June 2017

  • June 13, 2017

    by Dan Froomkin

    Attorney General Jeff Sessions has never been clear about what exactly he has recused himself from.

    He has arguably violated it at least once already, by participating in the firing of FBI Director James Comey.

    Expectations are mounting about special counsel Robert Mueller's investigation of connections between the Trump campaign and Russia. But if and when Mueller decides to press criminal charges against top Trump officials – not to mention Trump himself -- the pressure to shut him down will become immense.

    How Sessions defines his recusal going forward, therefore, could be hugely consequential should Sessions manage to keep his job and should Mueller manage to do his.

    Senators on the Intelligence Committee will get a chance to question Sessions today, and they could do worse than focusing on that recusal and what he is willing to say it means.

    Specifically, they should get Sessions to say on the record whether or not he is recusing himself from any and all matters that fall under Mueller's remit going forward -- as well as promising not to fire Mueller or any member of his team.

    The attorney general's official recusal statement on March 2 was an oddly-worded exercise in obfuscation. "I have decided to recuse myself from any existing or future investigations of any matters related in any way to the campaigns for President of the United States," Sessions said.

  • June 13, 2017
    Guest Post

    *This piece originally appeared on the Public Justice Blog.

    by Arthur Bryant, Chairman, Public Justice

    Throughout America, government officials and corporate wrongdoers are working to shut down access to the courts and limit or eliminate class actions. Why? Because the courts are often the only place they can be held accountable. And, when they are hurting, cheating or violating the rights of large numbers of people, class actions are often the only thing their victims can use to get justice.

    This year’s four finalists for Public Justice’s nationally-prestigious Trial Lawyer of the Year Award make that clear. In each case, government officials or corporate wrongdoers were breaking the law and hurting the poor and the powerless – prisoners, minorities, low-income consumers or the disabled. In each case, lawsuits were the only way to make them stop. And, in each case, unlike in many past years, a class action was essential for justice to be done.

    The Trial Lawyer of the Year Award is given annually to the lawyers who made the greatest contribution to the public good by trying or settling a case. This year’s finalists, who brought the cases listed below, will be honored—and the winner will be announced—on Monday, July 24, at Public Justice’s Awards Dinner & Gala at the Fairmont Copley Park in Boston. If you want to understand why access to the courts and class actions are so important, just read the case summaries below.

    For additional details on each case, and the complete legal teams behind these impressive, impactful victories, click here.

  • June 12, 2017
    Guest Post

    by Virginia Sloan, President of the Constitution Project and Sarah Turberville, Director of Justice Programs, The Constitution Project

    Outside of the legal profession, judicial estoppel, or the doctrine that prevents a party to a lawsuit from taking inconsistent positions about the same issue at different phases of the legal proceeding, is not particularly well-known. However, it speaks to the core value of integrity in the judicial system, preventing misuse of the courts and promoting equity among litigants. Non-attorneys unfamiliar with the legal doctrine of judicial estoppel need look no further than pending lethal injection litigation in Ohio to understand its crucial importance in our system.

    In a remarkable series of losses and appeals, Ohio state officials are currently attempting to convince yet another federal court to allow them to use a lethal injection protocol which is in direct violation of representations state officials made eight years ago in order to prevail at an earlier phase of the ongoing litigation.  

    They have already lost twice, but state officials recently secured rehearing so their appeal will now be heard by the full U.S. Court of Appeals for the Sixth Circuit. That argument is scheduled for June 14, 2017 in Cincinnati.

    To understand the situation, it is necessary to go back and look at the lawsuit and landscape when the State originally made definitive statements about its lethal injection protocol. 

    From 1999-2009, Ohio conducted executions using a three-drug method that included sodium thiopental, a barbiturate, followed by pancuronium bromide, a paralytic agent and then potassium chloride to stop the heart. Over the years, various legal challenges questioned the constitutionality of that drug combination, given the intense pain caused by the second and third drugs. Multiple other states also used this drug combination; and criticism was mounting, in Ohio and elsewhere, as evidence accumulated calling the continued use of the method into question.

  • June 9, 2017

    by Dan Froomkin

    Special counsel Robert Mueller is now investigating whether Donald Trump's conduct toward former FBI Director James Comey constituted obstruction of justice.

    Comey made that pretty clear on Thursday during his testimony to the Senate Intelligence Committee. "I don't think it's for me to say whether the conversation I had with the president was an effort to obstruct," he said. "That's a conclusion I'm sure the special counsel will work towards to try and understand what the intention was there, and whether that's an offense."

    Asked again, Comey replied: "I don't know, that's Bob Mueller's job to sort that out."

    What is less clear is how enthusiastically Mueller, whose mandate is to investigate the wider issue of Russian interference with the 2016 presidential election, will explore that particular topic – and, if he reaches the conclusion that Trump did indeed obstruct justice, what he can do about it.

    On Friday afternoon at a press conference, Trump accused Comey of lying about their conversations and, in an unwitting endorsement of Mueller's investigation, said he would be "100 percent" willing to be deposed by Mueller under oath.

    "I would be glad to tell him exactly what I just told you," Trump said, raising the possibility that he could end up being accused of perjury as well as obstruction of justice.

    At the American Constitution Society (ACS) convention, running from Thursday through Saturday, top progressive lawyers said Trump's behavior certainly appears to constitute obstruction. They said they hope Mueller investigates Trump's conduct vigorously, with plenty of subpoenas and interviews.

    "I think certainly the role of the president in an effort to potentially obstruct the investigation is a critical part of any investigation about Russian efforts to influence the election," ACS President Caroline Fredrickson said.

  • June 7, 2017

    by Dan Froomkin

    At your dinner with President Trump on Jan. 27, did he ask you to pledge your loyalty to him? How did he phrase it? How did you interpret that request? Did he clarify? Did he ask you anything about the ongoing investigation into Russian interference with the election? Did he ask you if he or any of his campaign aides were under investigation? Did you feel like this was a job interview, with your job at stake?

    Your Feb. 14 meeting with Trump took place just a day after Michael Flynn was forced out his job as national security adviser for having lied about his contacts with Russian officials. According to media reports, you recall Trump telling you: “I hope you can see your way clear to letting this go, to letting Flynn go. He is a good guy. I hope you can let this go.” Did you interpret that as a request to end your investigation? Why? Did you feel like your job was at stake?

    Trump fired you on May 9. One day earlier, Sally Yates, who he had earlier fired as acting attorney general, made the first public indication that the FBI's counterintelligence investigation had in fact uncovered evidence of collusion between the Trump campaign and Russian intelligence. (Asked to rule it out at a Senate Judiciary subcommittee hearing, she said instead: "My answer to that question would require me to reveal classified information.") Did you interpret your firing as an attempt to end the investigation, or punish you for not having stopped it? Why?

    These are just some of the essential questions members of the Senate Intelligence Committee need to ask former FBI Director James Comey on Thursday – unless, having already seen the memos he used to memorialize the conversations he had with Trump, they have even better ones.

    But these questions go directly to whether Trump is guilty of obstruction of justice.