Category Archive 'The Law'
07 May 2020

Print This And Carry in Your Wallet

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HT: Vanderleun.

01 Apr 2020

Harvard Law Professor Rejects Originalism

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Adrian Vermeule, Ralph S. Tyler, Jr. Professor of Constitutional Law at Harvard Law School.

He looks cherubic and harmless, doesn’t he? Well, he rejects the framers’ goal of limited government, preferring the promotion of morality and “the common good.”

He expressed his new vision of illiberal Dworkianism in a recent editorial in the Atlantic, titled “Beyond Originalism.”

Originalism comes in several varieties (baroque debates about key theoretical ideas rage among its proponents), but their common core is the view that constitutional meaning was fixed at the time of the Constitution’s enactment. This approach served legal conservatives well in the hostile environment in which originalism was first developed, and for some time afterward.

But originalism has now outlived its utility, and has become an obstacle to the development of a robust, substantively conservative approach to constitutional law and interpretation. Such an approach—one might call it “common-good constitutionalism”—should be based on the principles that government helps direct persons, associations, and society generally toward the common good, and that strong rule in the interest of attaining the common good is entirely legitimate. In this time of global pandemic, the need for such an approach is all the greater, as it has become clear that a just governing order must have ample power to cope with large-scale crises of public health and well-being—reading “health” in many senses, not only literal and physical but also metaphorical and social.

Alternatives to originalism have always existed on the right, loosely defined. One is libertarian (or “classical liberal”) constitutionalism, which emphasizes principles of individual freedom that are often in uneasy tension with the Constitution’s original meaning and the founding generation’s norms. The founding era was hardly libertarian on a number of fronts that loom large today, such as freedom of speech and freedom of religion; consider that in 1811, the New York courts, in an opinion written by the influential early jurist Chancellor James Kent, upheld a conviction for blasphemy against Jesus Christ as an offense against the public peace and morals. Another alternative is Burkean traditionalism, which tries to slow the pace of legal innovation. Here, too, the difference with originalism is clear, because originalism is sometimes revolutionary; consider the Court’s originalist opinion declaring a constitutional right to own guns, a startling break with the Court’s long-standing precedents.

These alternatives still have scattered adherents, but originalism has prevailed, mainly because it has met the political and rhetorical needs of legal conservatives struggling against an overwhelmingly left-liberal legal culture. The theory of originalism, initially developed in the 1970s and ’80s, enjoyed its initial growth because it helped legal conservatives survive and even flourish in a hostile environment, all without fundamentally challenging the premises of the legal liberalism that dominated both the courts and the academy. It enabled conservatives to oppose constitutional innovations by the Warren and Burger Courts, appealing over the heads of the justices to the putative true meaning of the Constitution itself. When, in recent years, legal conservatism has won the upper hand in the Court and then in the judiciary generally, originalism was the natural coordinating point for a creed, something to which potential nominees could pledge fidelity.

But circumstances have now changed. The hostile environment that made originalism a useful rhetorical and political expedient is now gone. Outside the legal academy, at least, legal conservatism is no longer besieged. If President Donald Trump is reelected, some version of legal conservatism will become the law’s animating spirit for a generation or more; and even if he is not, the reconstruction of the judiciary has proceeded far enough that legal conservatism will remain a potent force, not a beleaguered and eccentric view.

Assured of this, conservatives ought to turn their attention to developing new and more robust alternatives to both originalism and left-liberal constitutionalism. It is now possible to imagine a substantive moral constitutionalism that, although not enslaved to the original meaning of the Constitution, is also liberated from the left-liberals’ overarching sacramental narrative, the relentless expansion of individualistic autonomy. Alternatively, in a formulation I prefer, one can imagine an illiberal legalism that is not “conservative” at all, insofar as standard conservatism is content to play defensively within the procedural rules of the liberal order.

This approach should take as its starting point substantive moral principles that conduce to the common good, principles that officials (including, but by no means limited to, judges) should read into the majestic generalities and ambiguities of the written Constitution. These principles include respect for the authority of rule and of rulers; respect for the hierarchies needed for society to function; solidarity within and among families, social groups, and workers’ unions, trade associations, and professions; appropriate subsidiarity, or respect for the legitimate roles of public bodies and associations at all levels of government and society; and a candid willingness to “legislate morality”—indeed, a recognition that all legislation is necessarily founded on some substantive conception of morality, and that the promotion of morality is a core and legitimate function of authority. Such principles promote the common good and make for a just and well-ordered society.

To be sure, some have attempted to ground an idea of the common good on an originalist understanding, taking advantage of the natural-rights orientation of the founding era. Yet that approach leaves originalism in ultimate control, hoping that the original understanding will happen to be morally appealing. I am talking about a different, more ambitious project, one that abandons the defensive crouch of originalism and that refuses any longer to play within the terms set by legal liberalism. Ronald Dworkin, the legal scholar and philosopher, used to urge “moral readings of the Constitution.” Common-good constitutionalism is methodologically Dworkinian, but advocates a very different set of substantive moral commitments and priorities from Dworkin’s, which were of a conventionally left-liberal bent.

Common-good constitutionalism is not legal positivism, meaning that it is not tethered to particular written instruments of civil law or the will of the legislators who created them. Instead it draws upon an immemorial tradition that includes, in addition to positive law, sources such as the ius gentium—the law of nations or the “general law” common to all civilized legal systems—and principles of objective natural morality, including legal morality in the sense used by the American legal theorist Lon Fuller: the inner logic that the activity of law should follow in order to function well as law.

Common-good constitutionalism is also not legal liberalism or libertarianism. Its main aim is certainly not to maximize individual autonomy or to minimize the abuse of power (an incoherent goal in any event), but instead to ensure that the ruler has the power needed to rule well. A corollary is that to act outside or against inherent norms of good rule is to act tyrannically, forfeiting the right to rule, but the central aim of the constitutional order is to promote good rule, not to “protect liberty” as an end in itself. Constraints on power are good only derivatively, insofar as they contribute to the common good; the emphasis should not be on liberty as an abstract object of quasi-religious devotion, but on particular human liberties whose protection is a duty of justice or prudence on the part of the ruler.

RTWT

The framers were, of course, conscious that the new Republic would be composed of thirteen colonies, founded at different times by different groups of people for different reasons with differing cultures, economies, and dominant religious denominations. They were living in a time in which the disastrous European Wars of Religion loomed large in memory, and they had drawn the rational conclusion that attempts by the State to control the conscience of the individual with regard to opinion and forms of conduct not impacting others were both tyrannical and futile.

Professor Vermuele thinks otherwise. Having ascended to an eminent position in the modern academical meritocratic order, he considers himself wiser than Madison, Jefferson, Washington, Franklin, and the other framers, and he obviously believes his own contemporary apprehension of morality and “the common good” is better than theirs, and superior as well to that of the 330 million other living Americans whom he is prepared to instruct and coerce.

Personally, I am no more interested in being ruled by Platonic Guardians of the Roman Catholic Integralist bent than I am by being ruled by bien pensant left-wing sophisters like the late Ronald Dworkin.

15 Nov 2019

Indiana Is Clearly Still Part of the Real America

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Judges Andrew Adams, Sabrina Bell and Bradley Jacobs.

NPR describes an unfortunate situation involving three Indiana judges where things got a bit out of control that might happen to anyone:

Back in May, three Indiana judges got into a fight. It was the crescendo of an incident brimming with colorful details: a gaggle of judges drinking the night before a judicial conference, a failed attempt to visit a strip club called the Red Garter, a brawl in the parking lot of an Indianapolis White Castle.

The altercation apparently started sometime after 3 a.m., when one of the judges, Sabrina Bell, raised a middle finger at two men yelling from a passing SUV, and ended after one of those men shot two of the judges.

In between, the three judges took a number of actions that “discredited the entire Indiana judiciary,” according to an opinion posted by the Indiana Supreme Court this week, suspending the judges.

The court found that the three — Andrew Adams, Bradley Jacobs and Sabrina Bell — had “engaged in judicial misconduct by appearing in public in an intoxicated state and behaving in an injudicious manner and by becoming involved in a verbal altercation.” Adams and Jacobs engaged in further judicial misconduct “by becoming involved in a physical altercation for which Judge Adams was criminally charged and convicted.”

The document lays out the events as soberly as possible, but the details remain spicy:

    “While in town to attend a statewide educational conference for judicial officers, 10 hours before the program convened, Respondents walked the streets of downtown Indianapolis in a heavily intoxicated state. When Judge Bell extended her middle finger to a passing vehicle, neither Judge Adams nor Judge Jacobs discouraged the provocation or removed themselves from the situation.”

The three had ended up at a White Castle after trying to go to a strip club at 3 a.m. and finding it closed. A fourth judge went into the White Castle, while Bell, Adams and Jacobs stood outside.

Two men in the passing vehicle, Alfredo Vazquez and Brandon Kaiser, parked their car after the gesture from Bell.

Bell and Vazquez traded further insults. A physical altercation ensued among the four men, with Adams and Vazquez allegedly hitting and kicking each other as Jacobs and Kaiser wrestled on the ground. Kaiser then allegedly pulled a gun and shot Adams once in the stomach and Jacobs twice in the chest.

Adams and Jacobs were both seriously wounded and required emergency surgeries; Jacobs was hospitalized for two weeks.

Bell tried to stop the fighting by pounding on the door of White Castle for help and calling 911 once shots were fired.

While at the scene, Bell was recorded on video telling police detectives something akin to “I feel like this is all my fault,” though the opinion notes that Bell “was intoxicated enough that she lacks any memory of the incident.”

Kaiser, who allegedly shot Adams and Jacobs, has been charged with 14 crimes related to the brawl, including four charges of felony aggravated battery, according to The Indianapolis Star.

The court suspended both Jacobs and Bell for 30 days without pay. Adams, who pleaded guilty in September to one count of misdemeanor battery, is suspended for 60 days without pay. He was sentenced to 365 days in jail but was required to serve only two.

In the White Castle incident, the court said, the three judges “gravely undermined public trust in the dignity and decency of Indiana’s judiciary.”

RTWT

11 Jun 2019

Attorney Advertises

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30 Apr 2019

Good News: Judge Rules Confederate Statues Protected By State Law

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Statue of Lee removed from Charlottesville, VA park.

CBS19:

Charlottesville Circuit Judge Richard Moore has ruled that the statues are war monuments, which are protected under state law. That likely means the city doesn’t have the legal right to take them down.

In his nine page ruling, Moore cites the fact that both Robert E. Lee and Stonewall Jackson are depicted in their military uniforms and on horses associated with their time in the Civil War.

“I believe that defendants have confused or conflated 1) what the statues are with 2) the intentions or motivations of some involved in erecting them, or the impact that they might have on some people and how they might make some people feel,” Moore writes. “But that does not change what they are.”

Moore finds the issue to be so clear-cut that “if the matter went to trial on this issue and a jury were to decide that they are not monuments or memorials to veterans of the civil war, I would have to set such verdict aside as unreasonable…”

The lawsuit was filed after Charlottesville City Council voted to remove the statue of Lee in early 2017. City councilors Mike Signer, Kathy Galvin and Wes Bellamy are named individually for their roles in that vote, as are former councilors Bob Fenwick and Kristin Szakos.

While legal analysts have said this ruling could sink the city’s defense, Moore notes that this ruling doesn’t guarantee the plaintiffs will prevail.

He still has several other motions under consideration.

Plaintiffs spokesperson Buddy Weber says plaintiffs are pleased, but also cited the remaining motions as questions that still need to be answered.

In an email, city spokesperson Brian Wheeler says the judge now has to decide whether the city has to pay damages and attorneys fees and whether that question will go to trial in September.

In his ruling, Moore writes that he hopes to rule on remaining motions in the next month.

13 Mar 2019

Unethical Certainly, but a Federal Crime?

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The Hartford Courant pays special attention to the Yale angle.

The former women’s soccer coach at Yale University and a Greenwich lawyer are among 50 people who have been indicted in a vast college admissions scam the government says was carried out by unscrupulous college officials, a crooked admissions consultant and wealthy parents willing to pay bribes to get their children into some of the nation’s top universities.

In a conspiracy engineered by California businessman William “Rick” Singer that extends from elite schools to celebrities and wealthy executives, parents spent anywhere from $200,000 to $6.5 million to guarantee their children’s admissions to elite schools, said Andrew E. Lelling, the U.S. Attorney in Boston.

The college admissions system was rigged against students who worked hard, got good grades and engaged in community service who sought admission to elite colleges and universities, Lelling said Tuesday in announcing the indictments. The FBI called the investigation “Operation Varsity Blues” and said about 300 FBI and IRS agents arrested 46 people on Tuesday.

In addition to Yale soccer coach Rudy Meredith, 33 parents were indicted for their role in the scheme, Lelling said. They include the actors Felicity Huffman and Lori Loughlin, CEOs, and others, such as Gordon R. Caplan of Greenwich, co-chairman of the global law firm Willkie Farr & Gallagher LLP in New York. Caplan has not responded to a request for comment.

“All of them knowingly conspired with Singer and others to help their children either cheat on the ACT or Sat and or buy their children’s admission to elite schools through fraud,” Lelling said.

“There will not be a separate admissions system for the wealthy,” Lelling said. “And there will not be a separate criminal justice system either…“

Bribes were paid and frauds committed to gain admission for students to colleges such as Boston University, Yale University, Boston College, Northeastern University, Georgetown University, the University of Southern California, the University of California San Diego, the University of California Los Angeles, Wake Forest University, Stanford University and the University of Texas at Austin.

Lelling said it would be up to the colleges and universities who were the victims of the alleged frauds to determine what, if anything, to do with the students admitted under what the government says were fraudulent circumstances.

The government called Singer, 58, of Newport Beach, Calif., the mastermind of the scheme. He ran a college counseling and preparation business called The Edge College and Career Network LLC, which was known as The Key, and the nonprofit Key Worldwide Foundation, which the government says was nothing more than a sham organization that laundered the millions Singer’s company took in. Singer, who cooperated with federal agents during the investigation, was expected to plead guilty Tuesday to racketeering conspiracy, money laundering and other crimes.

In once instance, according to the court documents, Singer accepted a $1.2 million payment from a parent to secure a students’ admission to Yale.

More parents could be indicted as the investigation continues. …

“As the indictment makes clear, the Department of Justice believes that Yale has been the victim of a crime perpetrated by its former women’s soccer coach,” Yale spokesman Thomas Conroy said Tuesday. “The university has cooperated fully in the investigation and will continue to cooperate as the case moves forward.”

The government said it was tipped to the scheme while in the midst of an unrelated investigation.

There were three elements to the scheme: bribing SAT or ACT exam administrators to allow a person to secretly take the test in the place of a student, or to correct the student’s answers; pay bribes to university athletic coaches and administrators to have students admitted under the guise of being recruited as athletes, and using the facade of Singer’s charitable foundation to launder money and pay bribes. Some would then deduct on their taxes payments made to the phony foundation.

Longtime Yale coach Rudy Meredith, who resigned in November, is accused of accepting a $400,000 check from the family of a Yale applicant he ensured would be admitted to the university as part of the women’s soccer team, according to court documents. Meredith, who is accused of working in concert with Singer, has agreed to plead guilty to wire fraud, honest services wire fraud, and conspiracy and has been cooperating with the government’s investigation since April 2018 with the hope of receiving leniency when he is sentenced, according to the government.

“Beginning in or about 2015, Meredith agreed with Singer and others known and unknown to the United States Attorney to accept bribes in exchange for designating applicants to Yale as recruits for the Yale women’s soccer team, and thereby facilitating their admission to the university, in violation of the duty of honest services he owed to Yale as his employer,” according to court documents.

The applicant’s family paid Singer and his associated businesses about $1.2 million as part of the scheme, according to court documents.

That applicant did not play competitive soccer and Singer is accused of preparing a phony athletic profile to be used during the admissions process that made the student appear to be a co-captain of a prominent club soccer team in southern California.

Meredith agreed to secure a spot at Yale for another applicant in exchange for $450,000 from the applicant’s father, according to court documents.

The two men are charged with conspiracy to commit wire fraud and wire fraud.

“The corrupt behavior alleged by the Department of Justice is an affront to our university’s deeply held values of inclusion and fairness,” Yale President Peter Salovey wrote in a letter to the university community Tuesday. “I am committed to making certain the integrity of the admissions and athletic recruitment processes is not undermined again.”

“As the investigation unfolds, the university may take further actions. I will work closely with our athletics director and dean of undergraduate admissions to make any necessary changes to protect the university from the kind of criminal behavior the Department of Justice described today,” Salovey said.

Meredith, who lived in Madison, resigned from Yale in November and said he was leaving to after 24 years “to explore new possibilities and begin a different chapter in my life.”

Caplan, the Greenwich resident and lawyer in New York, is accused of paying Singer to help his daughter achieve a top score on the ACT, a college entrance exam, by having her purport to have a learning disability.

Caplan paid $75,000 last December to ensure that his daughter would get the desired score on the ACT, according to the indictment.

RTWT

$1.2 million to get into Yale? All I can say is: Wow!

Apparently, earlier this morning, in one of those disgraceful and utterly unnecessary dawn raids, Felicity Huffman was arrested by FBI agents with drawn guns!

Donald Trump really ought to put a stop to unnecessary dawn arrests and unnecessary displays of federal force. This kind of thing is patently an abuse of authority.

Reading about this scandal for the first time yesterday afternoon, I was, like most of America, I expect, basically amused. Parental desperation and excessive ambition is really a theme for comedy. Everybody knows perfectly well, after all, that representatives of the Kennedy and other dynasties, however lacking in intellectual orientation and however delinquent, get automatic entrée into Harvard.

Everybody knows that standards for representatives of minority victim groups are dramatically lowered, while standards for model minority Asians are dramatically raised. Everybody knows that there will be a large thumb on the scale in favor of the scion of plutocrat alumnus that paid for the University’s new science laboratory.

Life is not entirely fair.

Of course, bribing soccer coaches and cheating on tests is obviously wrong, and a number of schools and national testing services ought to be embarrassed, but I have trouble myself seeing just where the FBI and the IRS come into this.

Have we really reached the state of affairs in which every piece of chicanery, every payoff, every case of cheating is a FEDERAL CRIME?

Felicity Huffman was arrested for “conspiracy to commit mail fraud and honest services mail fraud.” Singer and Meredith are accused of “wire fraud, honest services wire fraud, and conspiracy.” Are wire fraud and mail fraud different or exactly the same thing? Who knows? Where did the mail or the telephone or telegraph come into any of this anyway?

Are we supposed to assume that because Felicity Huffman’s daughter’s college application was mailed, or emailed, in, and Felicity paid for some cheating on her daughter’s tests, that made it mail or wire fraud and brought the whole affair under federal jurisdiction?

This sounds to me exactly like the cases of federal authority brought under the principle of federal jurisdiction over Navigable Waterways and applied to some guy’s backyard that has seasonal rain puddles.

24 Aug 2018

Paying Off a Mistress Does Not Violate Campaign Laws

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Mark J. Fitzgibbons identifies 17 million reasons.

President Trump’s disgraced former personal lawyer, Michael Cohen, copped a plea deal on Tuesday in the U.S. District Court in Manhattan that includes his making a criminal campaign contribution in the form of hush money to Stormy Daniels.

Mark Levin and former chairman of the Federal Election Commission Brad Smith discussed this “non-crime” on The Mark Levin Show Tuesday night. Levin correctly points out that Cohen pleaded guilty to “a non-existent crime.”

Brad Smith later tweeted, “No matter how you cut it, paying blackmail to an alleged mistress is not an obligation that exists because you are a candidate, and hence not a campaign expenditure.”…

If in fact legal settlements of personal matters are illegal campaign contributions, then the list of guilty politicians certainly is long. And, as we learned in 2017 about the sexual harassment settlements paid by Congress using a slush fund from taxpayer dollars, the leaders in the House of Representatives of both political parties are implicated by the $17 million in payments over a period of 20 years and at least 268 settlements.

The Deep State is indeed acting like the Star Chamber, getting people to confess to nonexistent crimes to help ensnare others for political reasons.

14 Jul 2018

“There Oughta Be a Law!”

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The Atlantic quotes Professor Stephen L. Carter warning that those who favor the creation of new laws should always consider in the process the violence inherent in enforcing them.

Law professors and lawyers instinctively shy away from considering the problem of law’s violence. Every law is violent. We try not to think about this, but we should. On the first day of law school, I tell my Contracts students never to argue for invoking the power of law except in a cause for which they are willing to kill. They are suitably astonished, and often annoyed. But I point out that even a breach of contract requires a judicial remedy; and if the breacher will not pay damages, the sheriff will sequester his house and goods; and if he resists the forced sale of his property, the sheriff might have to shoot him.

This is by no means an argument against having laws.

It is an argument for a degree of humility as we choose which of the many things we may not like to make illegal. Behind every exercise of law stands the sheriff – or the SWAT team – or if necessary the National Guard. Is this an exaggeration? Ask the family of Eric Garner, who died as a result of a decision to crack down on the sale of untaxed cigarettes. That’s the crime for which he was being arrested. Yes, yes, the police were the proximate cause of his death, but the crackdown was a political decree.

The statute or regulation we like best carries the same risk that some violator will die at the hands of a law enforcement officer who will go too far. And whether that officer acts out of overzealousness, recklessness, or simply the need to make a fast choice to do the job right, the violence inherent in law will be on display. This seems to me the fundamental problem that none of us who do law for a living want to face.

But all of us should.

RTWT

20 Jun 2018

Everybody Wants the Emerald

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The Seattle Times reports on the judicial ruling.

The Bahia Emerald was first discovered in a mine in the Brazilian state of Bahia in 2001.

In the past 6½ years, nine men, one woman, three corporations and one government have laid claim to the giant emerald that’s been at the center of a protracted ownership dispute in Los Angeles County Superior Court.

Judge Michael Johnson, the second judge to preside over the case, said Thursday he has determined the owner.

His tentative ruling hands victory to a holding company, FM Holdings, owned by three businessmen, who claimed the emerald became theirs after it was put up as collateral in a $1.3 million deal for diamonds that ultimately fell through.

The company — co-owned by Idaho businessmen Kit Morrison and Todd Armstrong, and Jerry Ferrera of Florida — “has presented evidence establishing clear title to the Bahia Emerald as against all other ownership claims,” Johnson wrote in his decision.

In his ruling, Johnson chronicled the tortuous history of the gem after it was first discovered in a mine in the Brazilian state of Bahia in 2001. (Although media reports have put the gem at 840 pounds, Johnson said in his ruling that it was a mere 751.77 pounds, and nearly 3 feet long at its tallest point.)

The gem has been appraised at $372 million.

The Bahia Emerald, a massive black schist with nine protruding emerald crystals, came into the U.S. in early 2005. It was the subject of a series of agreements that shifted ownership to various people and involved various moneymaking schemes. During Hurricane Katrina in 2005, the emerald was submerged in floodwaters.

It was seized by Los Angeles County sheriff’s detectives in 2008 after one businessman reported it stolen from a Los Angeles-area warehouse. Sheriff’s officials tracked the gem to a Las Vegas vault. Since then, it has remained in sheriff’s custody in an undisclosed location as the legal battle slogged through the courts.

Since the case was first filed in early 2009, two men’s claims to the emerald were rejected by the courts, and the rest dropped or settled their cases, leaving only the three men behind the holding company still claiming ownership.

“A lot of very strange players showed up in this case,” said attorney Brown Greene, who represented the prevailing group.

RTWT

HT: Vanderleun.

18 Feb 2018

Really?

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Mueller Indicts 13 Russians

13 guys posting opinions on social media successfully interfered with the lawful functioning of an American presidential election overruling the wishes of 127+ million voters? Wow!

05 Jul 2017

Fireworks Are Not Legal in LA

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08 Oct 2016

What Happens If Trump Has to Withdraw?

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trump-sad

LawNewz provides answers to the question a lot of people are asking right now.

So, with exactly a month to go until Election Day, what happens if Trump is forced to drop out of the Presidential race? Or if the GOP forces him out? It’s a bit complicated, so let’s explain what we know about the process.

Republican National Committee Rule # 9 outlines what happens when there is a Republican nomination vacancy due to “death, declination or otherwise.”

It basically says that there are two ways for the Republicans to re-nominate a candidate if Trump drops out. 1) They could reconvene at another convention and have all of the 2,472 delegates vote, or 2) the 168-member committee could decide with each member getting a portion of votes based on the population of the state they represent. Number 2 seems like a more likely scenario.

Seems simple? Not so fast. Since we are exactly a month away from the election, there is one major problem: The ballot deadlines have passed in nearly every state. For example, in West Virginia, the law says a candidate must withdraw “no later than eighty-four days before the general election.” With thirty days to go, we are obviously too late. Each state has different rules about what happens if there is a vacancy. So, even if the Republicans pick a new nominee, it is likely Trump’s name will appear on the ballot in most states. …

Professor Edward Foley, who is the director of election law at Moritz School of Law at Ohio State, talked to LawNewz.com about what could happen if the GOP decided to go with another Presidential candidate (for example, Mike Pence):

    If Trump publicly withdraws, it makes it easier for GOP leadership to orchestrate a public plan in which to explain to the electorate that by voting for “Trump/Pence” on the ballot they are actually voting for Pence/Kasich (or Pence/_______, whoever they pick for the new V-P slot). It would be legally equivalent to the circumstance in which Trump had died, and the GOP needed to announce a replacement even though it was too late to reprint the ballots.

    But Trump doesn’t need to withdraw for the GOP leadership to pursue a comparable public plan whereby they repudiate him. The RNC could attempt to invoke its own rules to declare that, over Trump’s objections, he’s no longer the party’s nominee. If the RNC were to take that route, it might put the GOP on stronger legal footing under various state laws concerning the party’s slate of presidential electors.

    But from the perspective of the U.S. Constitution, and the Electoral Count Act of 1877, which are the two key pieces of federal law, it is not essential that the RNC take that kind of formal step under its own party rules. If there is a well-publicized plan in which McConnell, Ryan, and other party leaders all announce that they want the GOP presidential electors to vote for Pence for president, not Trump, and that’s what the GOP presidential electors do on December 19—in those states in which the GOP presidential electors received more popular votes that Clinton electors—then Pence (or whoever the GOP picks) is the choice that gets sent by those electors from those states to Congress for opening and counting on January 6.

    It obviously matters whether or not the GOP can reach 270 Electoral College votes for Pence (or whomever they pick) under this strategy. If not—in other words, if Clinton wins enough states so that her electors have 270 or more—what the GOP electors do is irrelevant. Clinton is declared presidential-elect, assuming Congress confirms so on January 6.

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