• January 9, 2017
    Guest Post

    by Erwin Chemerinsky, ACS Board Member and Dean and Raymond Pryke Professor of First Amendment Law, University of California, Irvine School of Law

    From the first moments of his presidency, Donald Trump risks violating an important constitutional provision: the emoluments clause, which prevents a government official from benefiting from a foreign government. Article I, section 9, of the Constitution states:  “And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince or foreign State.”           

    This provision was meant to restrict the ability of foreign governments to influence American office-holders, a matter of great concern to a fledgling nation. Also, it helps to prevent conflicts of interests. As Edmunds Jennings Randolph said in 1787, “This restriction is provided to prevent corruption.” The clause is meant to be much broader than a prohibition of bribery; it forbids a federal officeholder from receiving anything of value from a foreign country.         

    The emoluments clause has received virtually no attention through most of American history because few issues have arisen concerning it. But Trump’s extensive foreign business holdings mean that this clause is likely to have great significance in the months and years ahead. It is easy to imagine countless ways that Trump’s businesses can benefit from the actions of foreign governments. This is especially so because Trump has yet to act in a way that will reduce the conflicts of interest that are sure to arise because of his many businesses. In fact, Trump has declared: “I can be president of the United States and run my business 100 percent, sign checks on my business.” Trump also has said, “The law is totally on my side, meaning, the president can’t have a conflict of interest.” That, of course, is simply false, including because of the emoluments clause.           

    The emoluments clause applies to all who hold “office” in the United States government. The Office of Legal Counsel of the Department of Justice explicitly has declared that this includes the president of the United States. The clause is broad in what it prohibits. A recent report issued by the Brookings Institution, authored by Norman Eisen, Richard Painter and Laurence Tribe, explained: “The Emoluments Clause is thus doubly broad. First it picks out words that, in the 1790s, were understood to encompass any conferral of a benefit or advantage, whether through money, objects, titles, offices, or economically valuable waivers or relaxations of otherwise applicable requirements. And then, over and above the breadth of its categories, it instructs that the Clause reaches any such transaction ‘of any kind whatever.’”           

  • January 6, 2017
    Guest Post

    *This piece originally appeared on The Huffington Post.

    by Christopher Kang, ACS Board Member and National Director of the National Council of Asian Pacific Americans

    Senate Republicans claim they are “confident” Sen. Jeff Sessions (R-Ala.) will be confirmed to be attorney general, but their rigging of his confirmation process undermines their false bravado. They must be worried that if Americans get to know Sen. Sessions’s record, they would know he is unfit to be attorney general and demand the Senate reject his nomination, just as it did 30 years ago.

    Here are six ways Republicans are stacking the deck.

    1.     Chairman Grassley’s double-standard rush to judgment. As Judiciary Committee Chair, Sen. Chuck Grassley (R-Iowa) has scheduled consideration of two attorney general nominations. He took more than six weeks to schedule the confirmation hearing for Loretta Lynch, who is the first African American woman to serve as attorney general. He took barely six minutes to schedule the confirmation hearing for Sen. Sessions, setting a date even before his records were delivered.

    2.     Sen. Sessions refuses to provide the Senate with his full record—which he has previously argued is a felony and that a judge would consider contempt. In 2010, when Sen. Sessions was Ranking Member of the Judiciary Committee, he charged that a nomination was “‘in jeopardy’ after extraordinary omission of 117 items from Record,” and that the nominee’s “unwillingness to take seriously his obligation to complete these basic forms is potentially disqualifying.” He asserted, “At best, this nominee’s extraordinary disregard for the Committee’s constitutional role demonstrates incompetence; at worst, it creates the impression that he knowingly attempted to hide his most controversial work from the Committee.”

  • January 3, 2017
    Guest Post

    by Ethan Frenchman, Appellate Attorney, Maryland Office of the Public Defender and Arpit Gupta, Professor of Finance, NYU Stern School of Business

    Across the United States, judges routinely require criminal defendants, who have not been convicted of any crime and are presumed to be innocent, to buy their freedom in the form of money bail. As any defense attorney can attest, this system jails the poor and allows the rich to free.

    And because many criminal defendants are poor, the key factor in the incarceration of people awaiting trial is poverty, not their risk to society or their risk of failing to appear in court. As a result, on any given day more than 450,000 people are in jail merely awaiting trial. The human and economic costs of this unnecessary detention are staggering.

    In a study of pretrial detention in Maryland, we found that more than 17,000 people were jailed because they were too poor to pay a bail amount of less than $5,000. Those unable to pay the full amount of money bail set by the court must resort to bail bondsmen, who typically demand 10 percent of the total bail amount as a non-refundable fee for securing the defendant’s release. This means that these people could not buy their freedom for $500. Because we looked at only a fraction of Maryland criminal cases, this statistic dramatically underestimates the total.

  • December 29, 2016
    Guest Post

    by Christopher Kang, ACS Board Member and National Director of the National Council of Asian Pacific Americans

    Supporters of Sen. Jeff Sessions’s nomination to become attorney general defend his civil rights record by pointing to his role in passing the Fair Sentencing Act, which reduced the disparity between sentences for crack and powder cocaine offenses. In the context of Sen. Sessions’s overall civil rights record and his opposition to criminal justice reform, even full-throated leadership on this issue would not be enough to overcome concerns about him becoming our nation’s top law enforcement officer, but given efforts to use this law to deflect from that overall record, a closer look is necessary. I was the lead White House legislative affairs staffer on the Fair Sentencing Act and I can tell you that Sen. Sessions’s efforts were only somewhat helpful—and since then have been a far cry from leadership.

    Background and History

    In 1986, Congress established new sentences for cocaine offenses: possession of five grams of crack cocaine (roughly the weight of two sugar cubes) triggered a mandatory minimum five-year sentence, while trafficking 500 grams (approximately one pound) of powder cocaine triggered the same sentence. This disparity was often referred to as a 100:1 ratio and because more than 80 percent of crack cocaine offenders have been African American, the disparity has had an undeniable racial impact.

    In 2001, Sen. Sessions introduced legislation to reduce this disparity to 20:1. However, his approach was to only slightly increase the amount of crack cocaine necessary to trigger a mandatory minimum sentence—and to couple that with decreasing the amount of powder cocaine necessary to trigger a mandatory minimum sentence.

  • December 22, 2016
    Guest Post

    *Read the open letter to President-elect Trump here.

    Dear President-elect Trump,

    I believe you love this country as much as I do. Only someone with a compelling sense of purpose would endure such a grueling campaign, which will only be dwarfed in difficulty by the demanding, often thankless term of service that follows. To be sure, boldly and cautiously guiding the United States from the helm, while simultaneously serving as leader of the free world, are arduous and exhausting duties in any era. Yet the present moment is characterized by greater complexity, nuance and potential for conflict than perhaps has ever existed in human history. The burden on your shoulders – for maintaining America’s position as a linchpin of the Western-led liberal world order; attending to the needs of Americans at home and abroad; cherishing and working to uphold peace; safeguarding the integrity of American institutions and rule of law so they enable every American to achieve his or her potential; and offering light, hope and help to those suffering outside our borders – is truly immense.

    No matter how heavy these responsibilities become nor how different our politics might be, I promise that I and others, will be always be here to help move our country forward, as well as to labor mightily to prevent backsliding when the need arises. One of the bedrocks of our democracy is truth. So over the next few years, as you feel you could benefit from the knowledge, analytic skill and passion for truth and justice embraced by young lawyers like myself, I hope that you will reach out.

    In the meantime, you may perceive Open Letters such as this as an affront to your leadership. Inasmuch as they may represent acts of resistance, they are born out of our deep love of country, respect for our democratic institutions, and affirmation of the worth, dignity and equality of our fellow citizens. Former President Jimmy Carter recently reiterated the importance of upholding human rights at home and abroad, since another cornerstone of our democracy is equal rights and protection under the law. The potential for unequal treatment and unequal opportunity under an Attorney General Jeff Sessions is a profound concern motivating the writers and signatories of this letter. When it seems that entire communities, vulnerable people or marginalized groups are, or may in short order fall, under attack, acts of defiance may become urgently necessary.