more a defense mechanism than a sign of true callousness to humanity. You'd go quite mad if you constantly talked about such jobs with the tone they deserve. I can understand, though, that if a lawyer discusses an ugly case with an interviewer (as opposed to telling war stories with colleagues), reasonable people may find a light tone unsettling. I find Clinton's tone to be callous in the interview, but I recognize that's probably strongly colored by the fact I really don't like her.

I'm a criminal defense lawyer. I've represented people by appointment and voluntarily, and I've represented people accused of all sorts of things. I've made vigorous use of my client's constitutional and procedural rights to attack the government's case, even in cases were most observers believed it was clear that my clients "did it." That's my job. You're free not to like it, and free to attack me for it. But I'm going to call you totalitarian and un-American if you do.

FIRE Attacks Northern Michigan University's Shocking, Wanton Rule Against Students Sharing Suicidal Thoughts

I've written about some pretty outrageous cases of university censorship, like Bergen Community College's idiotic crusade against Game of Thrones t-shirts or University of Wisconsin-Stout's imbecilic response to Firefly references. The Foundation for Individual Rights In Education — FIRE, the boogeyman of Alternet writers and the professionally offended — has played a major role in vindicating rights in many of those cases.

But I've never seen a FIRE case that outraged me more.

Northern Michigan University had — and perhaps still has — a policy subjecting students to discipline if they share suicidal thoughts with their peers. And they've threatened to use it.

After seeking counseling following a sexual assault, NMU student Katerina Klawes received one of these emails in March 2015, informing her that it was “important that [she] refrain from discussing these issues with other students.” An administrator clarified to Klawes in a subsequent email that she “cannot discuss with other students suicidal or self-destructive thoughts or actions.”

Words are inadequate to convey how wrong-headed, reckless, and cruel this is. FIRE's letter explains why it's a First Amendment travesty. But more compellingly than that, it's a human travesty, a sick elevation of student management over survival. As I've talked about before, reaching out to someone — anyone — can be the difference between life and death for someone suffering from severe depression. Threatening a student with discipline if they utter a cry for help to peers — who may be the only ones with whom the student feels a connection — could fatally suppress that crucial plea for help.

I'm more of a consumer of mental health expertise than a provider, so to express what a terrible idea this is I reached out to a high school classmate, Dr. Mendel Feldsher, a frighteningly well-qualified psychiatrist and clinical professor of psychiatry. Part of Mendel's work since 2002 (along with forensic and expert work) has been counselling college students at the Claremont Colleges. Here's how he put it:

A policy which prohibits college students from communicating their suicidal or self-harming thoughts with their peers promotes isolation and disconnectedness which increases the risk for suicide. The simple act of disclosing ones suicidal thinking to a friend can itself be quite therapeutic and can interrupt the crescendo of depressive cognitions which can lead a student to act on suicidal thinking. Communication with a friend is frequently the pivotal first step toward seeking help, and many students may be more willing to initially share their feelings with a friend than with a school official or therapist. Threatening disciplinary action for student to student communication regarding suicidal thinking sends the clear message, “You are an unacceptable burden to others” which is a harmful message, particularly to a student who is depressed and suicidal. The increasing prevalence of anxiety, depression, and suicidality in college students calls for increasing access to mental health services, not adding to stigma with a policy which promotes increased shame for the depressed and suicidal student. I have treated many depressed and suicidal students who would not have come to my attention but for their decision to reach out to a peer who urged them to seek treatment. I have never treated a student whose primary issue was the trauma they suffered as a result of a peer’s self-disclosure regarding their self-harm or suicidal thoughts.

This is a shockingly bad, inhumane policy. Let's hope FIRE's letter inspires NMU to renounce it quickly, clearly, and unequivocally. Even if they do, I am appalled that college administrators thought that this was a sensible or acceptable policy, and I question their suitability to work with students.

Jesse Singal has a post about this as well.

About Trump's Mandatory-Minimums For Returning-Aliens Proposal

Last night Donald Trump said this:

On my first day in office, I am going to ask Congress to pass "Kate's Law" — named for Kate Steinle — to ensure that criminal aliens convicted of illegal entry face strong mandatory minimum sentences.

This is stupid political theater; let me tell you why. I'll begin by emphasizing that it's not, by any stretch of the imagination, a stupidity that's unique to Trump. He's just the most recent example.

I'll leave aside, for the moment, that naming laws after crime victims generally leads to bad lawmaking. Let's instead focus on the fatuity that slapping a mandatory minimum sentence on a particular crime will do anything other than signal our moral outrage about it.

Reentering2 the United States after you've been deported3 is a federal crime. The maximum sentence depends on whether you've committed crimes before deportation, and can be up to 20 years if you've been convicted of an "aggravated felony."4. The United States Sentencing Guidelines — which are used to generate a recommended sentence for the sentencing judge — calculate the sentence based on factors including the number and nature of past convictions and commonly yield ranges anywhere from a year to six years. I prosecuted these cases when I was an Assistant United States Attorney and defended them when I worked on the indigent defense panel. It's also a crime to enter the United States as an illegal alien in the first place, though that used to be prosecuted rarely. After their sentences, these defendants are transferred into immigration custody and deported.

Trump's rhetoric suggests that we can reduce crime and protect citizens by lengthening the sentences of aliens who return after deportation. This is bunk.

First of all, only a small number of aliens who return after deportation are prosecuted. That's because of resource limitations, not lack of political will or indulgence. There are far fewer federal prosecutors than state prosecutors, and far fewer federal judges than state judges. As a consequence there are a limited number of federal prosecutions. For instance, in Fiscal 2010 there were just under 70,000 federal criminal cases filed nationwide. That's for all types of federal crimes. Immigration prosecutions already take the lion's share of those. That Fiscal 2010 year, almost 30,000 of those cases were immigration-related. Many of those were illegally returning aliens, but others including alien smuggling, immigration fraud, and related issues. Compare that to 115 civil rights prosecutions, 581 official corruption prosecutions, 300 organized crime prosecutions, and 6,437 white collar crime prosecutions for fiscal 2010.

Second, immigration prosecutions have already been skyrocketing, not declining. Federal prosecutions for illegal reentry – and now for even illegal initial entry — have surged dramatically during the Obama administration. That means they take up an even greater percentage of federal prosecutions and federal prosecutorial and judicial resources.

Third, this surge in prosecutions is made possible by plea-bargaining offering shorter sentences. Illegal reentry cases are some of the simplest federal cases to prosecute: you've just got to establish the defendant's alien status, prior deportations, being found in the United States after deportation, and (these days) prior criminal record.5 For the most part prosecutors prove those things up with agents and documents from the agency now called Immigration and Customs Enforcement ("ICE"). However, there are a limited number of ICE case agents to put cases together for prosecutors, a limited of number of ICE records custodians to testify, a limited number of federal prosecutors, and a very limited number of federal judges. So jurisdictions with a high rate of illegal entries and reentries have created fast-track programs that reward very quick pleas (within a few weeks of arrest, before indictment) with reduced sentences. Those fast-track programs drive a gigantic percentage of the federal criminal docket in places like San Diego.

Even with fast-track programs in place, and even with immigration crimes taking up a very large percentage of federal criminal efforts, only a small percentage of illegally returning deportees are prosecuted criminally. A tiny percentage of first-time illegal entries face prosecution. There are no resources to do more. U.S. Attorney Offices generally create internal guidelines to determine which cases they'll prosecute. For instance, when I was a federal prosecutor in the 1990s, the Los Angeles office only prosecuted cases involving aliens with prior aggravated felonies or lots of prior deportations. Those days, the office — one of the biggest in the country — indicted about 1,200 – 1,500 cases a year total. That number is lower now. It cannot make a statistically significant impact on immigration crime.

If you add mandatory minimums to the mix, that system collapses. Defendants lose the incentive to plead guilty promptly. If they're going to face a five or ten year mandatory minimum sentence, why plead out quickly? ICE lacks the resources to marshal lots of federal cases to trial as case agents. Federal prosecutors lack the resources to prepare for trial, and try, many more immigration cases. Federal judges lack the time and courtrooms to try the cases. (There are about 2,800 federal district judges nationwide, and remember that they handle both civil and criminal cases.) Unless accompanied by a substantial increase in resources devoted to ICE, the Justice Department, and the federal judiciary, increasing time spent on immigration prosecutions means reducing time available for administrative deportations and investigations, all other criminal prosecutions, and all federal justice, civil or criminal. That's before they are convicted: the federal prison system is already overcrowded and it costs about $30,000 per inmate per year. (Convicted aliens cost at the high end of the scale because they are generally held in higher security facilities.) Prosecuting returning aliens goes up, prosecuting corrupt politicians, white collar crime (especially complex white collar crime), gun crimes, organized crime, complicated drug conspiracies, political corruption, and abusive cops goes down. Your wait for trial in federal civil cases goes way up.

I've never seen any credible evidence that more prosecutions or higher sentences deter aliens from returning after deportation. Certainly an alien with a criminal record who is sitting in federal prison is not, at that moment, returning after another deportation and committing more crimes, but the system lacks the resources to make a statistically significant impact through such incarcerations, unless you'd like to pay a lot more in taxes, which you would not. And while you are incapacitating criminal aliens through mandatory-minimum incarceration you are not using those prosecutors, judges, or jail cells to incapacitate other criminals, including domestic criminals who offend at a higher rate.

Mandatory minimums, if applied rigorously, would therefore dramatically reduce federal immigration prosecutions. Of course, they wouldn't be applied rigorously; they almost never are. Instead, the likely outcome is this: Congress would pass mandatory minimum laws covering some illegal reentries. Federal prosecutors would retain discretion of whether to charge aliens under those new statues or under existing statutes without mandatory minimums. Federal prosecutors would use that discretion the way they usually do — to coerce cooperation and guilty pleas. So the length of sentences for aliens returning after deportation wouldn't increase; there would just be more prosecutorial power and discretion and somewhat quicker pleas. The impact of the law would be the opposite of how it is sold to the public.

Mandatory minimums could work differently if accompanied by a general policy shift. If Congress passed mandatory minimums and the Department of Justice said "we're going to focus our resources on prosecuting returning aliens with past violent crimes like rape and robbery and assault and stop prosecuting aliens with past drug or property crimes," we'd be having a different discussion. But that's not going to happen, is it?

Trump's mandatory minimum proposal is crowd-pleasing bunk. It's commonplace bunk, offered by politicians of all stripes, but it's bunk all the same.

I Stand, Despite

I stand when they play the National Anthem.

I stand even though I don't sing along with it. I don't sing when I stand in church, either. It's not an act of defiance, it's an act of compassion. I only sing in the car, alone. And I do that with the windows closed. (I learned that after an incident when I was singing along with Messiah. The text "all we like sheep," enthusiastically bellowed, is vulnerable to misinterpretation.)

I stand during the Pledge of Allegiance, too. I stand during that even though I don't say the words "under God," which constitute a rare instance of actual virtue-signalling and, in my view, a vanity. I stand for it despite its prominent historical role in tyranny against my fellow Americans, which I despise.

I stand for the National Anthem and the Pledge secure in the knowledge that if I do so, very few people will ever question my commitment to the ideals referred to in them, or inquire whether my rhetoric or actions are consistent with them, or suggest that I am standing out of self-interest or calculation, or use it in an opportunity to delve into my relationships or personal history. By contrast, if I don't stand, I know that people will question all of those things (and, sometimes, not unreasonably.)

I stand knowing that if I don't stand people will interpret it as a sign of outrageous disrespect for people who have served America in uniform. I stand even though more people will get more upset, and more news coverage will result, over that disrespect than over the fact that 20 veterans commit suicide every day, or the fact that there's more homeless veterans in America than there are residents of ten of our state capitals, or the fact that veterans routinely die waiting for (inadequate) medical care because we've thanked them, clapped them on the back, and consigned them one of our most entrenched and incompetent bureaucracies that is exceptional at protecting its own (except for whistleblowers) however freakishly bad at their jobs they are but pretty bad at protecting veterans, or the fact that we'll drone-strike anyone who shoots at them in Fallujah but if they encounter police in America they're pretty much fucked, or the fact that every mainstream politician for two generations has promised to make it better without accomplishing jack shit. I stand even though this disparity in outrage and coverage is indescribably grotesque.

I stand even though the discourse about standing or not standing is rife with culture-bundling, with standers sneeringly dismissed as uneducated rubes and sheep and sitters angrily dismissed as effete thug-sympathizing communists.

I stand knowing that my standing doesn't mean the same thing to me that other people standing means to them, and that's okay. I stand despite being conflicted with and uncomfortable about uniform unison rote displays of nationalism. I stand despite my suspicion that standing is sometimes part of the commodification and monetization of patriotism.

I stand loving America, aware that I often fall short of what that love should mean. When I say I love America I mean I love certain shared values and founding ideals like the rule of law and equality before it, liberty, and self-determination, and what people have done to achieve them. I love the values as lofty as the right to speak and worship and as humble as the right to raise a family and work and live as I see fit. I love it knowing that these ideals are more aspirational than descriptive, more a to-do list than a resume. They are what Lincoln called "unfinished work" and "the great task remaining before us." I try to love it the way some grievously wronged veterans I saw being naturalized one transformative day a quarter-century ago loved it — for what it can be with shared effort, not always for what it is or has been. If America is Americans being deprived of their property and herded into camps and reviled for their ethnicity, it is equally those same Americans fighting for their country and its values with extraordinary valor and dedication.

I stand because when I stand I'm ten again at a ball game with my parents, or twelve again, fat with burgers and ice cream cake, watching fireworks in the dusk on the Fourth of July, or a young man again proudly being sworn in to my first job representing the United States. I stand knowing that other people's experiences aren't the same.

I stand even though the reaction to people who don't stand is one of the best arguments for not standing in the first place.

I stand, but I support the people who don't. In fact, when I stand, I mean to show that I support them.

How The University of Chicago Could Have Done A Better Job Defending Free Speech

The University of Chicago made the news last week with a strongly worded letter defending academic freedom. The heart of it was this:

Our commitment to academic freedom means that we do not support so-called trigger warnings, we do not cancel invited speakers because their topics might prove controversial, and we do not condone the creation of intellectual ‘safe spaces’ where individuals can retreat from ideas and perspectives at odds with their own

Reactions were predictable. Critics of campus culture (usually, but not always, on the right) loved it; supporters of trigger warnings and safe spaces (usually, but not always, on the left) didn't.

I think it could have been better written. Here's how I would have framed the same paragraph.

Our commitment to academic freedom will govern our response to community concerns about course content and campus expression in general. The community should not expect us to require professors to give "trigger warnings," or to discipline them if they decline to do so. The community should not expect us to prohibit or "disinvite" speakers who offer controversial or offensive ideas. Members of the community should exercise their freedom of association to form groups with similar interests, goals, and values, but should not expect to transform classes or public spaces into "safe spaces" where expression they oppose is prohibited.

I like my version better for several reasons.

First, it's clearer that the University isn't telling professors how to teach their classes. It's unserious to say that you stand for academic freedom but then dictate to professors exactly how they can talk about their class content. I don't read the letter to say they are prohibiting professors from choosing to offer trigger warnings, but I think they could have been clearer. I personally find trigger warnings infantilizing in most academic circumstances, but I'm not the one teaching the class.

Second, I think my version offers a more honest and philosophically coherent approach to "safe spaces." As I have argued before, "safe spaces" are completely consistent with freedom of association when they represent a group of people coming together voluntarily to determine how they want to interact. They're a problem when people decide they have the right to intellectual manifest destiny — when they have a right to use safe spaces as a sword rather than a shield by telling others what they can say in public spaces like classes, quads, and dorms. "This club is a space for [group x]" does not threaten academic freedom or freedom of expression. "This campus/dorm/class/quad is a safe space and so this speaker/topic/speech should not be allowed" definitely is.

This is going to get me called (among other things) a pedant. Guilty, with an explanation. Pedantry on basic civic virtues is a good thing. Free speech legalism is a good thing. Rhetoric that blurs the nature of rights and encourages misunderstandings is bad — particularly when it comes from a university. If the University of Chicago believes — as many of us do — that the values of academic freedom and free speech are under assault, then it shouldn't encourage misunderstandings of those concepts just for the pleasure of rhetorically spiking the ball. If your proposition is that college kids should act like grown-ups, you can talk to them with a bit more complexity and accuracy.

Conservatives railing against "safe spaces" without nuance should remember that freedom of association — which conservatives are supposed to be fighting for — is about something very like safe spaces. You think college kids shouldn't be able to form their own "safe spaces" where they hear what they want? Fine. But remind me — why should campus Christian groups be able to control who can be officers based on sharing the groups' values? On the other hand, liberals insisting that this is all a talk-radio fabrication should take another look. The rhetoric of safe spaces is being used, widely and explicitly, as a justification for excluding contrary expression. These people — whether a small minority or not — believe that universities have an obligation to exclude views that they, subjectively, deem harmful. If you support that, you're not in favor of academic freedom or free speech.

In short, University of Chicago's letter was a little triumphalist, a little misleading, and a little too vague.

Lawsplainer: No, Donald Trump's "Second Amendment" Comment Isn't Criminal

Donald Trump, against all advice and rumors of pivot, will continue to be Donald Trump. Today, at a rally, he uttered a line that some have taken as a suggestion that Hillary Clinton (or possibly judges) could or should be killed if they did not support Second Amendment rights:

At a rally here, Mr. Trump warned that it would be “a horrible day” if Mrs. Clinton were elected and got to appoint a tiebreaking Supreme Court justice.

“If she gets to pick her judges, nothing you can do, folks,” Mr. Trump said, as the crowd began to boo. He quickly added: “Although the Second Amendment people — maybe there is, I don’t know.”

Trump's staff quickly issued a press release saying that this comment was merely a reference to the vigorous political activism of Second Amendment fans, not to violence. I express no opinion about what Trump "meant": I think trying to parse his Joycean ramblings is usually pointless.

But let's say we choose to interpret this as Donald Trump suggesting that, if Clinton appoints judges hostile to the Second Amendment, she or the judges could be shot.

Is that a crime? Is it outside the protections of the First Amendment?

No, I'm confident that it isn't.

People are referring to this as a threat, but it's more like incitement. Under any interpretation Trump isn't saying he will shoot anyone; he's suggesting that someone else might — and perhaps implying that they should.

Attempts to punish incitement to violence are governed by the "clear and present danger" test articulated in Brandenburg v. Ohio. Brandenburg involved a Klan rally at which a speaker said "We're not a revengent organization, but if our President, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, it's possible that there might have to be some revengeance [sic] taken." He was convicted under the Ohio Criminal Syndicalism statute for "advocat[ing] . . . the duty, necessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform." In one of the most important First Amendment decisions of the last half-century, the Supreme Court overturned the conviction. "[T]he constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." Thus, since the Klansman wasn't advocating imminent lawless action and likely to incite it, his words were protected by the First Amendment. By the same logic, Trump's comment is protected. It's conditional, it's directed to something that will happen (at the earliest) more than six months in the future, and it's not likely to produce action. I don't think this is a close call at all.

What if we stubbornly treat Trump's comment as a threat? Isn't it a federal crime to threaten a major presidential candidate?

Under the true threat doctrine, it's still protected by the First Amendment.

Consider the Supreme Court's ruling in Watts v. United States. At an anti-draft protest, Watts said he would resist the draft and that "If they ever make me carry a rifle the first man I want to get in my sights is L. B. J." He was convicted of threatening the President. The Supreme Court reversed the conviction. The court noted that the statement was made at a political rally and drew a laugh from the crowd. "We agree with petitioner that his only offense here was 'a kind of very crude offensive method of stating a political opposition to the President.' Taken in context, and regarding the expressly conditional nature of the statement and the reaction of the listeners, we do not see how it could be interpreted otherwise."

Since Watts courts have grappled with whether the government must prove that a threat is just objectively threatening (meaning, a reasonable person would take it as an expression of intent to do harm) or also subjectively threatening (meaning, the speaker intended that it be taken that way), and that issue is not fully resolved. Thankfully we don't have to delve into the fetid swamp that is Donald Trump's subjective intent, because I don't think the objective test is anywhere close to being met. Like Watts, the statement was spoken at a political rally, and like Watts, it drew laughter, and like Watts, it was hypothetical and conditional. Moreover the "maybe there is, I don't know" softens it substantially. At most it's the sort of hyperbole that Watts protected. It's not anywhere close to the sort of extreme and specific statements that have been taken as threats in the political context, like the abortion provider "wanted" posters in Planned Parenthood v. American Coalition of Life Activists or the nutty white supremacist in United States v. Turner (both of which show how courts sometimes blur the lines between incitement and threats). Again, with respect to dissenters out there, I don't see this as a close call.

In America, under the First Amendment, I can say something like "if Donald Trump gets elected, someone should assassinate him for the good of the nation." That statement may be immoral, and destructive of the very American values it purports to defend, but unless it calls for imminent action or expresses an objectively credible intent to do harm, it's protected speech.

Reverence For The Blue

Wednesday was Big Government night at the Republican National Convention, with speaker after speaker extolling the virtues of public employees. Scott Walker said that government lawyers should not just be respected — they should be revered. Newt Gingrich called for zero tolerance for people who call for the death of IRS employees. Vice-Presidential nominee Mike Pence asked delegates to let EPA regulators and VA administrators know that we will always stand with them.

Well, no. That would be ridiculous. Not even the Democrats indulge in such hagiography of all public employees.

Republicans said those things about one subset of government employees — police officers. So no worries. The party of limited government isn't demanding reverence of all government — just the armed parts.

Flag-waving about cops works on multiple levels. On one level it's symbolic and emotive — it's America, apple pie, baseball, and mom, all wrapped into an idealized view of cops.


But the words work on another level too. They carry messages about the relationship between the citizen and the state, as embodied by its armed officers: armed officers of the state are, by definition, heroes. Armed officers of the state are, by definition, trustworthy and right. It's wrong to question them. They need and deserve special protection.

We already get that from television and movies and other parts of the culture. It's only natural that we get it from our politicians as well. Law and order rhetoric has two parts — you're in danger and I'll protect you. Lionizing cops is part of the I'll protect you phase. It signifies "I support cops, cops are part of my tribe, and together we will keep you safe." At least, it says that for some values of "you."

The Republicans — as they have historically — have deftly manipulated fear about lawlessness and disorder. On the home front, we fear lawlessness and disorder in the form of tragic and despicable ambush murders of police officers in multiple locations. Each represents a world ended, a family destroyed, a grotesque act of hatred. More importantly for politicians, each represents the particular kind of lawlessness we fear.

As a nation, we're rather selective about what kind of lawlessness terrifies us.

What is more terrifying: criminals engaging in a particular type of wanton violence more often than usual, or armed agents of the state breaking it with impunity? The answer to that question might depend on whether you're likely to be the victim of one or the other. In America, maniacs murder cops. And in America, cops shoot unarmed caretakers with their hands in the air as they try to protect autistic patients. They beat surrendered suspects. They perjure themselves. They execute citizens. They manipulate the system to protect cronies. They rape the vulnerable.

Not all cops, of course. We stand behind the law-abiding cops, some politicians claim. But the fact is the American justice system demonstrably stands behind cops even when they're proven liars and lawbreakers, and the system's standard of proof for cops — and the public's — is much different than the standard of proof the rest of us face. The rhetoric of cop-worship is the foundation of that special treatment.

Somehow, as a nation, we're not terrified of this trend of state lawbreaking as we are of other types. At least, most of us aren't. In fact, many of us are miffed when someone brings it up.

That's culture — a culture that already reveres cops, just like Scott Walker says we should. Our reverence is unreflective and mostly unquestioning. Our reverence is shorthand for bundles of other attitudes, some of them about race and class and other ugly things. Our reverence ought to trouble us, and should have no place at the convention of a party that's supposed to stand for conservatism. Reverence for the government is not conservative.

Ask Popehat! Joe Manchin Edition

Welcome to Ask Popehat!, the feature where we take your questions on topics ranging from law to ethics to proper child rearing, and give sensible easily digested answers that you can share with friends and family at the dinner table. For this edition, we'd like to welcome Senator Joe Manchin of West Virginia. As the distinguished former Governor and Attorney General of the Mountain State, Senator Manchin has graciously agreed to provide his wisdom on the difficult job of upholding the Constitution during times of emergency and civil strife. Our question to Senator Manchin comes from Edith H., of Anchorage Alaska.

Senator Joe Manchin

Senator Joe Manchin

Dear Senator Manchin:

I was shocked and heartbroken at this week's deaths at Pulse Night Club in Orlando, though I'm still learning the facts. Like a lot of Americans, I'd like to know how the shooter was able to get his hands on a semi-automatic rifle when he'd been investigated by the FBI, not once but twice.  Wasn't that a crime? Shouldn't the government have prevented him from obtaining a dangerous weapon, just to be sure?

Edith in Anchorage.

Senator Joe Manchin

Senator Joe Manchin

Dear Edith:

Thank you for your questions. Like you, I was dismayed to wake up Sunday morning to see news of this tragedy. And let me tell you, as a former prosecutor, once I recovered from my grief I turned to the first question anyone should ask when tragedy occurs:

Who is responsible?

There are many we could blame for this atrocity, starting with the obvious: the shooter himself. By all accounts Omar Mateen was a psychopath, with deeply strange sexual hang-ups and a twisted, murderous interpretation of his religion. Some would say that alone explains his awful crimes, and that we should be thankful he's no longer around. That's what many ordinary people would say. But as a former prosecutor, and a United States lawmaker, my job is to probe deeper, to prevent tragedies of this sort from occurring again. And I'm glad to say that I have found the true culprit behind these crimes. That culprit is the United States Constitution.

Now don't get me wrong: I'm a big fan of the Constitution, in many respects. I'm a great admirer of Article I, which gives United States Senators, like myself, the power to maintain a Journal of Proceedings. And to be compensated by law for our service to this great nation. As well as to provide and maintain a Navy. Did you know that even though West Virginia is landlocked, the Navy keeps our rivers free of pirates? God bless our beautiful mountain streams. And God bless the United States Navy.

But as much as I love our brave fighting sailors, the Constitution is a deeply flawed document, which has been twisted even further by bleeding heart judges and corrupt defense attorneys for criminals. Why, did you know that the Constitution says, at least according to some, that a criminal's life, liberty, and property cannot be taken away without "due process of law?"

I was gobsmacked when I first heard that.

You see, some judges, bless their hearts, have gotten it into their heads that we in the United States Senate cannot pass a law to keep potential troublemakers from getting into mischief, or sending them to prison, or taking away their possessions, unless a judge (naturally) and jury have said they actually broke some other law that was already on the books? That's what "due process of law" means.

That's what killed those poor people in Orlando. And it's killing us all.

Edith, as a United States Senator, my job is to keep good Americans like you safe from all enemies foreign and domestic. But as powerful as I am, in some ways my hands are tied. How can I keep you safe from an enemy domestic if I can't order him locked up for your own protection? Or maybe we don't want to actually, you know, put him in jail. Maybe we just want him to shut the funk up, pardon my French. There are a lot of dangerous weirdos out there, saying stupid things that give dumb people the wrong idea about America. Why should they be able to spout off at will, if we in the Senate have determined they're wrong? Why should they be able to buy a gun, if the brave men and women of our Federal Bureau of Investigation think they may be up to no good, some day?

I'll tell you why. It's because pointy-headed judges have arrogated to themselves the power to interpret our sacred Constitution, a job that's reserved to the Senate. Our founding fathers, men like Aaron Burr, our third Vice President, and Jefferson Davis, a great Senator from Mississippi and a brave Secretary of War, didn't hold with toxic notions like this "due process of law." And neither should we.

Of course, Edith, I'm not suggesting that we should put ordinary Americans on lists of people whose rights aren't protected. I love our rights, and I know you do too. We'd never keep you from exercising your God-given right to own a hunting rifle, and to shoot as many turkeys as federal regulations permit. West Virginia is prime turkey-hunting country. If you and your husband enjoy the excitement of turkey shoots as much as I do, we'd love to show you some Mountain State hospitality at our fine hunting resorts.

No, I'm speaking of them, Edith. People who don't love America the way you and I do. I think you know who they are. They're out there, in the mosques and madrassas and "civil liberties" rallies, plotting the downfall of our great nation, and speaking ill of our ancient institutions, like the United States Senate, the greatest legislative body in the world. And one day, if they're not stopped, they'll each of them shoot up a hundred night clubs. Unless we stop them from owning firearms, for their own good, and our own protection.

Kindest regards, and God bless our United States Navy,

Joe Manchin.

In Support Of A Total Ban on Civilians Owning Firearms

I support the argument that the United States should enact a total ban on civilians owning firearms.

Oh, I don't support the ban. I support the argument.

I support the argument because it's honest and specific. It doesn't hide the ball, it doesn't refuse to define terms, it doesn't tell rely on telling people they are paranoid or stupid in their concerns about the scope of the ban. The argument proposes a particular solution and will require the advocate to defend it openly.

That elevates it above most gun control dialogue.

I've argued before that gun control debates would be improved if people avoided culture-bundling and cared about the meaning of words. Most don't. Too much looks like this:


There's a very good reason to care about what you mean when you argue that "assault weapons" should be banned: the term is infinitely flexible. If you think it inherently means something specific, you haven't bothered to inform yourself about the issue. "Assault weapon" means whatever the definers decide it should mean. Banning "assault weapons" is the gun version of banning "hate speech" or "disruptive protest" or "dangerous persons" or "interfering with a police officer" — it's a blank check. And I don't like handing out blank checks to the government to ban things and jail people.

I'm not making an argument that it's impossible to define assault weapons.6 I'm not even making an argument that banning "assault weapons," defined with reasonable specificity, would violate the Second Amendment. There's an argument to be made about that — an argument that's still in its jurisprudential infancy, given the recency of Heller — but it's not my point. My point is that if you won't even try to define what you want to regulate, and how, the argument about practicality and constitutionality is both abstract and premature. It's the same with defining automatic and semi-automatic. I don't want gun control advocates to acquire some vague grasp of what those mean because I'm eager to have my neighbor own a machine gun. I want advocates to learn the difference so I can have some level of confidence that I know what kind of proposed government power we're debating. Right now the debate seems choked with people who don't know, are proud of not knowing, and think you're a redneck gun-nut asshole if you want them to know because they feel very strongly about this. I decline to take that seriously.

Gun control advocates may argue that it's pointless to define terms because gun control opponents will oppose gun control laws no matter how they are crafted. That's a fair description of the behavior of some — perhaps even most — gun control opponents. But it's not a logical or moral excuse for not trying. Urging vague and unconstrained government power is not how responsible citizens of a free society ought to act. It's a bad habit and it's dangerous and irresponsible to promote it.

This is not an abstract or hypothetical point. We live in a country in which arbitrary power is routinely abused, usually to the detriment of the least powerful and the most abused among us. We live in a country in which we have been panicked into giving the government more and more power to protect us from harm, and that power is most often not used for the things we were told, but to solidify and expand previously existing government power. We live in a country where the government uses the power we've already given it as a rationale for giving it more: "how can we not ban x when we've already banned y?" We live in a country where vague laws are used arbitrarily and capriciously. We live in a country that is about to nominate Donald Trump as the Republican candidate for President of the United States: a man who wants to limit free speech, ban people based on religion, and generally jackboot around. We live in a country where his opponent is a long-time advocate of the security state who got famous helping label young black men "superpredators."

Maybe gun control advocates won't define terms because they know that the defined terms they want won't sell. That's not unusual; it's typical politics. That doesn't make it right. You have no moral or rational claim to your fellow citizens' support for a deliberately vague law. Cowboy up. Define what you want and argue for it. Anything else is either silly and self-indulgent, or deliberately deceitful.

Libertarianism as Ten Questions Rather Than Ten Answers

Gary Johnson, Libertarian Party candidate for President, is polling extremely well for someone who isn't a Republican or Democrat. That will likely revive the questions "what is the Libertarian Party," anyway?" and "what is a libertarian, anyway?" It is traditional for those questions to be answered snidely, contemptuously, or with a disturbing degree of uncombed mania.

I'm not very interested in the first question. I'm a sort-of small-l libertarian, not a large-L Libertarian. And I'm deeply uncomfortable about labeling myself as even a small-l libertarian. I've explained why before: I think that embracing political labels leads to bad behavior. I ought to support something because I have thought it through and think it's right, not because members of my tribe support it and insecurity and cognitive dissonance will set in if I disagree with them.

That makes it awfully difficult to explain what libertarianism is when people ask because they're wondering if there's some sort of alternative to the horror show the major parties have served up this year. Nobody wants to sit through my discourse on what I think on a long series of issues, and then stick around while people bicker over whether that's libertarian or not. Yet I believe there are values underlying "libertarianism" that are worth promoting, and that the label might be a useful shorthand for defending them. So what to do? Accept a label with the baggage and thought distortions and compromises that it brings, or abandon concise and effective advocacy?

Maybe there's another way.

I'd like to propose presenting libertarianism as a series of questions rather than a series of answers or policy positions. Even if I don't agree with people's answers to these questions, getting them to ask the questions and confront the issues reflected in the questions would promote the values that I care about.

These are all questions that I think ought to be asked whenever we, as a society, decide whether to task and empower the government to do a thing.

Does the United States Constitution permit the government to do this?

This is the fundamental question. The Constitution is the rulebook. If it doesn't give the government power to do something, or doesn't let it do something to you, then we shouldn't do it unless we amend the Constitution first. You might think that's obvious. It's not. Taking the question seriously is important even when we don't agree on the answer or even the methodology. The norm is to invoke the Constitution only when you don't like a proposed law, and to scorn constitutional inquiry when it's an impediment.

What would this power look like if it were expanded dramatically in scope or in time?

Power given to the government tends to grow, not shrink. Folks don't give up power or money easily. What does the power you offer to the government look like if government actors fight to widen its scope?

Tell me if this sounds familiar: terrorists attack, citizens are killed, property is destroyed, the nation's confidence is severely shaken, and leaders propose a law dramatically expanding the power of the state temporarily to address the crisis. I'm not talking about 2001 and the PATRIOT ACT. I'm talking about 68 B.C. and the lex Gabinia, proposed to give Pompey extraordinary powers to fight pirates. That power led, some assert, to the fall of the Roman Republic and the rise of Imperial Rome.

Laws passed "temporarily" are often not temporary at all. Laws passed ostensibly for one purpose are often twisted to other purposes.

What would this obligation look like if exercised indifferently by unaccountable people?

We owe a debt to our veterans and the proposition that we're responsible for their health care is an appealing one, particularly when their health problems result from their service to our country. The question is how to provide that health care. Should we make the government a direct provider? Well, what would it look like if we charged a gigantic government bureaucracy to provide it, and maintained a civil service political and legal culture that made the bureaucrats almost completely unaccountable for how they run it? It turns out we already know the answer to that one.

What would your worst enemy do with this power?

Aye, there's the rub. Think of the politician you hate and mistrust most. Do you want that politician administering enforcement of the law you propose, particularly in a time when other branches of government are aligned or weak?

Does this power make a choice about morals, ethics, or risk that individuals ought to make?

Consider C.S. Lewis:

My contention is that good men (not bad men) consistently acting upon that position [imposing “the good”] would act as cruelly and unjustly as the greatest tyrants. They might in some respects act even worse. Of all tyrannies, a tyranny sincerely exercised for the good of its victims may be the most oppressive. It would be better to live under of robber barons than under omnipotent moral busybodies. The robber barons cruelty may sometimes sleep, his cupidity may at some points be satiated; but those who torment us for their own good will torment us without end for they do so with the approval of their own conscience. They may be more likely to go to heaven yet at the same time likely to make a Hell of earth. This very kindness stings with intolerable insult. To be “cured” against one’s will and cured of states which we may not regard as disease is to be put on the level of those who have not yet reached the age of reason or those who never will; to be classed with infants, imbeciles, and domestic animals.

Does your proposed law empower the government to make the sort of moral, ethical, or risk-assessment decisions that individuals ought to be making for themselves? To combine this question with the last one: if you are empowering the government to make moral, ethical, or risk-assessment judgments for you, are you comfortable with that power being wielded by people with moral, ethical, and risk viewpoints you hate?

Here's another way to ask this question: how does this law treat you with respect to your ability to make decisions, and are you happy with the government constantly treating you that way with respect to other decisions?

Does this power represent the government putting its thumb on the scales to prefer some competitors over others, perhaps based on their relative power and influence?

Or, to use a specific example: if you make monks who hand-carve wooden caskets to support themselves take years of training to learn how to embalm bodies even though they don't have anything to do with dead bodies, are you working for the common good, or are you the puppet of mortuary owners seeking to manipulate the law to discourage competition?

Does this power set up a conflict between laws and rights?

The Constitution creates negative rights — things the government can't do to us. Laws sometimes create positive rights — our privilege to demand something from the government or each other. Does this proposed power set up a conflict between those rights? Does the law purport to give me the power to demand something from you that you have the right not to give?

Are we giving this power to the right level of government?

If we must give the government the power to do this, what part of the government should get it?

Are we acting out of fear, anger, or self-promotion?

Is this law named after a dead kid? Is it named in a way calculated to suggest somebody is awful and we're a-gonna kick their asses? Is it named to promote a politician? Is it named to promote our self-esteem? Is this law the equivalent of grocery shopping when we're hungry? Is it the equivalent of liquor shopping when we just caught our significant other in bed with our best friend? Are we too angry, tired, or scared to think clearly about this law right now? is the person proposing this law in a difficult re-election contest?

Is there any evidence the government is any good at this?

Say you've got a problem at work and you need someone to fix it. You'll probably give some thought to who is best suited for the job. If the server's down you're not going to send Ethel at reception who once tried to send an email from the fax machine. If you need someone to calm the boss down you're not going to send Wayne from sales who prides himself on "saying what people think." You give a shit about how it's going to turn out so you evaluate who has the skillset.

Often we don't do that with the government. We assume, based on habit or ideology, that if there's a problem that the government ought to solve it. Should we? Possibly. But not obviously, not definitely. So ask: what's the specific, evidence-and-experience-founded basis for thinking the government will make this better rather than worse?

Even if people don't agree with my answers to these questions, I think that the country would be a lot more libertarian — as I like to use that term — if people got interested in asking them.