Guest Post

  • January 19, 2018
    Guest Post

    by Brad Smith, President and Chief Legal Officer, Microsoft

    *This piece was originally posted on Microsoft On the Issues

    Something extraordinary happened in Washington, D.C., yesterday.

    Members of Congress took the same position as members of the European Parliament. The U.S. Chamber of Commerce approvingly quoted a statement by the European Commission. Business groups and big companies agreed with consumer and privacy advocates. Faculty from Harvard joined with professors from Princeton. Professors from Duke joined rivals from the University of North Carolina, while those at Berkeley sided with Stanford. And Fox News agreed with the American Civil Liberties Union.

  • January 17, 2018
    Guest Post

    By Steven D. Schwinn, Professor of Law, the John Marshall Law School

    Former White House chief strategist Steve Bannon invoked a breathtakingly broad version of executive privilege on behalf of the President at yesterday's closed-door House Intelligence Committee hearing. But at the same time, he reportedly maintains (apparently along with the White House) that the same executive privilege won't prevent him from sharing information with Special Counsel Robert Mueller, who has subpoenaed Bannon.

    What gives? Neither Bannon nor the White House has said. But let's try to sort some of this out.

    Start here: The Supreme Court, in its seminal case United States v. Nixon, said that certain communications between the President and his or her advisors may be privileged. While this "executive privilege" is nowhere in the Constitution, the Court said that it derives from the President's Article II powers and separation-of-powers principles.

  • January 16, 2018
    Guest Post

    by Sam Kamin, Vicente Sederberg Professor of Marijuana Law and Policy, The University of Denver Sturm College of Law

    When Attorney General Jeff Sessions announced last week that he was rescinding the 2013 Cole Memorandum, marijuana policy was once again back on the national stage. The Cole Memo, issued by the Obama Justice Department, stated that those using, producing, or selling marijuana in compliance with robust state regulations would not be targeted by federal prosecutors. With the Cole Memo gone, there was renewed concern that state-level marijuana law reform could be undone by federal enforcement of the Controlled Substances Act (CSA).

    The reaction against Sessions’s action was swift. Republican Senator Cory Gardner took to the floor of the Senate, condemning Sessions’s decision as a broken promise. Senator Gardner also announced that that he would block all Justice Department nominations until the Attorney General made good on his pledge to defer to the states on marijuana policy. Others on both sides of the aisle made similar calls on Sessions to respect the will of the voters in the 29 states that made marijuana legally available for at least some adults.

  • January 14, 2018
    Guest Post

    by Gregg Ivers, professor of government, American University. He is currently working on a book, Swingin’ at Jim Crow: How Jazz Became a Civil Rights Movement.

    In 1976, when I was in tenth grade, the dreaded “back-to-school” assignment for my American history class was to write an essay about the three most important Americans in our nation’s two hundred-year history. This was, I suppose, our school’s nod to the celebration of the Bicentennial of the Declaration of Independence. I chose Abraham Lincoln, Franklin Delano Roosevelt and Martin Luther King, Jr. It turned out that I was one of two people in my class to include King, the other being the class hippie, whose other two choices were Alan Ginsburg and Jimi Hendrix. My teacher returned the assignment to me the next day and said that I needed to write about someone “serious,” like George Washington, Thomas Jefferson or, and I kid you not, the Rev. Billy Graham. I told my teacher that I would rather write about Rev. King than Rev. Graham, and refused to change my mind. My teacher refused to change her mind as well. I received a D on the assignment because, as my teacher told me, Lincoln and Roosevelt were “genuine” Americans. I suppose it’s important to note here that I grew up and attended public schools in Atlanta, where, at the time, more than a few people still referred to the Civil War as the “War Between the States.” My teacher offered wise counsel: “Lincoln is still not all that popular around here, you know. Let’s not push things in the future.”

  • January 12, 2018
    Guest Post

    by Lawrence J. Fox, George W. and Sadella D. Crawford Visiting Lecturer in Law, Yale Law School

    “I’ve just told you he’s guilty.”

    Still ringing through the courtroom as the last day of Robert McCoy’s trial for murder came to a close, were the stinging words, “I’ve just told you he’s guilty.” If those words had been uttered by the prosecutor, the world would have taken little note. But they were the words of Mr. McCoy’s lawyer made over his client’s express objection and protestation of innocence. They represented the ultimate act of client betrayal made by the constitutionally guaranteed defender of Mr. McCoy’s rights, his one true champion, the only participant in the criminal justice system who was constitutionally required to fulfill Mr. McCoy’s wishes so long as the client was competent and they involved no illegal conduct. On January 17, these words will be at the center of discussion at the U.S. Supreme Court, when it hears this extraordinary case, McCoy v. Louisiana.