When does robbery of a local brothel substantially affect interstate commerce? Apparently, pretty much always.

Last year, I posted about the Supreme Court’s review of, and unsurprising decision in, Taylor v. United States.  That case, up from the Fourth Circuit, held that the jurisdictional element of the Hobbs Act, 18 U.S.C. 1951, is satisfied where there is a robbery involving a drug dealer.

This past week, the Fourth Circuit issued another opinion raising a similar question about the application of the “affects commerce” element of the Hobbs Act to an unlawful business operation.  This time, rather than drug dealers, the court in United States v. Lopez considered the 2007 robbery of a Maryland brothel.

As the court described the facts of the case, the Prince George’s County brothel was located in a first-floor apartment, staffed by a Adelaida Garcia-Calderon and a doorman/money collector.  Two young men entered, demanded money, tied the doorman’s feet and hands, and then one of them raped Garcia-Calderon at knife-point.  Another man, Carlos Cordon, walked in on the robbery and was stabbed to death by one of the perpetrators; Cordon’s body was found behind the apartment building.  Garcia-Calderon and the doorman survived, but the case remained unsolved for several years.  Finally, local police were able to match the DNA from the crime scene to Miguel Ramon Cerros-Cruz, an MS-13 member, and Alexsi Lopez.  Police also had the testimony of an MS-13 member who was incarcerated with Lopez and overheard Lopez confess to the brothel robbery and killing, while also implicating Cerros-Cruz.

Lopez was indicted for violating, and conspiring to violate, the Hobbs Act.  (Although he was 17 at the time of the crime, Lopez was 24 at the time of trial, and was subject to trial in federal district court; the five-year statute of limitations was also extended because of the DNA testing, see 18 U.S.C. 3297).  Cerros-Cruz pleaded guilty; Lopez went to trial and was convicted.  The court sentenced Lopez to 20 years in prison.  (Though I remain curious: if there was evidence that the perpetrators committed the robbery, rape, or killing in order to maintain or increase their standing with MS-13, why not charge the case under VICAR, 18 U.S.C. 1959?).

The Fourth Circuit rejected Lopez’s claim on appeal that there was insufficient evidence to show the required effect on commerce.  Citing the familiar line that the Hobbs Act requires only a de minimis effect on commerce, the court noted that a brothel — like drug dealing — is an “inherently economic enterprise.”  Moreover, the court noted, in many cases, including this one, the brothel workers will travel across state lines.  The Government also provided evidence that the brothel used condoms manufactured out-of-state, and that Lopez and Cerros-Cruz targeted the brothel because of its nature as an illegal business that dealt in cash.

Although this case feels much like Taylor, that case expressly limited its holding to situations involving drug dealers as targets and to “drugs or drug proceeds,” because the federal government has jurisdiction over those markets.  “We do not resolve what the Government must prove to establish Hobbs Act robbery where some other type of business or victim is targeted,” the Court said.  After Taylor, it is worth asking whether a small-scale, local brothel engages in the kind of commercial activity over which the United States exercises jurisdiction the way that it does with respect to the controlled substance market.  After all, the Taylor decision was arguably inevitable in light of Gonzales v. Raich, which expressly decided that Congress had the power to regulate the interstate drug marketplace by reaching even wholly intrastate, locally grown marijuana.

The Fourth Circuit did not have a similar precedent on which it could rely with respect to federal jurisdiction over an interstate brothel marketplace.  Still, existing Hobbs Act case law seems to support the Lopez holding. This includes the more general rationale offered in Taylor — citing Raich — with respect to aggregation of economic activity and Congress’s ability to reach intrastate incidents of an activity that is part of a broader class of activity that is within Congress’s reach.  See also Perez v. United States.  Just as drug dealing is a “moneymaking endeavor,” as Taylor described it, so, too, is prostitution.   To reach this activity through the Hobbs Act, though, one must conclude that robbery of a brothel would also effect an interstate brothel marketplace over which the United States exercises jurisdiction.

In addition, multiple lower federal court cases recognize that where the robbery depletes the assets of a commercial establishment, then this is enough to satisfy the jurisdictional element.  But does the Lopez case involve the depletion of assets of a business, or simply of the individual sex worker or brothel manager?  Presumably, of course, someone else  — to whom Garcia-Calderon answers — is getting a cut of the cash.  But is that cash used for purposes connected with the business (such as to buy condoms, or bed linens, or other items associated with pursuing a business that involves sexual activity)?  Also, the fact that the condoms came from out-of-state provides a thin basis for satisfying what should be a more demanding jurisdictional analysis, unless the robbers took condoms, as well.  Nonetheless, federal courts have found the Hobbs Act satisfied on much thinner grounds than exist in Lopez.

Still, it is worth considering the gravamen of Justice Thomas’s Taylor dissent, and the efforts that Justice Alito made to limit the reach of the Taylor holding (perhaps to satisfy some of Justice Thomas’s concerns).  If the Fourth Circuit is correct that the brothel’s character as a commercial establishment, even an unlawful one, is by itself sufficient to satisfy the Hobbs Act (and thus the Commerce Clause), then it would seem that any robbery of any business — no matter how small, or how local, and no matter the volume of its business nor the amount of money that it makes — would be enough to justify the exercise of federal jurisdiction under the statute.  One wonders whether that rule would be consistent not only with the statutory definition of “commerce,” but also with a Constitution that denies a general police power to the federal government.

Perhaps the Fourth Circuit, even if ultimately correct, could have offered a more substantial analysis with respect to the effect on commerce.  It is one thing to acknowledge that the Hobbs Act incorporates all of Congress’s commerce power.  It is quite another to interpret the Hobbs Act in a way that gives Congress more than that.

 

Could the President assert executive privilege to block Comey’s Senate testimony?

Now that James Comey is slated to testify before the Senate Intelligence Committee next week, there has been some speculation as to whether President Trump will try to block Comey’s testimony with an assertion of executive privilege.  To be precise, such an assertion would only apply to testimony involving presidential communications; it would not cover any and all aspects of Comey’s testimony about his work as FBI director, so “blocking” is not entirely accurate.  Though I believe in a robust executive privilege where appropriate, I am skeptical of the use of executive privilege under these circumstances.  Still, I think it is fair to say that we are entering (mostly) uncharted waters next week.

The leading case on executive privilege is United States v. Nixon.  Although it recognized the constitutional dimensions of executive privilege, the Court ultimately found that the privilege is not absolute and rejected President Nixon’s assertion of the privilege.  This, of course, set the stage for Nixon’s resignation, after the House Judiciary Committee had adopted articles of impeachment.  The reasons for the Court’s ultimate decision are instructive.  According to the unanimous opinion by Chief Justice Burger, “when the privilege depends solely on the broad, undifferentiated claim of public interest in the confidentiality of such conversations, a confrontation with other values arises.”  The Court then stated, “[a]bsent a claim of need to protect military, diplomatic, or sensitive national security secrets, we find it difficult to accept the argument that even the very important interest in the confidentiality of Presidential communications is significantly diminished” by requiring in camera review by a federal district court.

Much of the Nixon case proceeds from there to explain why a generalized assertion of presidential confidentiality should yield to the demands of justice in a criminal investigation.  The privilege is rooted in the separation of powers and should ordinarily be accorded deference, but, again, is not absolute.  There is also, the Court acknowledged, constitutional dimension to the need for evidence in criminal cases.  Consequently, the Court held, where the claim of privilege is merely generalized (not specific to a particular military, diplomatic, or national security secret), “it cannot prevail over the demands of due process of law in the fair administration of criminal justice.  The generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial.”

Nixon’s application to the Comey testimony is therefore imperfect, but useful.  Two dimensions of executive privilege, as understood in Nixon, are important in relation to the upcoming Comey testimony: first, the nature of the proceeding; and second, the subject matter underlying a claim of privilege.

Nixon is really about the role of the privilege in criminal cases.  Comey is testifying in a congressional investigation, not a criminal one.  It is not clear precisely how Nixon is to apply in the congressional committee setting.  Because of the constitutional dimension of executive privilege that derives from the separation of powers, and the need to not simply protect the prerogatives of the presidency but also to protect against Congress, to quote Madison in Federalist No. 48, “drawing all power into its impetuous vortex,” there is a natural concern about compelling the disclosure of presidential communications to the legislative branch.

And yet, while executive privilege is constitutionally based, so is Congress’s power to investigate.  Congress has institutional prerogatives, too.  Claims of executive privilege therefore have often conflicted with claims about the need for information in a congressional inquiry; the implications for the separation of powers are obvious.  These conflicts are normally handled through a process of mutual accommodation and compromise by the legislative and executive branches.  Judicial review in such situations is not unheard of, but is rare.  And the Supreme Court has never had occasion to address the matter specifically.

Still, the relationship between this particular congressional investigation and the existing criminal investigation being conducted by the Special Counsel is undeniable, and likely close.  Moreover, although the congressional investigative setting is not strictly criminal, it can display attributes that look much like a criminal inquiry.  Congressional committees must respect legitimate invocations of the privilege against compelled self-incrimination; can grant immunity to witnesses; and have even referred individuals for criminal prosecution.  There is often a Congress-as-Prosecutor quality to congressional investigation and oversight, even though Congress lacks any formal criminal prosecution powers (even inherent contempt is not strictly criminal, though it looks the part).

So while it is tempting to distinguish Nixon by relying upon the formal difference between a criminal proceeding and a congressional investigative hearing (and there is a difference), the nature of this particular hearing and its connection to an ongoing criminal probe in the executive branch suggests that this scenario may be more like Nixon than it first appears.  Nevertheless, there is something to the notion that a claim of executive privilege should be taken quite seriously when the legislative branch is seeking to pierce the deliberative processes of the presidency.

This brings us to subject matter.  To make any assertion of the privilege palatable, the President would likely have to be very specific about the subject matter of his claim — he would have to assert that some military, diplomatic, or national security secret would be divulged as a result of Comey’s testimony, or, at a minimum, that the testimony relates to the decision-making functions of the presidency.  An assertion of privilege is also complicated here by the fact that the President has spoken openly and publicly about his private conversations with Comey.  This also raises the question of whether the President has waived any claim of privilege because he spoke publicly on the subject matter (I personally think this is a dubious argument as it has been couched by some, though it is a stronger argument with respect to testimony about very specific subjects; in other words, public statements about one subject would not necessarily serve as a waiver with respect to all conversations with Comey).

But waiver is not the only concern with respect to those public statements.  Rather, another major concern is that the President has implicated Comey’s own credibility (which Comey should have the right to defend), and has made statements that vaguely suggest, if not criminality, at least the possibility that the President has failed to “take care that the laws be faithfully executed,” as required by Article II.  That is a subject worthy of congressional oversight and inquiry.  Nixon’s concern about an undifferentiated claim of confidentiality conflicting with “other values” therefore seems useful in this context, given what we know about the need for information in this particular congressional investigation and the need to explore the veracity and implications of the President’s own public comments on the matter.

As a practical matter, Comey is likely to prefer to keep his testimony narrow, so as not to compromise the Special Counsel’s investigation.  But to the extent that it could cover his communications with the President, it remains unclear whether the President will attempt to intervene with a claim of executive privilege.  I suspect that doing so would be politically unwise, further contributing to an already damaging “what-is-the-Trump-Administration-hiding-now?” narrative.  Legally, the question is more complicated.  But if the Nixon decision is an authoritative guide in this situation, then that decision, along with the rule of law concerns that animate it, likely militates against recognizing the privilege here, unless the President can show something more than a mere general interest in confidentiality.

Can you evade federal prosecution if your heroin distribution is a religious exercise?

From the United States Court of Appeals for the Eighth Circuit, an interesting case on the limits of religious freedom in America, particularly at a time when we are debating the scope of statutes designed to enhance protections for religious exercise.  According to the court’s recent opinion in United States v. Anderson, the defendant (Timothy Anderson) was indicted for violating the Controlled Substances Act and admitted to distributing heroin.  But,  Anderson said, he is “‘a student of Esoteric and Mysticism studies’ who created a ‘religious non-[p]rofit’ to distribute heroin to ‘the sick, lost, blind, lame, deaf, and dead members of Gods’ [sic] Kingdom.'”  Relying upon the protections of the Religious Freedom Restoration Act (RFRA), Anderson argued that his heroin distribution amounted to exercising a “sincerely held religious belief.”  He also said he had no intention of stopping such distribution because to do so would compromise his religious faith.

The Eighth Circuit (correctly) rejected the claim and affirmed the conviction.  That seems unremarkable.  What is remarkable about the case, though, is that the court still required the Government to prove a compelling interest, and the use of the least restrictive means, under RFRA.  It is important, then, to remember the difference between the constitutional standard for religious exercise and the statutory standard that RFRA established.  The First Amendment standard remains governed by Employment Division v. Smith, which says that the Government need not satisfy strict scrutiny as long as it is applying a neutral and generally applicable law, even where the application of that law burdens religious exercise.  Under Smith, there is no question that application of the CSA to drug traffickers would be generally permissible, as having a rational basis.  RFRA, however, added a new layer to religious freedom law, increasing the Government’s burden.

Still, in Anderson, the Eighth Circuit said it had no difficulty finding a compelling interest, holding that “prosecuting Anderson under the CSA would further a compelling governmental interest in mitigating the risk that heroin will be diverted to recreational users.”  The chief ground for the court’s decision, then, was that Anderson distributed the heroin to those who were not sacramental users.  So note that even if Anderson has a sincere religious belief about the distribution of heroin, that belief is not enough to protect him once he distributes the drug to others for recreational use — the compelling interest relates to the end users, not Anderson himself.

Therefore, Anderson’s case is distinct from cases like Gonzales v. O Centro Espirita Beneficiente Uniao do Vegetal, in which the Supreme Court affirmed a preliminary injunction granted to a Brazilian-based Christian sect that uses a sacramental tea (hoasca) during communion.  One of the ingredients in the tea is dimethyltryptamine (DMT), which is a Schedule I controlled substance.  Customs officials intercepted the tea on its way to New Mexico, and threatened the church with prosecution.  But the Supreme Court affirmed an injunction on enforcement against the church, holding that the Government had failed to meet its burden under RFRA.  Consequently, rather than distinguish O Centro based on the comparative dangers of heroin as compared to hoasca (or peyote), the Eighth Circuit in Anderson instead distinguished O Centro on the ground that the heroin was not being distributed for sacramental usage.

What if, though, the end users claimed they were using the heroin for some sacramental purpose?  What if dealers, or co-conspirators in the trafficking, claimed that it was their understanding that the heroin would go only to those who would use it for sacramental purposes?

That, of course, is a very different case, but not one that is entirely unforeseeable. Indeed, the Eighth Circuit cited United States v. Christie, a Ninth Circuit case in which the operators of the “Hawaii Cannabis Ministry” distributed cannabis to its members (apparently, membership was not difficult to achieve).  But in that case, the ministry did not tell members that the cannabis was only for religious use, as opposed to recreational use.  What if it had?  If the Government has a compelling interest in preventing the use of cannabis for recreational, as opposed to religious, purposes, then doesn’t this require a fairly searching inquiry into the nature of the use and the sincerity of the user’s beliefs?  Otherwise, the Government could always simply say that there is a risk that even ostensible religious use would become recreational, and therefore carry its burden under RFRA, in light of Christie’s theory.  Indeed, the Anderson court noted that the district court in St. Louis did not evaluate the sincerity of Anderson’s religious beliefs, but rather assumed the sincerity of those beliefs and applied RFRA.

Is there a meaningful risk that drug traffickers and users will often, or increasingly, employ a religious-based defense to drug prosecutions, based on RFRA?  Probably not.  And even in cases in which RFRA is used as a tool for drug defendants, like Anderson, the Government’s interests in combating drug abuse are likely to carry the day.  Still, it is notable that statutory religious freedom law places the Government in such a defensive posture in serious drug cases.

Hat tip to IJ’s “Short Circuit” for spotting this one.

Would the Speech or Debate Clause protect a sitting Senator in confirmation hearings for a Cabinet post?

With the news that at least one poll shows a majority of Americans believe that Attorney General Jeff Sessions committed perjury and should resign, the question of General Sessions’s criminality has not yet entirely died, though it has weakened significantly since the President’s tweet about being “wiretapped” by President Obama.  As I explained previously here, I am confident that no prosecution will result.  Still, the lingering question about whether he lied to Congress and what his answers meant raises — as I mentioned last time — another interesting issue: because he was a United States Senator when he met with the Russian Ambassador, and when he testified at his confirmation hearings, would the Speech or Debate Clause of Article I, section 6 protect him from prosecution arising from his confirmation testimony?

To be clear, I think he is safe from prosecution, but for other reasons.  So here is my admittedly quick and ugly Speech or Debate Clause analysis.  Steven Calabresi has a very good piece here at The Hill, and Michael Stern has a characteristically thoughtful piece here at Point of Order.  I could be wrong about this particular constitutional problem, so, as always, I welcome other wisdom.

The Speech or Debate Clause says that for “any Speech or Debate in either House,” a Representative or Senator “shall not be questioned in any other place.”  It covers more than floor speeches, but it only protects “legitimate legislative activity,” according to the Supreme Court.  Activities beyond floor speeches, “must be an integral part of the deliberative and communicative processes” by which Senators and representatives fulfill their constitutional functions.  See Hutchinson v. Proxmire.  It is arguable that when then-Senator Sessions met with the Russian Ambassador in Cleveland, this was not a legislative act protected by the Clause.  That, of course, might depend upon what they discussed, which we do not know.  But a stronger argument exists that the meeting in Sessions’s Senate office was covered by the Speech or Debate Clause to the extent that it related to his work on the Armed Services Committee or otherwise to American foreign policy.  Of course, as the Court said in Gravel v. United States, not every act that is performed by a Senator or Representative, even in his official capacity, is a protected act.  See also United States v. Brewster.  But let us assume for the sake of this piece that each meeting was within the sphere of legitimate legislative activity covered by Article I, section 6.

Then there is the question of his testimony: would his testimony before the Judiciary Committee be protected?  I think not, because his testimony before the committee did not constitute an integral part of his legislative functions as a Senator.  So while his questioners would be protected because they were fulfilling their constitutional role of advice and consent, Sessions’s statements before committee were unrelated to his constitutional role as a Senator and therefore not “legitimate legislative acts.”

So here’s the problem: the Sessions controversy does not concern a prosecution for the meetings themselves; it concerns his testimony about those meetings.  Could it be, then, that as long as an activity is within the scope of the Speech or Debate Clause, a Representative or Senator does not have to truthfully answer questions about that activity under oath in a congressional committee?

It’s a complicated issue.  First, the Clause is essentially a separation of powers provision.  It protects the legislative branch against vindictive or abusive prosecutions by the executive branch.  See Gravel.  It also constitutionalizes a testimonial privilege, id., so that even the judiciary cannot compel a Senator or Representative to give over testimony or evidence arising from his or her legitimate legislative acts.  But in the Sessions case, the questioning was not done by the other branches.  It was done by the Senate itself.  Not only do the words “any other place” suggest that the Clause does not forbid questioning by the legislative branch, the separation of powers concerns underlying the Clause also suggest that the Clause should be read to limit only the executive and judicial branches from questioning members of Congress.

So one plausible reading of the Clause, based on both text and history, is that it does not forbid a Senator from questioning another Senator about his or her legislative acts and using those answers as a ground for decision-making.

This raises the next problem: while it is true that the initial questioning was done by the legislative branch, a perjury or false statements prosecution would be done by the executive, and would use his answers about a legislative act as evidence.  Is that forbidden?  This is much trickier.

The Court has said that the Clause would be undermined by admitting against a Senator or Representative evidence that references a past legislative act.  See United States v. Helstoski.  Still, if my premise above is correct, then one could argue that the evidence of Sessions’s alleged criminality derives from a proceeding in which he lacked the protection of the Speech or Debate Clause.  Again, using this line of argument, he had no testimonial privilege under the Clause when answering either Senator Franken’s question or Senator Leahy’s.  Therefore, on this line of argument, his answers to those questions — quite apart from the substance of his meetings with the Ambassador —  should be admissible against him.  I confess, though, this is a harder problem because it means using evidence (his testimony) concerning a presumptively (for these purposes) legislative act, which the Supreme Court has expressly forbidden.  If his meetings with the ambassador were legislative acts, then there is a good chance, as others have argued, that the Clause would forbid the Justice Department from using any evidence about those meetings, even derivative use.

A final question arises, though it is a different one than I have addressed above: can the Speech or Debate Clause protection be waived?  If his activities were protected, did Sessions waive the privilege by voluntarily testifying about those activities?  The Supreme Court assumed, without deciding, in Helstoski, that the Clause could be waived.  But the Court said even if a waiver is appropriate in this context, it requires “explicit and unequivocal renunciation” of the Clause’s protection.  See Helstoski (also describing the standard as “clear and unambiguous”).

In Attorney General Sessions’s case, if the above analysis is correct, it might be unnecessary to decide whether he waived the privilege because, at least in the Judiciary Committee, he did not have its protection in the first place (and thus there was nothing to waive).  But in an ordinary legal proceeding in which he was subject to questioning (under oath or not), or investigation, what would such a waiver look like?  Based on the language in Helstoski, it would seem not encompass implied waivers (such as in the Miranda context; in fact, the standard is more like invocation, rather than waiver, in the Miranda context).  So if, arguendo, Sessions had the protection of the Clause, merely agreeing to answer questions would not be adequate for a waiver of Speech or Debate protection.  He would have to offer a clear and unambiguous statement that he was not relying on the protections of Article I, section 6.

Still, the threshold question is the most important one: were Sessions’ meetings with the ambassador legitimate legislative acts?  To know that, in this context, we would have to have evidence of what was discussed.  Barring testimony from someone else, or some other evidence, it is almost as if, to establish protection under the Clause, Sessions would have to agree to reveal the substance of the meetings.  In other words, Sessions would have to agree to waive the Speech or Debate privilege in order to assert its protections.  To avoid this dilemma, it might be better to simply start with the presumption that the meetings were covered by the Clause — but nothing in the Supreme Court’s cases suggests that such a presumption applies to any and all acts by a sitting member of either house.

Again, this problem is of mostly academic interest, for now.  Still, given the frequency with which members of Congress are nominated for Administration posts, it is a problem worth considering in future confirmation hearings.

Suspected thief turns out to be felon in possession, but gun turns out to be inadmissible

Sometimes a federal gun possession crime results from an investigation specifically directed at the gun offense.  Sometimes, however, gun crimes result from investigations that have nothing to do with guns.  Just ask Phillip David Hernandez, who had an encounter with police as he walked next to a construction site that was located in a high-crime area and that was known for being the target of thieves interested in the construction materials there.  Did the police encounter turn up any stolen construction materials?  Nope.  It turned up a gun – which, as a convicted felon, Hernandez was not permitted to possess.  His case raises the question: was he “seized” for purposes of the Fourth Amendment when police questioned him from their patrol vehicle as he walked near the construction site?  If not, then the gun is admissible against him because the encounter is a “consensual” one, and does not implicate the Fourth Amendment.  But if it was a seizure, then the police have to demonstrate reasonable suspicion for the stop.  Can they?

According to the Tenth Circuit’s opinion in United States v. Hernandez, in October 2014, Denver police spotted Hernandez walking next to the construction site.  He wore all black clothing and carried two backpacks.  The site had been the subject of recent thefts of various materials, including sheet metal and copper piping.  Police suspected Hernandez might be serving as a lookout for thieves, though there was no one else around.  The officers also found it odd that Hernandez did not use the sidewalk on the other side of the street, but instead walked next to the construction area, essentially in the street.

When the officers pulled alongside him, Hernandez kept walking, and the officers followed along in a moving vehicle.  They did not display weapons nor raise their voices.  When asked where he was going and where he had been, Hernandez said he was at his grandmother’s and was headed home.  He then said, upon being asked, that he could not remember his grandmother’s address.  When asked if he would stop walking and talk to the officers, Hernandez complied.  When asked, he gave his real name but a false birthdate.  The officers pulled up his information on their computer, and it showed Hernandez’s mug shot and that he had violated parole, for which there was an active warrant.  He was informed of the warrant and approached by the officers on foot, and he began to walk away.  He reached for his waistband and an officer asked if he had a gun.  He said “yes,” the officer grabbed his arm, and a revolver fell to the ground.

Hernandez was indicted for being a felon-in-possession, 18 U.S.C. 922(g)(1), and filed a motion to suppress, which the district court granted.  The Government appealed.  The Tenth Circuit affirmed the suppression of the gun.

Was Hernandez seized?  Yes, this was a seizure that required reasonable suspicion, according to the court.  While this began, as do many police encounters on the street, as a consensual encounter that required no justification, it became a seizure when the officers asked Hernandez to stop walking and talk to them.  This was the point at which a reasonable person would not have felt free to terminate the encounter and continue on his way – considering that that it was dark, there were no other people around, and the request to stop was made by two uniformed officers who had been following him.  As the court put it, “a reasonable person would have believed that compliance with the ‘request’ was not optional.”

Now that we know he was seized, was there reasonable suspicion that would have justified the seizure?  No, the court said.  The police stop of Hernandez was, rather, based on “inchoate suspicions and unparticularized hunches,” the court wrote.  They had no evidence specific to Hernandez that he had committed any crime, and the mere fact that he was walking next to a location that had been the subject of previous criminal activity is not enough to make their suspicion of him reasonable.  Neither was the fact that he was in a “high-crime” area, or that he wore all black and had two backpacks, or that he chose not to use the sidewalk.

What about the fact that he could not recall his grandmother’s address?  The court found that the Government had not relied upon this argument previously, and should not be able to rely upon it now on appeal.  Still, that fact would not be entitled to much weight, the court said.  When each officer testified, neither relied upon this fact to establish their suspicions about Hernandez, “which,” the court said, “is understandable because ordinary experience tells us that a grandchild who knows the familiar way to his grandmother’s house may well not know her exact street address.”

A final aspect of this case is notable.  Could the Government have argued that the finding of the gun was sufficiently attenuated from the initial unlawful stop, given the existence of the active warrant for Hernandez, a la Utah v. Strieff?  Recall that in Strieff, the Court applied the attenuation doctrine to hold that the discovery of an untainted warrant breaks the link to an unlawful Terry stop.  As it happens, Strieff was decided after briefing and argument in Hernandez.  But the Government never relied on attenuation in the district court, and so had waived that argument on appeal.  Before Strieff had been decided, the Tenth Circuit noted, two other circuits followed the same rule that was ultimately recognized by the Supreme Court in Strieff.  So the attenuation argument was available to the Government, but the Government did not pursue it.

Query whether, had the attenuation argument been properly before the Tenth Circuit, Strieff would make the gun admissible.  Applying the Brown factors, as did Strieff, the Government would have had a persuasive argument that the discovery of the warrant here was an intervening circumstance that makes the gun admissible.

Judge Gorsuch and the “mainstream”

There is plenty of commentary on Judge Neil Gorsuch, the President’s nominee for the Supreme Court.  I won’t repeat it here.  The President has had a rough couple of weeks, but last night he stopped the bleeding, even if only temporarily.  Judge Gorsuch appears to be an excellent, if rather conventional, choice.  Chalk one up for the hated Establishment.

Now the fun part begins.  Democrats are already promising a filibuster, which will no doubt prompt Republicans to consider the Nuclear Option against which they so aggressively argued in the past.  Hypocrisy will be alleged on each side.  We have seen this movie repeatedly.

But be on the lookout for the following term: “mainstream.”  Democrats will likely say that they are concerned with whether Judge Gorsuch’s views and decisions are outside of the “mainstream.”  And this will become a convenient rhetorical tool for opposition on the merits.  But, “mainstream” as compared to what?  As compared to the views of Liberals?  As compared to the decisions of William Brennan or Ruth Bader Ginsburg?  As compared to all circuit judges?  As compared to other judges on his circuit?

Federal appeals court judges do not have the same law development function that Supreme Court Justices do.  Except when addressing issues of first impression, federal appeals court judges are typically bound both by Supreme Court precedent, and the precedent of their circuits.  Moreover, circuit precedent can vary from one circuit to another.  What is the accepted rule of law in one circuit may not be the rule followed in another circuit.  There is no question that Judge Gorsuch has reached results with which the Left will disagree.  But that cannot possibly be the test of whether a judge’s views are extremist or radical.  Very often legal precedent dictates, or at least points strongly in the direction of, a result that will be contrary to the preferred views of the legal Left.  So if the “mainstream” is important (and, as I say, we must determine what that means), then it is important to ask, among other questions, whether Judge Gorsuch’s work is within the “mainstream” of existing decisional law from the Supreme Court and his own circuit.

Furthermore, this hardly seems like a standard that Senate Democrats would follow faithfully.  For example, Thurgood Marshall held the view that the death penalty was in all circumstances cruel and unusual punishment. That view was so far outside of the mainstream of American legal thought, only one other Justice in the history of the Supreme Court at the time actually agreed with it (Brennan).  Of course, over time, the view has gained greater adherence, but is still a minority view in the judiciary.  Are we to believe that Senator Schumer, for example, would have opposed Thurgood Marshall’s nomination to the Court?

Other Democrats may oppose Judge Gorsuch as simple revenge for the Republican-controlled Senate’s failure to consider Merrick Garland last year.  I covered that ground after Garland’s nomination, here and here and here. Of course, Democrats may forget that it was their Party that was complicit in a similar act earlier in the Court’s history.  Justice Robert Trimble died in 1828, and President John Quincy Adams nominated Whig U.S. Attorney John Crittenden to replace Trimble.  But before Crittenden could be confirmed, Adams lost re-election to Democrat Andrew Jackson, and the Jackson supporters in the Senate refused to confirm Crittenden during the lame-duck period.  Instead, President Jackson eventually filled the seat in 1829 with Postmaster General John McLean (and to add insult to injury, removed Crittenden as U.S. Attorney; McLean would later write a famous dissent in Dred Scott v. Sandford).  That historical note aside, however, it is hard to see how one can oppose Judge Gorsuch now simply by arguing that the seat should have been filled by Judge Garland last year.  And if the result on this nomination process angers Democratic voters, perhaps they will remember that the next time they have to decide whether to get to the polls on Election Day.

Finally, beware the “Robert Bork’s America” attack.  This refers to Senator Edward Kennedy’s notorious slander of Judge Bork on the Senate floor, and represents a now all-too-conventional method for opposing a nominee: recite a hyperbolic litany of horrific results for vulnerable people if the nominee is confirmed, not the least of which will be a return to “back-alley abortions.”  (Of course, it is hard to see how the “back-alley abortions” claim works here, as there would still be a 5-vote majority on the Court for abortion rights; Justice Scalia’s death did not affect the Court’s alignment on that issue).  This kind of rhetoric is among the lowest forms of political dissent from a nomination, and it is this kind of rhetoric that should be considered out of the mainstream.  But don’t count it out this time.

Given the anger and impressive mobilization of the political Left in light of President Trump’s ascendancy, Senate Democrats will likely slouch toward any argument they can muster to oppose Judge Gorsuch, who surely knows of the bloody battle that is coming.  None of it is his fault, and he is likely to survive it anyway.   But “out of the mainstream”?  Hardly.

 

The rise of Joan Larsen

I learned over the past year or so that predicting Donald Trump’s next move is often a fruitless exercise. I therefore will not venture a definitive prediction about Trump’s upcoming pick for the Supreme Court.  Instead, I will simply say this: keep an eye on Justice Joan Larsen of the Michigan Supreme Court.

In some ways, Justice Larsen looks like an obvious choice to fill Justice Scalia’s seat.  She clerked for Scalia (and David Sentelle on the D.C. Circuit), she is a high-profile Republican lawyer who also served in the last Bush Administration, and her appointment would represent one more notable appointment for a Michigander, as Michigan was key to securing Trump’s election — Betsy DeVos (Education) is also from Michigan, and Ben Carson (HUD) grew up here.  And she is comparatively young (48).

In other ways, though Justice Larsen might not fit the mold to which we have become accustomed, her appointment would represent a welcome change.  Justice Larsen would break the Harvard/Yale stranglehold on the Court.  She went to law school at Northwestern, where she was first in her class and won several prestigious awards.  Notably, she received her undergraduate degree from Northern Iowa, which would make her the only Justice besides Justice Thomas not to have a bachelor’s degree from either Stanford or an Ivy League school (Thomas has a bachelor’s from the excellent Holy Cross).  So her appointment would certainly diversify the educational backgrounds of the current Court.  Moreover, like Scalia (and Elena Kagan, on the current Court) she brings the background of a full-time law professor (she taught at Michigan).

Of course, one might consider it a strike against her that she does not serve on a federal court.  Federal courts have generally been the proving ground for every appointment since Sandra Day O’Connor, the last appointee to serve on a state court but never a federal court (David Souter served on the New Hampshire Supreme Court, but then served on the First Circuit; Justice Kagan never served as a judge on any court; William Rehnquist had never served as a judge before his initial appointment, but became Chief Justice after 14 years as an associate justice).  But that is all the more reason to see Justice Larsen as a potential pick: Trump likes to buck trends and conventional wisdom.  Still, in addition to her impressive federal clerkships, she served as a deputy assistant at the Office of Legal Counsel (OLC) and worked at Sidley & Austin, so she has high-level federal law practice experience on her resume.  Indeed, the combination of federal and state experience might make her even more desirable.

Of course, it remains true that the likes of judges Diane Sykes and Bill Pryor will continue to garner the lion’s share of attention.  But regardless of who it is that ultimately gets the nod for the Court, it is important to remember two other positions that Trump must fill that also can help to shape the Administration’s approach to constitutional law.  Trump will need to pick a Solicitor General and the head of OLC.  Given Justice Larsen’s previous time as a DAAG at OLC, her background in separation of powers questions, and her current work on a state supreme court, she might be regarded as a good fit for either position.  Indeed, President-elect Trump needs to be surrounded by lawyers with, shall we say, heightened knowledge of separation of powers and constitutional structure.  And whoever gets SG could be naturally well-positioned for the next SCOTUS opening, should it occur during Trump’s term.  So even if Justice Larsen is not Trump’s pick for Scalia’s seat, she remains an attractive choice for other key legal positions in the Administration.

Trump would be wise to make his pick soon.  Place the Senate in the position of having to confirm the Cabinet and the SCOTUS pick all at once.  Senate Democrats will have limited political capital, and will need to decide where to use it: the appointments for State, EPA, Justice?  Or the Court?  So long as Trump’s SCOTUS pick is sensible and well-qualified, Democrats may be willing to forego a fight over the Court and focus their resources on a couple of picks for the Cabinet.

Again, this is not a prediction, just an observation: watch for the rise of Justice Joan.