Can the President Pardon Himself?

Given recent reporting that raises the specter of a Presidential self-pardon, this unusual but not unprecedented question is in the air.

The place to start is with the Constitutional text itself, which is not surprisingly inconclusive on this issue. Article II §2 begins by declaring that the President “shall be commander in chief of the Army and Navy of the United States” and ends by stating “and he shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.” What’s clear is the exclusion of impeachment. What’s seemingly unclear is whether this power would extend to a self-pardon because that possibility is not specifically excluded.

Although there has never been a case of Presidential self-pardon in the United States, the possibility was contemplated with regards to President Richard Nixon. An Office of Legal Counsel Opinion, Memorandum Opinion for the Deputy Attorney General, offered a succinct answer to the “question whether the President can pardon himself”:

Under the fundamental rule that no one may be a judge in his own case, it would seem that the question should be answered in the negative.

The Memo does raise several other possibilities, including one under the 25th Amendment involving the Vice-President, as well as the legislative actions. The Memo, by Mary Lawton, was dated August 5, 1974; Nixon resigned a few days later. A month later, President Gerald Ford issued a Proclamation with a full pardon to Nixon.

A law review note article by now-Professor Brian Kalt of Michigan State University College of Law, Pardon Me?: The Constitutional Case Against Presidential Self-Pardons, springboards from the possibility that President George Bush, who had pardoned several people implicated in the Iran-Contra controversy would also pardon himself as he left office. Kalt concludes that “the intent of the Framers, the words and themes of the Constitution they created, and the wisdom of the judges that have interpreted it all point to the same conclusion: Presidents cannot pardon themselves.”

The bedrock principle that “no one can be a judge in his own case” is the foundation of the Kalt article and its sources as well as the OLC memo, as well as providing a rationale for even the possibility not being excluded in the Constitutional text.

It’s a principle, like so many others, that may be tested.

A Quick Review of Sexual Assault Statutes

Did Donald Trump admit to criminal activity? Generally, sexual touching or contact without a person’s consent is a crime. For example, here are some provisions of New York’s Penal Code that relate to the actions that Donald Trump admitted to in his statements captured on tape and revealed by the Washington Post.

Leda and the Swan by Antoine Bourdaine

§130.52 Forcible touching.

A person is guilty of forcible touching when such person
intentionally, and for no legitimate purpose:
1. forcibly touches the sexual or other intimate parts of another
person for the purpose of degrading or abusing such person, or for the
purpose of gratifying the actor’s sexual desire; or
2. subjects another person to sexual contact for the purpose of
gratifying the actor’s sexual desire and with intent to degrade or abuse
such other person while such other person is a passenger on a bus,
train, or subway car operated by any transit agency, authority or
company, public or private, whose operation is authorized by New York
state or any of its political subdivisions.
For the purposes of this section, forcible touching includes
squeezing, grabbing or pinching..
Forcible touching is a class A misdemeanor.

§ 130.53 Persistent sexual abuse.

A person is guilty of persistent sexual abuse when he or she commits
the crime of forcible touching, as defined in section 130.52 of this
article, sexual abuse in the third degree, as defined in section 130.55
of this article, or sexual abuse in the second degree, as defined in
section 130.60 of this article, and, within the previous ten year
period, excluding any time during which such person was incarcerated for
any reason, has been convicted two or more times, in separate criminal
transactions for which sentence was imposed on separate occasions, of
forcible touching, as defined in section 130.52 of this article, sexual
abuse in the third degree as defined in section 130.55 of this article,
sexual abuse in the second degree, as defined in section 130.60 of this
article, or any offense defined in this article, of which the commission
or attempted commission thereof is a felony.
Persistent sexual abuse is a class E felony.

There are several statutes that criminalize sexual contact without consent. “Sexual contact” is defined by the New York Penal Code, §130.00(3) as:

“Sexual contact” means any touching of the sexual or other intimate
parts of a person for the purpose of gratifying sexual desire of either
party. It includes the touching of the actor by the victim, as well as
the touching of the victim by the actor, whether directly or through
clothing, as well as the emission of ejaculate by the actor upon any
part of the victim, clothed or unclothed.

For example, § 130.55 Sexual abuse in the third degree.

A person is guilty of sexual abuse in the third degree when he or she
subjects another person to sexual contact without the latter`s consent;
except that in any prosecution under this section, it is an affirmative
defense that (a) such other person`s lack of consent was due solely to
incapacity to consent by reason of being less than seventeen years old,
and (b) such other person was more than fourteen years old, and (c) the
defendant was less than five years older than such other person.
Sexual abuse in the third degree is a class B misdemeanor.

S 130.65 Sexual abuse in the first degree.

A person is guilty of sexual abuse in the first degree when he or she
subjects another person to sexual contact:
1. By forcible compulsion; or
2. When the other person is incapable of consent by reason of being
physically helpless; or
3. When the other person is less than eleven years old; or
4. When the other person is less than thirteen years old and the actor
is twenty-one years old or older.
Sexual abuse in the first degree is a class D felony.

So, even this statement – – – “I just start kissing them. It’s like a magnet. Just kiss. I don’t even wait.” – – – could be an admission of a crime.

8th Annual Equality Conversation at CUNY School of Law: Beyond Digital Divides

The Annual Equality Conversations at CUNY School of Law typically pair a CUNY Distinguished Professor with a Professor of Law for an interdisciplinary discussion of a topic relevant to the “Liberty, Equality, and Due Process” (LEDP) with an audience of all 1L students in the required LEDP course, faculty members, and guests.

The topic for this year’s conversation is Technology and Education

It features Distinguished Professor Cathy Davidson, Director of CUNY Futures Initiative (pictured left)

and Professor of Law Natalie Gomez-Velez, Director of CUNY Law’s Center for Latino/Latino Rights and Equality (pictured right).

If you are not a member of the law school community and are interested in attending, please contact Professor Ruthann Robson.

Past conversations have been published and include:

A Discussion of Poverty, Class, and Economic Justice Between Frances Fox Piven and Stephen Loffredo, 11 N.Y. City L. Rev. 1 (2007).
A Conversation on Health and Law, with Janet Calvo & Dr. Nicholas Freudenberg, 12 N.Y. City L. Rev. 63 (2008).
Translating Equality: Language, Law And Poetry, A conversation with Kimiko Hahn and Jenny Rivera, 13 N.Y. City L. Rev. 233 (2010).
Work, Work, and More Work: Whose Economic Rights A Conversation Between Stanley Aronowitz and Shirley Lung, 16 CUNY Law Review 391 (2013).

Constitutional Challenge to New York’s Loitering for Prostitution Law

Is New York’s Loitering for the Purpose of Engaging in a Prostitution Offense, NY Penal Code § 240.37[2], unconstitutional? An important new complaint filed in the federal court by The Legal Aid Society in D.H. v. City of New York argues that the statute, facially and as applied, is unconstitutionally vague under the Due Process Clause and that its enforcement violates First Amendment rights to expression, Fourteenth Amendment rights to equal protection, and Fourth Amendment rights.

John Singer Sargent, Street in Venice, 1882, oil on wood

Essentially, the complaint alleges that the statute does not provide people with adequate notice of the conduct they should avoid to preclude arrest and results in the inclusion of First Amendment protected speech, expressive conduct, and association. Further, these lack of statutory guidelines have meant that law enforcement actions under the statute have been arbitrary as well as discriminatory on the basis of classifications involving race, ethnicity, gender, and gender identity.

In addition to the statutory arguments, plaintiffs allege that the NYPD guidelines and practices have failed to remedy the problems and have in fact exacerbated them. One central allegation regards attire:

Furthermore, the purported guidance provided in the NYPD Patrol Guide is equally vague and otherwise ﬂawed, thereby increasing arbitrary enforcement. For instance, the NYPD Patrol Guide instructs ofﬁcers that an arrestee’s “clothing” is “pertinent” to the probable cause inquiry. At the same time, the NYPD Patrol Guide does not provide any objective criteria regarding what types of attire may or may not have probative value for purposes of establishing probable cause, thus encouraging officers to make arrests based on individual, subjective opinions regarding what clothing someone who might be “loitering for the purpose of prostitution” would wear. In pre-printed affidavits provided by prosecutors (also referred to as supporting depositions), which prompt the arresting officer to describe “revealing” or “provocative” clothing, ofﬁcers often respond by citing a wide range of innocuous attire, such as “jeans,” a “black pea coat” or a pair of leggings.

[¶ 54]. The “black pea coat” as grounds supporting a solicitation for prostitution charge attracted attention in 2013 when a judge dismissed a charge which was based on the defendant “wearing a black peacoat, skinny jeans which revealed the outline of her legs and platform shoes.”

The unconstitutional inequality in the application of NY Penal Code section, §240.37[2] is analogous to the equal protection problems in New York City’s practice of stop and frisk. Recall that a federal judge found NYC’s practices violated equal protection in her opinion in Floyd v. City of New York, later stayed – – – and thereafter clarified – – – by the Second Circuit, followed by the City’s new administration agreeing with the decision and abandoning the appeals. One of the complaint’s pendent state law claims is a violation of the city’s own prohibition of bias-based profiling, NYC Admin. Code §14-151 (passed in 2013 by City Council overriding the then-mayor’s veto).

Loitering statutes in general, and more specifically loitering (and even soliciting) for “criminal sex” statutes, whether that sex is criminalized because it is commercial, public, or “unnatural” (as in previous sodomy prohibitions), have always been constitutionally problematic. And the use of dress or appearance to establish “probable cause” or to constitute elements of a crime are constitutionally suspect. It will be interesting to see whether or not the City defends the action, and if it does, how vigorously.

[cross-posted at Constitutional Law Professors Blog]

SCOTUS Starting its New Term: Preview of Constitutional Cases

The United States Supreme Court hears only small fraction of cases: The Court hears about 80 cases a year, of the approximately 8,000 requests for review filed with the Court each year, flowing from the approximately 60, 000 circuit court of appeals decisions and many more thousands of state appellate court opinions. And of this small fraction, generally about half involve constitutional issues, including constitutional criminal procedure issues.

Not surprisingly then, with the new Term starting October 3, the traditional first Monday in October, there are only a handful of constitutional law cases included among the less than 30 the Court has already accepted.

The CUNY Law Review will be holding an event Thursday, September 29, 2016 at 6pm at the law school with professors discussing the new Term. More info here.

Here’s a quick rundown of the questions the Court will be considering with more detail over at the Constitutional Law Professors blog.

Can – – – or how can – – – a state legislature redistrict the state and take into account racial demographics? The Court is set to hear two racial gerrymandering cases, both of which involve the tensions between the Voting Rights Act and the Equal Protection Clause with underlying political contentions that Republican state legislators acted to reduce the strength of Black voters; both are appeals from divided opinions from three-judge courts. In Bethune-Hill v. Virginia State Board of Elections, the challenge is a lower court finding that a number of Virginia House of Delegates districts did not constitute unlawful racial gerrymanders in violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. In McCrory v. Harris, a racial gerrymandering case involving North Carolina, the challenge is to a three-judge court’s decision finding a constitutional Equal Protection Clause violation.

In another Equal Protection Clause case, the question involves sex discrimination by the United States in its immigration law. In Lynch v. Morales-Santana, the underlying problem is differential requirements regarding US presence for unwed fathers and unwed mothers to transmit citizenship to their child; the Second Circuit held that the sex discrimination was unconstitutional, subjecting it to intermediate scrutiny under equal protection.

Are religious organizations entitled to be treated “equally”? Trinity Lutheran Church of Columbia, Mo. v. Pauley also includes an Equal Protection issue, but the major tension is between the Free Exercise of Religion Clause of the First Amendment and principles of anti-Establishment of Religion. Like several other states, Missouri has a so-called Blaine Amendment in its state constitution which prohibits any state monies being used in aid of any religious entity. Missouri had a program for state funds to be awarded to resurface playgrounds with used tires; the state denied the Trinity Lutheran Church preschool’s application based on the state constitutional provision; the Eighth Circuit sided with the state of Missouri.

There are also several cases involving the criminal procedure protections in the Constitution. Pena-Rodriguez v. Colorado involves a claim of racial bias on a jury in a criminal case. The Colorado Supreme Court resolved the tension between the “secrecy of jury deliberations” and the Sixth Amendment right to an impartial jury in favor of the former interest. The court found that the state evidence rule, 606(B) (similar to the federal rule), prohibiting juror testimony with some exceptions was not unconstitutional applied to exclude evidence of racial bias on the part of a juror. Bravo-Fernandez v. United States involves the protection against “double jeopardy” and the effect of a vacated (unconstitutional) conviction. It will be argued in the first week of October. Moore v. Texas is based on the Eighth Amendment’s prohibition of cruel and unusual punishment, with specific attention to capital punishment and the execution of the mentally disabled. In short: what are the proper standards for states to make a determination of mental disability?

Finally – – – at least for now – – – the Court will also be hearing a constitutional property dispute. Murr v. Wisconsin involves the Fifth Amendment’s “Taking Clause,” providing that private property cannot be “taken” for public use without just compensation. At issue in Murr is regulatory taking. The Court granted certiorari to a Wisconsin appellate court decision regarding two parcels of land that the Murrs owned since 1995; one lot had previously been owned by their parents. Under state and local law, the two lots merged. The Murrs sought a variance to sell off one of the lots as a buildable lot, which was denied. The Murrs now claim that the denial of the variance is an unconstitutional regulatory taking. The Wisconsin courts viewed the two lots as the “property” and concluded that there was no regulatory taking.

Look for updates as the Court adds more cases to its docket.

August Anxieties: The New Teaching Year Approaches; Is That Article Finished Yet?

For academics in the Northern Hemisphere, August is a fulcrum.

It’s depressing: Our summer scholarship project(s) may still be incomplete, the deadlines seeming to be rebukes rather than reasonable timetables. Or if we have finished, the end product is somehow not quite as spectacular as we had envisioned in June.

But it is also exciting! New classes and new students and new notebooks (or at least new laptop files). Yet this also brings its own distress, not only because of unfinished scholarship but because of the demands of teaching, not to mention committee, governance, and other administrative work that faculty members do.

One way to address the annual August anxieties is to reject the idea of a stark separation between “summer” and the “academic year,” and look for synergies between scholarship and teaching that enliven both. I’ve tried to do this in an essay, Enhancing Reciprocal Synergies Between Teaching and Scholarship, published in the Journal of Legal Education last year and available on CUNY Academic Works, as well as available – – – for now – – – on the once-open source ssrn. The article discusses the types of synergies that exist between teaching and scholarship for the legal academic – – – the professional, methodological, theoretical and doctrinal – – – which are easily adaptable to other academics. As is the overall suggestion that we should try to “pay attention” to the synergies between teaching and scholarship rather than viewing them as discrete, or even conflicting.

The article closes with a discussion of three “habits” of paying attention aimed at enhancing the reciprocal synergies between teaching and scholarship: letting the subconscious work, commemorating one’s thoughts & ideas, and engaging in “daily practice” – or not.

[image: “The Harvest Queen,” via]

Is the issue of sex-segregated facilities in schools headed to the United States Supreme Court?

Short answer: Probably sooner rather than later.

A Virginia school board has filed a stay application in the United States Supreme Court pending a petition for writ of certiorari to the Fourth Circuit’s opinion in G.G. v. Glouster County School Board. In G.G., a divided panel, reversing the senior district judge, concluded that Title IX’s ban on sex discrimination, 20 U.S.C. § 1681(a), requires schools to provide transgender students access to restrooms congruent with their gender identity. (The senior district judge had not reached the Equal Protection claim, so it was not before the Fourth Circuit.) In construing Title IX, the Fourth Circuit relied upon a January 7, 2015 opinion letter from the United States Department of Education, Office for Civil Rights, with a similar conclusion. The Fourth Circuit accorded deference to the agency interpretation of Title IX because the relevant regulation was ambiguous – – – perhaps not in the plain meaning, but in its application.

Meanwhile, thirteen states have filed a complaint and application for preliminary injunction in Texas, based on the same letter. The central challenge is failure to conform with the Administrative Procedure Act, including notice and comment for rule-making. However, the complaint also alleges that the federal government defendants “violated the Spending Clause” by engaging in “unconstitutional coercion” by “economic dragooning,” relying in part on the famous “Obamacare” case, NFIB v. Sebelius, in which the Court upheld most the ACA, but found constitutional issues with the medicaid expansion funding.

More legal discussion over at Constitutional Law Professors Blog here.

[image via]

Unsexing Birth Certificates

The controversial “bathroom statute” in North Carolina, HB2, regulates the proper use of sex-segregated facilities as consistent with one’s “biological sex,” defined as the “physical condition of being male or female, which is stated on a person’s birth certificate.”

That the legal grounding of sex-determination should be one’s birth certificate is both predictable and shockingly naïve. It also begs the questions of why birth certificates and other government documents designate M(ale) or F(emale). Haven’t we moved beyond that? Shouldn’t we?

In Identity Crisis: The Limitations of Expanding Government Recognition of Gender Identity and the Possibility of Genderless Identity Documents, a forthcoming article in Harvard Journal of Law and Gender, author Anna James (AJ) Neuman Wipfler explores the many issues surrounding sex designations on identity documents, in global and local contexts, highlighting the particularities of birth certificates. It’s such a sophisticated, nuanced, and informative article that I have difficulty believing its own birth was as a student paper for a Sexuality and Law course – – – full disclosure! – – – that I regularly teach at City University of New York (CUNY) School of Law. {NOTE: It’s being offered again this Fall at the Law School and nonlaw students are eligible to enroll!}

Wipfler ultimately argues that the elimination of sex designations should be the goal, but recognizes that several types of “identity crises” merit attention before wholesale abandonment of sex designations.

You can read more about the article on The Institute for Feminist Studies blog here – – –

Wipfler ultimately contends that “as long as the state records gender identity, it will also police its boundaries,” even as there are “still too many dangers to remove gender markers from all identity documents in the United States all at once.” Birth certificates are not only a strategic starting point, but their legal importance is demonstrated by laws such as the North Carolina one which would have many of us, especially those who appear gender-non-conforming, carry our official birth certificate whenever we might have to use the toilet.

No Damages for (Unconstitutionally) Disciplining Prisoner Speech

Maybe you’ve heard of Daniel McGowan? He’s well known as an environmental activist who lives in Brooklyn and featured prominently in the 2011 documentary, If a Tree Falls: A Story of the Earth Liberation Front.

He went to federal prison for arson in connection with his “activities,” but gained transfer to the Brooklyn House Residential Reentry Center (“RRC”) near the end of his sentence with work passes and other privileges. While at RCC in April 2013, McGowan published an article on Huffington Post entitled “Court Documents Prove I was Sent to Communication Management Units (CMU) for my Political Speech.”

Interestingly enough, the publication of this article about being disciplined for political speech caused McGowan to be disciplined. The RCC manager to essentially revoke the RRC status and remand McGowan back to the Bureau of Prisons – – – in solitary confinement – – – for an infraction of a regulation that provided “an inmate currently confined in an institution may not be employed or act as a reporter or publish under a byline.”

If that “byline regulation” sounds as if it might be a violation of the First Amendment, it is. It was challenged and a federal district judge in Colorado in 2007 ruled that it was. The Bureau of Prisons (BOP) did not appeal, and in fact the BOP instructed staff not to enforce it. In 2010, the BOP issued an interim regulation rescinding the byline regulation; in 2012 it issued the final rule.

McGowan was lucky; he had lawyers who soon figured out the byline regulation under which he had been charged was no longer in force and McGowan was returned to the RRC.

But McGowan sued the RCC personnel for a violation of the First Amendment. The Second Circuit Court of Appeals, affirming the district judge, rejected the claim in its opinion in McGowan v. United States, concluding that the BOP was insulated by qualified immunity. Qualified immunity protects the government from liability for violation of a constitutional right unless that right was “clearly established” at the time of the violation. Here, despite the conclusion of a district judge six years prior that the byline regulation was unconstitutional and the rescission of the byline regulation by the BOP, the Second Circuit held that the right the byline regulation infringed was not clearly established:

We conclude that, at the time the alleged violation occurred, our case law did not clearly establish that McGowan had a First Amendment right to publish his article. The Supreme Court has held that “when a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.” Turner v. Safley, 482 U.S. 78, 89 (1987)). This test is “particularly deferential to the informed discretion of corrections officials” where “accommodation of an asserted right will have a significant ‘ripple effect’ on fellow inmates or on prison staff.” Id. at 90. For example, the Supreme Court has upheld “proscriptions of media interviews with individual inmates, prohibitions on the activities of a prisoners’ labor union, and restrictions on inmate‐to‐inmate written correspondence.” Shaw v. Murphy, 532 U.S. 223, 229 (2001) (citations omitted).

In short, the ” only authority that McGowan has identified that involved expression similar to that at issue in this case is a district court opinion, which, of course, is not binding.” The court also rejected claims sounding in tort regarding the BOP’s failure to follow its own regulations.

So McGowan has no remedy for the BOP enforcing a rescinded and it seems unconstitutional regulation that caused his removal from a work program to solitary confinement.

If a tree falls . . . .

Muhammad Ali at the Supreme Court

Bust photographic portrait of Muhammad Ali in 1967. World Journal Tribune photo by Ira Rosenberg

With the reported death of Muhammad Ali, f/k/a Cassius Clay, a look back at Clay v. United States (1971) seems appropriate. In Clay, the Court reversed Ali’s conviction for “willful refusal to submit to induction into the armed forces.”

The Department of Justice had asserted that Ali’s claim for conscientious objector status did not meet the “religious” requirement, even as it had previously been expanded in the now-classic cases of United States v. Seeger (1965) and Welsh v. United States (1970). The Department of Justice had stated:

‘It seems clear that the teachings of the Nation of Islam preclude fighting for the United States not because of objections to participation in war in any form but rather because of political and racial objections to policies of the United States as interpreted by Elijah Muhammad. * * * It is therefore our conclusion that registrant’s claimed objections to participation in war insofar as they are based upon the teachings of the Nation of Islam, rest on grounds which primarily are political and racial.’

more here

Robson at CUNY Law

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