GRITS (getting radical in the south) Conference

by Taylor Loynd, VP of Administration, ACS Student Chapter, and 2L, University of Texas School of Law and Marcus Martinez, VP of Programming, ACS Student Chapter, and 2L, University of Texas School of Law

*Loynd and Martinez are co-directors of the 2017 GRITS Conference

GRITS. It’s not just our favorite breakfast meal. It’s also our favorite way of getting radical in the South. The GRITS (getting radical in the south) Conference started at the University of Texas School of Law in 2015 by a group UT law students who wanted to provide an opportunity for dialogue on the inherent challenges of social justice work in the region, and strategies to overcome them, among public interest law students, practitioners, and activists in the South. The 2017 GRITS Conference just wrapped at the University of Texas School of Law on September 22-23 and served as the ACS Texas Regional Convening.

Getting radical means something different for everyone involved in the conference. To some, it means being critical of how legal and social institutions disproportionately disadvantage people of color, women, members of the LGBTQ community, and those living in poverty. To others, it means letting your identity and values guide how to work inside and out of those social and legal institutions. Still, others believe getting radical is simply acting with compassion. The need for radical work, specifically in the South, evokes different issues for people, as well, whether it’s the legacy of segregated living throughout the region or the heavily militarized border shared with Mexico.

As co-directors of the 2017 GRITS Conference, we wanted to continue the original mission of GRITS and foster a continuing conversation about what it means to get radical in the South. We believe providing this space is crucial to continue social justice work in the South, especially in the new political climate. We partnered with organizers, community leaders, impact litigators, direct-services providers, policy advocates, and law students to collaborate and discuss Economic Solidarity, Healthcare Access for Vulnerable Populations, Immigration and Border Militarization, Implicit Bias, the Gavel Gap, Radical Defenses Against the Prison-Industrial Complex, Restorative Justice, and Women’s Economic Security.

In one of the most impactful sessions of the weekend, the Gavel Gap discussion brought Travis County Associate Judge Aurora Martinez Jones to the conference to describe her journey from law school to her career as a judge, all while facing the reality of significant disparities between the race and gender composition of the courts and the communities they serve. These disparities are known as the Gavel Gap and ACS has worked to create a database of information for over 10,000 currently sitting state court judges of general jurisdiction in all 50 states to examine the gender, racial, and ethnic composition of state court, which was then compared to the gender, racial, and ethnic composition of the general population in each state. Hearing Judge Aurora Martinez Jones speak about the compassionate, fair, and supportive way she operates her court room, presiding over the Child Protective Services and family drug court dockets, brought the exact kind of conversation we want to foster at GRITS. Furthermore, her call to all aspiring attorneys of color to consider pursuing a judgeship inspired the diverse members of the audience, and her presence made the possibility feel all the more achievable.

The GRITS Conference is an opportunity for law students, lawyers, and activists to build coalitions, share strategies for progressive lawyering, and develop new approaches for the future. This space is essential for the future of social justice work.

US Supreme Court will hear petition to review Microsoft search warrant case while momentum to modernize the law continues in Congress

by Brad Smith, President and Chief Legal Officer, Microsoft

*This piece originally appeared on Microsoft on the Issues on October 16, 2017.

In July 2016, the Court of Appeals for the Second Circuit agreed with Microsoft that U.S. federal or state law enforcement cannot use traditional search warrants to seize emails of citizens of foreign countries that are located in data centers outside the United States. Today, the Supreme Court granted the Department of Justice’s petition to review Microsoft’s victory. This is an important case that people around the world will watch. We will continue to press our case in court that the Electronic Communications Privacy Act (ECPA) – a law enacted decades before there was such a thing as cloud computing – was never intended to reach within other countries’ borders.

But as we have said from the beginning of this litigation, there’s a broader dimension to this issue as well. The continued reliance on a law passed in 1986 will neither keep people safe nor protect people’s rights. If U.S. law enforcement can obtain the emails of foreigners stored outside the United States, what’s to stop the government of another country from getting your emails even though they are located in the United States? We believe that people’s privacy rights should be protected by the laws of their own countries and we believe that information stored in the cloud should have the same protections as paper stored in your desk. Therefore, Congress needs to modernize the law and address these fundamental issues.

In his Second Circuit opinion, Judge Lynch urged Congress to act, and many members of Congress have publicly agreed. Legislation has been proposed in both houses to update the law and we support these efforts, regardless of the outcome of our case in the Supreme Court.

The current law, ECPA, was enacted in 1986 when the World Wide Web was still a few years away from being invented and no one conceived of conducting most work and personal business online. A world connected by cloud services simply didn’t exist. The ways in which we communicate have radically changed over the past three decades — but the laws governing those communications haven’t. Current laws don’t adequately support the needs of law enforcement anywhere in the world or protect our rights.

We challenged the warrant that resulted in this ligation because we believed U.S. search warrants shouldn’t reach over borders to seize the emails of people who live outside the United States and whose emails are stored outside the United States. We challenged the DOJ’s interpretation of the law because we strongly believe it is problematic in a number of ways:

It contradicts the basic premise that before a U.S. statute reaches across another country’s borders, it should be clear that’s what Congress intended when it passed the law.
We disagree with the premise of the government’s argument in favor of the warrant that customer email is the property of the email provider, not the customer, which would cause people to lose their rights when they go online.
It creates conflicts with the laws of countries in Europe and elsewhere around the globe, which are intended to protect privacy interests and restrict the disclosure and transfer of personal data to a third country.
It puts everyone’s emails at risk – if the U.S. government can unilaterally use a warrant to seize emails outside the United States, what’s to stop other governments from acting unilaterally to seize emails stored inside the United States? At a time when countries are rightly worried about foreign government hacking, the DOJ’s interpretation would open the door to accomplishing the same thing.

The current laws were written for the era of the floppy disk, not the world of the cloud. We believe that rather than arguing over an old law in court, it is time for Congress to act by passing new legislation, such as the International Communications Privacy Act (ICPA) of 2017. This past July, Senators Orrin Hatch, R-Utah, Chris Coons, D-Delaware and Dean Heller, R-Nevada, introduced ICPA in the Senate which builds on previous versions of the legislation. Representatives Doug Collins, R-Georgia, Hakeem Jeffries, D-New York, Darrell Issa, R-California, and Suzan DelBene, D-Washington, introduced an identical bill in the House.

ICPA provides sensible ways for cross-border data access, including a robust legal process to access the email of Americans and notification of foreign countries, when required under international law. Without these important clarifications, technology companies, law enforcement and the courts will continue to interpret and apply a law to technologies and circumstances far beyond what Congressional leaders envisioned in 1986.

Gun Violence Groups Call on Elected Leaders to Act

by Christopher Wright Durocher, Director of Policy Development and Programming, ACS

A coalition of 88 groups concerned with gun violence in the United States has released an open letter to the elected leaders of America, calling for meaningful legislative action in the wake of the shooting earlier this month in Las Vegas that left 59 people dead and more than 500 injured.

The letter assails Congress for considering two bills that would liberalize gun regulations—one removing restrictions on the sale of firearm silencers and the other effectively nationalizing the most permissive state concealed carry permit laws through federal mandated reciprocity between states. Though the National Rifle Association (NRA) and its gun industry allies defend these measures as commonsense and necessary to meet Second Amendment principles, these bills go far beyond the protections of the Second Amendment the Supreme Court laid out in the seminal case District of Columbia v. Heller.

The letter also calls on elected officials to take demonstrable steps towards ending gun violence through a series of reforms, including universal background checks, bans on assault weapons and high-capacity magazines, the repeal of broad legal immunity for the gun industry, and federal funding for gun violence prevention research.

To date, the only measure being widely discussed in response to the Las Vegas shooting is the regulation of so-called bump stocks, devices that use the kickback of a semi-automatic rifle to enable them to fire at nearly the rate of a machine gun. While gun violence prevention advocates consider this a necessary step in light of the Las Vegas shooter’s use of a bump stock, they believe it is insufficient to address the gun violence epidemic confronting the nation, which goes well beyond mass shootings.

Notably, the advocates address their demands to “American leaders, from the halls of Congress to town council chambers,” implicitly acknowledging that even absent federal action, there is much that state and local leaders can do to address gun violence. For instance, since the tragic shooting in Newtown, Connecticut in 2012, Congress has failed to take any meaningful steps to address gun violence, but states and cities across the country have passed 180 gun violence prevention laws that expand background checks, increase protections for victims of domestic violence, and limit the availability of certain types of weapons. Currently, seven states, as well as cities like Chicago and Washington, DC, ban assault weapons. Unfortunately, even at the local level, violence prevention efforts are being frustrated. As the recent ACS Issue Brief The Troubling Turn in State Preemption: The Assault on Progressive Cities and How Cities Can Respond, explains, “forty-three states have enacted broad preemption statutes related to firearms and ammunition, with eleven states absolutely preempting all municipal firearm regulations.”

Despite these obstacles, in addressing all of America’s elected leaders, gun violence prevention advocates recognize that meaningful steps to curtail violence require local, state and federal action.

Read the full letter here.

An Open Letter to Chief Justice John Roberts

by Eduardo Bonilla-Silva, Ph.D., president of the American Sociological Association

*This letter was originally published by the American Sociological Association.

During oral arguments in the gerrymandering case Gill v. Whitford, Supreme Court Chief Justice John Roberts referred to social science as "sociological gobbledygook." ASA President Eduardo Bonilla-Silva has responded in a letter, the content of which is below.

Dear Chief Justice John Roberts:

I write today on behalf of the American Sociological Association, the nation’s largest scholarly professional association of sociologists, to respond to a comment you made during oral arguments on Tuesday, October 3rd for the case of Gill v. Whitford. You said: “It may be simply my educational background, but I can only describe it [social science data] as sociological gobbledygook.”

We were pleased to learn that Justices Kagan and Sotomayor subsequently expressed concern about your statement and spoke to the value of social science measures. In this letter, we provide additional context for understanding the empirical nature of social scientific data and the ways it has served the national interests.

In an era when facts are often dismissed as “fake news,” we are particularly concerned about a person of your stature suggesting to the public that scientific measurement is not valid or reliable and that expertise should not be trusted. What you call “gobbledygook” is rigorous and empirical. The following are just a few examples of the contributions of sociological research to American society that our members offered in response to your comment:

Clear evidence that separate is not equal
Early algorithms for detecting credit card fraud
Mapped connections between racism and physiologic stress response
Network analysis to identify and thwart terror structures and capture terrorists
Pay grades and reward systems that improve retention among enlisted soldiers
Modern public opinion polling
Evidence of gender discrimination in the workplace
Understanding of the family factors that impact outcomes for children
Guidance for police in defusing high-risk encounters

Strategies for combatting the public health challenge of drug abuse

We are certain that the social scientists and legal scholars at your alma mater would be disappointed to learn that you attributed your lack of understanding of social science to your Harvard education. Should you be interested in enhancing your education in this area, we would be glad to put together a group of nationally and internationally renowned sociologists to meet with you and your staff. Given the important ways in which sociological data can and has informed thoughtful decision-making from the bench, such time would be well spent.

Sincerely,

Eduardo Bonilla-Silva, Ph.D.
President, American Sociological Association

Did President Trump Obstruct Justice?

by Barry H. Berke, co-chair, Litigation Department, Kramer Levin Naftalis & Frankel LLP; Noah Bookbinder, executive director, Citizens for Responsibility and Ethics in Washington; and Norman Eisen, Senior Fellow - Governance Studies, The Brookings Institution

*This piece was originally published by The Brookings Institution.

There are significant questions as to whether President Trump obstructed justice since taking office. We do not yet know all the relevant facts, and any final determination must await further investigation, including by Special Counsel Robert Mueller. But as we demonstrate in a new paper, “Presidential obstruction of justice: The case of Donald J. Trump,” the public record contains substantial evidence that President Trump attempted to obstruct the investigations into Michael Flynn and Russia’s interference in the 2016 presidential election through various actions, including the termination of James Comey.

As we explain in our paper, attempts to stop a government investigation represent a common form of obstruction. Demanding the loyalty of an individual involved in an investigation, requesting that individual’s help to end the investigation, and then ultimately firing that person to accomplish that goal are the types of acts that have frequently resulted in obstruction convictions, as we detail in our paper. In addition, to the extent the president’s conduct could be characterized as threatening, intimidating, or corruptly persuading witnesses, that too may provide additional grounds for obstruction charges. There is also an important question as to whether President Trump conspired to obstruct justice with senior members of his administration although the public facts regarding conspiracy are less well-developed.

While those defending the president may claim that expressing a “hope” that an investigation will end is too vague to constitute obstruction, we show that under applicable precedents such language is sufficient to do so. In that regard, it is material that former FBI Director James Comey interpreted the president’s “hope” that he would drop the investigation into Flynn as an instruction to drop the case. That Comey ignored that instruction is beside the point under applicable law. Potentially misleading conduct and possible cover-up attempts could serve as further evidence of obstruction. The president’s actions that might qualify as such evidence include: fabricating an initial justification for firing Comey, directing Donald Trump Jr.’s inaccurate statements about the purpose of his meeting with a Russian lawyer during the president’s campaign, tweeting that Comey “better hope there are no ‘tapes’ of our conversations,” despite having “no idea” whether such tapes existed, and repeatedly denouncing the validity of the investigations.

Arguments that the president has no potential obstruction exposure whatsoever are unpersuasive. The claim that the president’s legal authority to remove an FBI director is an absolute bar to obstruction liability is a red herring. As a matter of law, the fact that the president has the authority to take a particular course of action does not immunize him if he takes that action with the intent of obstructing a proceeding for an improper purpose. The president will certainly argue that he did not have the requisite criminal intent to obstruct justice because he had valid reasons to exercise his authority to direct law enforcement resources or fire the FBI head. While we acknowledge that the precise motivation for President Trump’s actions remains unclear and must be the subject of further fact-finding, there is already evidence that he may have acted with an improper intent to prevent investigations from uncovering damaging information about Trump, his campaign, his family, or his top aides.

Special Counsel Mueller will have several options when his investigation is complete. He could refer the case to Congress, most likely by asking the grand jury and the court supervising it to transmit a report to the House Judiciary Committee. That is how the Watergate Special Prosecutor coordinated with Congress after the grand jury returned an indictment against President Nixon’s co-conspirators. Special Counsel Mueller could also obtain an indictment of President Trump and proceed with a prosecution. While the matter is not free from doubt, it is our view that neither the Constitution nor any other federal law grants a sitting president immunity from prosecution. Regardless of how that question is resolved, there is no doubt that a president can face indictment once he is no longer in office. Reserving prosecution for that time, using a sealed indictment or otherwise, is another option for the special counsel.

Congress also has actions that it can take, including continuing or expanding its own investigations, issuing public reports, and referring matters for criminal or other proceedings to the Department of Justice or other executive branch agencies. In addition, there is the matter of impeachment. In its examination of the articles of impeachment drafted against Presidents Richard Nixon and Bill Clinton, as well as those drafted against Judges Harry Claiborne and Samuel Kent, our paper shows that Congress has previously considered obstruction, conspiracy, and conviction of a federal crime to be valid reasons to remove a duly elected president from office. Nevertheless, the subject of impeachment on obstruction grounds remains premature pending the outcome of the special counsel’s investigation.

Download “Presidential Obstruction of Justice: The Case of Donald J. Trump.”

*Citizens for Responsibility and Ethics in Washington (CREW) is a party (and is providing representation to other parties) in active litigation involving President Trump and the administration. Noah Bookbinder is the executive director and Norman Eisen is the chair and co-founder of CREW. Barry Berke and Kramer Levin are outside pro bono counsel to CREW.

Evading Review: The Administration’s Muslim Ban Arguments

by Ryan J. Suto, J.D., Government Relations Manager, Arab American Institute

The Trump Administration’s consolidated Muslim Ban cases, Trump v. IRAP and Trump v. Hawaii, were set for oral arguments today, October 10. However, the president released a Proclamation late last month to replace the challenged Executive Order, prompting the Supreme Court to remove the case from the argument calendar and request briefs on October 5 detailing whether litigation surrounding the now overridden and expired Executive Order is moot and thus should be denied further consideration.

The Government’s filing asserted that this case reaches the very definition of moot, arguing that the plaintiffs are asking the Court to address an issue of no practical importance by litigating an expired law. Further, the new Proclamation differs in substance and cannot be considered a mere continuation of the previous Executive Order. The Government writes, “If respondents (or anyone else) believes the Proclamation violates their rights, they can file new challenges...”

This simple and strict view of mootness is an attractive argument, and will allow the conservative members of the bench the rhetorical ammunition needed to side with the Government in revoking certiorari from the case entirely. This would avoid a substantive Constitutional assessment of the Administration’s Muslim Ban, requiring a new round of litigation to once again reach the Court.

Both filings from the ACLU and the State of Hawaii focus on the persuasive argument that the Government voluntarily created conditions for mootness, an exception in the case law. They argue that the Government “chose not to seek expedited merits review that could have been completed before the 90-day ban expired,” “chose to issue a proclamation just two weeks before oral argument,” and “reinstated effectively the same conduct in a new form.” The plaintiffs clearly felt this was the best argument for the Court, as it is detailed extensively in both filings.

There is another exception to mootness that received little attention from the plaintiffs, however. Legal questions which are capable of repetition but are brief enough to be considered moot by the time they reach the Court are not able to evade judicial review. As the Government notes, this exception applies “where ‘the challenged action [is] in its duration too short to be fully litigated prior to cessation or expiration,’ and ‘there [is] a reasonable expectation that the same complaining party [will] be subject to the same action again.’” However, in reality the Proclamation is substantially the same policy as the previous Executive Order, showing that a vast majority of the impacted parties will indeed be subject to the same actions. Indeed, this exception brings to the fore one of most important policy aspects of this case.

The Proclamation itself allows the Government to add and remove countries from the banned list at will without external review, and further allows for the granting of individual waivers to the travel ban. Based on habitual Administration rhetoric, there is no reason to believe Trump will not add additional Muslim countries to the list, such as Turkey. Importantly, these flexible policies allow the Government to grant exceptions to any potential litigant’s family or home country in an effort to avoid standing and claim mootness. In fact, the Government showed a willingness to use such a tactic in claiming mootness in Thursday’s filing, arguing, “...the claims of the only two individual respondents whom the courts of appeals found to have standing became moot wholly apart from the Order’s expiration when their relatives received visas.”

If the Supreme Court sides with the Government in ruling existing Muslim Ban challenges moot, the Administration will continue to impose a Constitutionally dubious and unchallenged travel ban on any individual from the specified countries and classes who is not able or willing to file suit against the Government. More broadly, if the Court rules that the 90-day Muslim Ban can evade substantive constitutional review, the precedent is set that this, or any future, administration is free to violate the Constitution so long as it is done on a temporary basis.

*Photo credit: By Rhododendrites (Own work) [CC BY-SA 4.0 (https://creativecommons.org/licenses/by-sa/4.0)], via Wikimedia Commons

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