July 2017

  • July 28, 2017
    Guest Post

    by Anne Marie Lofaso, Arthur B. Hodges Professor of Law, West Virginia University College of Law

    *This is part of ACSblog's Symposium on Regulatory Rollback

    Labor law is no stranger to polarization. The National Labor Relations Board – that New Deal federal agency established by Congress to enforce the National Labor Relations Act (the principal federal law to regulate relations between unions and private-sector employers) – has long been a prime battleground for political polarization. Starting with the Eisenhower Administration’s confirmation of Guy Otto Farmerlawyer for the Bituminous Coal Operators’ Association (a multiemployer bargaining association formed in 1950 to represent coal operators in negotiations with the United Mine Workers) – to serve as Chairman in the mid-1950s, the Board has oscillated among (mostly) reasonable policy choices within the interstices and ambiguities of the NLRA’s statutory language.

    Last month, President Trump nominated Marvin Kaplan, a Kansan with extensive government (but no labor-litigation) experience, and William J. Emanuel, a Partner in the Los Angeles office of Littler Mendelson, to fill two vacancies on the National Labor Relations Board. On July 13, 2017, the Senate Health, Education, Labor, and Pensions Committee held confirmation hearings.  Their confirmation would return a pro-business, Republican-backed majority to the Board for the first time since the relatively halcyon days of George W. Bush’s presidency.

  • July 27, 2017
    Guest Post

    By ACS President Caroline Fredrickson

    “The Events of recent weeks have eerily reminded me of those Watergate days,” stated William D. Ruckelshaus, who resigned as President Nixon’s Deputy Attorney General after refusing to fire Special Prosecutor Archibald Cox.

    Ruckelshaus joins a growing chorus of Republican advice-givers concerned about Trump’s reported desire to fire Special Counsel Robert Mueller. His opinion piece in today’s New York Times (“A ‘Saturday Night Massacre’ Veteran Offers Trump Some Advice) tracks a comparison of Nixon and Trump created by the ACS. 

     

                   

     

  • July 27, 2017
    Guest Post

    by Renato Mariotti, Partner, Thompson Coburn LLP

    Ever since word surfaced last week that Special Counsel Robert Mueller is examining financial transactions involving President Trump’s businesses and associates, the Trump legal team has leveled charges that Mueller has strayed “beyond the mandate of the Special Counsel.” There is no reason to believe that Mueller has done so.

    As a starting point, it is worth noting that Mueller’s mandate is extraordinarily broad. He is not only empowered to investigate “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump,” but he is also permitted to investigate “any matters that arose or may arise directly from the investigation.”

    That means that if Mueller’s team uncovers evidence of a crime that is related in any way to the crimes they are investigating, that is within the scope of his investigation. For instance, an individual could have structured a cash transaction to hide money payments to a hacker who obtained emails or to an American in exchange for assistance, an entity could have laundered money used to aid in coordination efforts, or evidence of a financial crime could have been used by the Russian government to blackmail an American into cooperating with them.

  • July 25, 2017
    Guest Post

    by John H. Blume, Samuel F. Leibowitz Professor of Trial Techniques; Director of Clinical, Advocacy and Skills Programs; Director, Cornell Death Penalty Project, Cornell Law School

    The Sixth Amendment provides that “in all criminal prosecutions, the accused shall … have the Assistance of Counsel for his defense.” The right to counsel encompasses the right to an attorney -- a qualified attorney. Not, for instance, one who has been disbarred and prohibited from practicing law. 

    And yet, that’s exactly what happened to TaiChin Preyor, who is scheduled for execution in Texas on July 27. Mr. Preyor was convicted and sentenced to death in 2005 for a murder in San Antonio. Mr. Preyor’s trial counsel, however, did not properly investigate known red flags regarding his background, including the violence and sexual abuse Mr. Preyor experienced as a child. These formative experiences are not an excuse, but this mitigation evidence, and other critical details about Mr. Preyor’s childhood, could have persuaded at least one juror to vote for a life sentence, rather than death.

  • July 25, 2017
    Guest Post

    by Andrew Wright, Associate Professor, Savannah Law School

    Last Friday, the Washington Post reported that President Donald Trump has consulted his lawyers about granting pardons in the Russia investigation, including the possibility of a self-pardon. That would stand in stark contrast to the Department of Justice’s Office of Legal Counsel (OLC) determination that a president cannot pardon himself. In 1974 under Richard Nixon, OLC stated: “Under the fundamental rule that no one may be a judge in his own case, the president cannot pardon himself.”

    Over the weekend, the pardon debate continued. President Donald Trump claimed in a Saturday morning tweet that he has “complete power to pardon” his associates and, perhaps, himself.  A week earlier, on ABC’s This Week, Trump’s personal lawyers, Jay Sekulow, had refused to rule out the possibility that the president would pardon his associates, or even himself, in the Russia investigation. Sekulow walked back his previous statement on July 23, stating that “pardons are not on the table,” despite the Post reporting. Interestingly, he asserted that the idea of a presidential self-pardon is an open question that should be resolved in court.