Category: Rule of Law

A hill to die on: protecting the rule of law in our constitutional republic

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Sometimes, a Man Really Does Bite a Dog

No Medals, No Gold Stars

Justice Kavanaugh does not deserve having a star pinned to his chest for following the rule of law, even though following the rule of law in this instance was contrary to the immediate political interests of his fellow Republicans. Nor do the rest of the Court, including Justices Alito and Thomas deserve a medal for letting Justice Kavanaugh do what he did. 

That said, in our depraved day and age, a judicial result compelled by legal precedent and logic, against the political and ideological interests of a court, seems like a Man Bites Dog story, even though it should be a Dog Bites Man headline. 

Today, in “Justice Kavanaugh stands up for state constitutional law in the Missouri congressional case,” SCOTUSblog explains it all:

A crucial case decided yesterday on the Supreme Court’s emergency docket will likely mean that in the upcoming November election Republicans will win only 6 of 8 Missouri congressional seats in the new House of Representatives, rather than 7 of 8, as they were hoping for.

In this case, Hoskins v. von Glahn, Republicans wanted the Supreme Court to jump in and second-guess a state supreme court on what is essentially a matter of state constitutional law. It would have been both legally wrong and politically damaging for the court to have done so. Late yesterday, Justice Brett Kavanaugh spurned the poisoned chalice without explanation. No justice dissented, at least not publicly. (Kavanaugh in fact denied the request himself, without referring it to the whole court; he would not have acted unilaterally unless he knew a majority of the court wanted no part of this request.)

We applaud this outcome, and we offer a few quick points of elaboration.

  1. Under both the U.S. Constitution’s Article I, section 4, and a clear congressional statute on the books, Missouri’s single-member districting lines for Congressional districts are to be determined by state law – including, of course, state constitutional law, as definitively determined by the state supreme court. The Missouri Supreme Court had already weighed in on the relevant state-law issues in Hoskins. (For the details, see Amy’s recent explainer.) There was thus no proper role for the U.S. Supremes at this point. Such is the square command of the court’s landmark ruling in the 2023 Moore v. Harper – a ruling involving congressional districting in North Carolina in which the court aligned with our amicus brief in that case (co-written with Steve Calabresi) and also built squarely on an earlier Roberts court precedent, Arizona v Independent Redistricting Commission, involving congressional districting in Arizona.
  2. Some prominent commentators in 2023 opined that the Moore court had left the door open for U.S. Supreme Court intervention seeking to second-guess state supreme courts in a broad range of future congressional districting cases. We thought that these commentators misread Moore, and we said so back in 2023. Since then – consistent with our reading of the case, and contra the predications of these other commentators – the U.S. Supreme Court has yet to second-guess a single state supreme court state-law ruling involving congressional districting.
  3. In Hoskins, the state supreme court was unanimous. It essentially ruled for Democrats even though a strong majority of that court had been appointed by Republican governors. This is what law looks like.
  4. Here is another thing that law looks like: What’s sauce for a Democratic goose in Virginia is sauce for a Republican gander in Missouri. When sore-loser Democrats tried to use the Supreme Court’s emergency docket to second-guess the Virginia Supreme Court on a state-law issue in a recent congressional districting case, the Supreme Court shot down the Virginia Democrats unanimously and immediately. Yesterday, the court quite properly did the same thing on the same brisk timeline to Missouri Republicans.
  5. The state of Missouri, via its constitution, has chosen to allow the people of the state, in certain specified situations, to weigh in directly on congressional districting before any ordinary state law changing the districting rules may go into effect. This is surely a choice Missouri is allowed to make under the 10th Amendment, the Republican Government Clause, Erie, and the Moore v. Harper line of cases. If the people of Missouri don’t like this system, they are of course free to change their state constitution. The state constitutional provisions at issue in Hoskins have a long and distinguished pedigree. The Missouri Constitution could clearly have prevented the state legislature from implementing ANY optional districting change absent two legislative votes separated by an intervening general election. Given that, the Missouri Constitution can surely take the lesser step of pausing new legislative districting rules in some situations, where opposition among the electorate is particularly intense and seemingly widespread, while allowing new legislative districting rules to take immediate effect in other, calmer and less partisan situations.
  6. Under the so-called Purcell principle, the Supreme Court has admonished that federal courts should not upset state-law election rules and practices on the eve of an election, absent a very clear violation of federal law. …

Hooray for Justice Kavanaugh! Hooray for the court! …

But There is Someone in this Story Who Deserves Special Recognition

That would by one Denny Hoskins, the Missouri Secretary of State, who is under order to to show up in court tomorrow morning and explain why his ass should not be held in contempt of court.

I hope that Secretary Hoskins will be given the award that he so richly merits.

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Mail-in Ballots Update

Stephen Vladeck, professor of constitutional law at Georgetown Law Center, lucidly explains what we know, and what we don’t (yet) know, about the courts’ treatment of Trump’s mail-in ballots power grab. Permit me to make a couple of points to put this in context. 

I don’t have a hidden agenda. I’m not trying to persuade you that the Republican justices are a bunch of jerks, nor am I trying to persuade you that some of the Republican justices are good guys who will stand up to Trump.

I’m just trying to present an understandable analysis of the current state of play, offered by the person who is probably the one individual most qualified to lay out that analysis. 

In my day, I am very sorry to say that I was a great expert on standing and injury issues in antitrust litigation. In the early 200s, I read and mastered and published a law review article about the vast body of case law on that topic. And here was my conclusion: all too often, a decision on standing is a rabbit that the judge will pull out of his hat if the plaintiff should win the case on the merits, but if, for ideological reasons, the judge really wants to defendant to win the case—so that, “without reaching the merits,” he rules that the plaintiff lacks standing to sue. 

As the good Professor Vladeck implies, we’ll just have to wait a little longer to see how that plays out here. 

And while we are waiting and seeing, there’s another twist to ponder. If the Republican justices want to issue a ruling that favors Republican political victories, then they will rule that mail-in ballots are hunky-dory and that Trump should stay the hell away from telling everyone which voting procedures are kosher and which are not. 

Trump is barking mad, suffering from a deep seated delusion that mail-in voting hurts his side. Indulging that delusion will in no way, shape, or form help Republicans win elections. I suspect that even Justices Thomas and Alito, whose grip on reality is somewhat shaky, know that Trump’s obsession with mail-in voting is Loony Tunes. 

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Disney and ABC: As the Worm Turns, Bigly

In December, 2024, Trump brought a bogus defamation case in Florida federal court, Trump v. American Broadcasting Companies. Rather than fighting and winning the case, as most had expected, Disney decided to pay Trump off, to the tune of $16 million. It was not Disney’s finest hour.

I am happy to report that the worm has turned. 

Yesterday, faced with threats by the Federal Communications Commission to yank licenses from ABC stations—to appease Trump’s anger at Jimmy Kimmel—the Disney company brought a new case, called American Broadcasting Companies v FCC, in federal court in the District of Columbia.

Always ask who the lawyers are.

In this case, lead counsel is a woman named Beth Wilkinson, a boutique litigation star who doesn’t eat Cheerios for breakfast. Instead, she eats nails. Specializing in bet-your-company litigation, Ms. Wilkinson has been lead trial counsel in 60 cases. 

Disney and its attorney are planning to take no prisoners.

Good for them. It’s none too soon. 

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Fauci Takes the Fifth

Yesterday’s hearing was an unedifying spectacle. In this post I will not, as Kinky Friedman used to say, cast asparagus, either at the good doctor, or at the odious Rand Paul, or in the direction of anyone else. I will not editorialize on anyone’s personality, or on anyone’s scientific acumen, or on public policy questions such as when schools should have been reopened after the covid epidemic began to abate. Nor will I pontificate about whether it’s a good idea to write candid thoughts on a government computer and then, when you leave office, to leave your candid thoughts on said computer, for your many enemies to find. 

I will say some things about the Fifth Amendment, and I will say those things in Q&A format. And I’ll also pass along some lucid observations I read in the news today.

Fauci Takes the Fifth: Some Questions and Some Answers

WHEN TESTIFYING UNDER OATH BEFORE A CONGRESSIONAL COMMITTEE, IS IT LAWFUL TO TAKE THE FIFTH BECAUSE YOU DON’T LIKE THE QUESTION OR BECAUSE THE SENATOR POSING THE QUESTION IS A BLOVIATING ASSHOLE?

No, it is not. You have to answer the question.

WHEN TESTIFYING UNDER OATH BEFORE A CONGRESSIONAL COMMITTEE, UNDER WHAT CIRCUMSTANCES IS IT LAWFUL AND PROPER TO PLEAD THE FIFTH AND THUS REFUSE TO GIVE A SUBSTANTIVE STANDARD?

When the witness has a reasonable belief that a truthful answer to the question would risk criminal prosecution.

DID YOU SAY RISK OF PROSECUTION OR RISK OF CONVICTION?

It’s risk of prosecution. If the witness thinks any such prosecution would be in bad faith, and that he would probably escape conviction, he may still refuse to answer if he reasonably fears prosecution. 

IN DETERMINING THE REASONABLENESS OF THE WITNESS’S FEAR OF PROSECUTION, IS IT LAWFUL TO TAKE INTO ACCOUNT THAT THE CURRENT ADMINISTRATION IS ON A CAMPAIGN OF BASELESS PROSECUTIONS OF PEOPLE IN THE MUCH SAME POSITION AS THE WITNESS?

I don’t have a case on point, nor have I done any legal research. But yes, the logical answer should be that, if a pattern of bad faith prosecutions is under way, the witness may take that current situation into account.

IN DETERMINING THE REASONABLENESS OF THE WITNESS’S FEAR OF PROSECUTION, IS IT LAWFUL TO TAKE INTO ACCOUNT THAT THE EXAMINING SENATOR HAS REPEATEDLY SAID THAT THE WITNESS SHOULD BE BEHIND BARS—AND THAT THERE IS EVERY REASON TO BELIEVE THAT SENATOR INTENDS TO LAY A PERJURY TRAP FOR THE WITNESS?

Yes. 

HOW DOES DR. FAUCI’S PARDON RELATE TO HIS LAWFUL INVOCATION OF HIS FIFTH AMENDMENT RIGHTS?

Dr. Fauci’s pardon was (paraphrasing and shortening slightly) for any criminal acts that he might have committee in the course of his government service between January 1, 2014 and January 19, 2025. It would not cover perjured testimony given in 2026, even if that false testimony related to previous acts that are within the scope of the pardon. 

WHY DID DR. FAUCI REFUSE TO ANSWER ABOUT THE COLOR OF HIS TIE?

Lawyers who advise witnesses invoking the Fifth to testify only as to name, rank, and serial number, in order not to risk waiving their Fifth Amendment protection. Sen. Hawley’s question was grandstanding for the cheap seats.

DID DR. FAUCI’S OPENING STATEMENT WAIVE HIS FIFTH AMENDMENT RIGHTS?

In general, it is not lawful for a witness to invoke the Fifth Amendment in a selective way, so that he can testify about facts that make him look good and avoid testifying about facts that make him look bad. Courts would call that a waiver of constitutional rights.

I expect that Sen. Paul and his posse will try their best to make a big damn deal about the opening statement as an alleged waiver of rights. All I can say now is that I’m confident that the matter was considered in great depth by Dr. Fauci’s legal team.

SEN. RAND PAUL SAYS HE WANTS TO SEE DR. FAUCI PROSECUTED FOR CONTEMPT OF CONGRESS. HOW WOULD THAT WORK?

It’s a complicated question, but—very broadly and somewhat inadequately—intentional obstruction of a legitimate congressional investigation would be a legal basis for contempt of Congress. 

Sen. Paul only needs for the Senate to act on a contempt resolution. It does not require approval in the House or by the President. If the Senate passes such a resolution, it will be referred to the Department of Justice. The Justice Department maintains that it is not legally required to act on such a referral, but, in this case, they would eagerly take the matter to a grand jury and attempt to get an indictment. If the case proceeds this way, the legal issue in a criminal contempt proceeding would be whether Dr. Fauci can be shown beyond a reasonable doubt to have tried to obstruct a lawful congressional inquiry by unlawful means, including an unlawful assertion of his Fifth Amendment rights. The issue of his reasonable fear of prosecution would be front and center. 

WHO IS DR. FAUCI’S LAWYER AND IS HE OR SHE ANY GOOD?

His lead counsel is David Schertler, who enjoys a stellar reputation as a white collar criminal defense attorney. In a world of great uncertainty, we may be highly confident that Dr. Fauci received top notch legal counsel. In fact, all things considered, I think it might have been legal malpractice to advise Dr. Fauci to do anything other than plead the Fifth. 

The Washington Post’s “Takeaway” on Dr. Fauci and the Fifth

Today’s WaPo offers five “takeaways” on yesterday’s spectacle, of which Takeaway Number 4 related to the subject of this post. It reads as follows:

4. Paul’s threat to hold Fauci in contempt raises new legal questions

The chairman said his committee plans to hold a vote next week on whether Fauci was in contempt of Congress. But he and his colleagues acknowledged legal uncertainty about how to proceed, complicated by President Joe Biden’s preemptive pardon for Fauci before Biden left office.

Lankford asked Paul if there is guidance on whether Fauci could be held in contempt for refusing to answer questions after making an opening statement. Lankford noted a 2013 episode in the House in which an IRS official made an opening statement and then invoked her Fifth Amendment right to not answer questions about whether her agency had wrongly targeted conservative groups. The GOP-led House concluded that the official had waived her Fifth Amendment rights by making an opening statement, and she was ultimately found in contempt.

Paul said that was among the legal questions lawmakers would consider. He added that the courts may need to settle whether, with “a presidential pardon that offers you complete immunity, you can still claim that you need protection” in a congressional hearing.

“Dr. Fauci isn’t liable for anything as long as he tells the truth,” Paul added.

Some past congressional witnesses have also repeatedly pleaded the Fifth. Martin Shkreli, a controversial pharmaceutical investor, refused to answer questions in front of a House Oversight Committee hearing in 2016, annoying lawmakers with his smirking. While lawmakers discussed holding Shkreli in contempt of Congress, they ultimately did not. 

Regina Wallace-Jones, the head of the Democratic fundraising engine ActBlue, also repeatedly invoked the Fifth Amendment during a congressional hearing last month in which Republicans pressed her on the platform’s process for vetting foreign donations.

“It is the only reasonable response to a proceeding that from the beginning has been about harassing a political opponent’s fundraising platform, not genuine oversight,” she wrote in The Washington Post.

House Republicans have threatened to hold ActBlue in contempt.

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He Shot Himself in the Foot

Eight Observations

  1. The reason why he presented “evidence” that contradicts the argument he wants to make is that he has a severe mental defect that prevents him from understanding the information he is given. He cannot keep himself from making illogical arguments because he is mentally incapable of distinguishing a logical argument from an illogical argument. 
  2. In his old age, this severe mental defect is getting even worse.
  3. Trump is an evil person. In other words, a sociopath.
  4. We are morally justified in hating and despising Trump. But that said, I am inclined to think that our best public strategy is to exhibit pity for Trump. 
  5. Every sentient person has observed that Trump wants to use last night’s speech as the predicate for a variety of forms of election interference. Every sentient person is right in that regard. But his malevolence is greatly inhibited by his incompetence.
  6. As a talking head said recently of his Iran strategy, the problem is not that he strategy is mistaken. The problem is that he does not know what strategy is. When all else fails, he may order a military coup. I don’t think it will work, but I am afraid we may find out whether it works or not.
  7. The American people unwisely reelected a proven traitor. They wanted lower consumer prices. They got higher consumer prices—along with a firehose of ridiculous lies about consumer prices. They wanted no more wars. They got the war in Iran—along with a firehose of ridiculous lies about the Iran war. 
  8. Although Trump is fortunate to have legions of uneducated and gullible followers, the environment he has created—higher consumer prices and a war in the Middle East—is not propitious for his gullible followers’ acceptance of his firehose of lies about the election. He has cried “Wolf!” way too many times. 
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E. Jean Carroll Gets Her Money, and None Too Soon

She also won $83.3 million in a later defamation case. A federal appeals court upheld that judgment in 2025, but Trump’s crack legal team is still flailing around, trying to avoid paying up. 

And, you know what? If Trump defames her some more, she’s going to sue him again. 

Lastly, with my apologies, a point of personal privilege. Back in the day, it was my great honor to work with Lewis Kaplan—now a senior federal judge, and the person who presided over the two E. Jean Carroll/Trump lawsuits, then a litigation partner at Paul Weiss. Together with my colleague Rick Holwell of White & Case, we achieved victory in a landmark antitrust case, Consolidated Gold Fields v. Minorco, see https://law.justia.com/cases/federal/district-courts/FSupp/698/487/2356328/

Mr. Kaplan was a gentleman and a scholar back then, and one hell of a litigator, and he remains today one hell of a federal judge. 

Unlike his unworthy successors at Paul Weiss, Kaplan knows how you have to deal with someone like Mango Mussolini. Congratulations to the judge. Well done. 

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Still Working for the Orcs

Today, the ever insightful Michelle Goldberg writes, in the New York Times, There’s No Escaping the Rot in This Justice Department. She observes, 

In the face of Trump’s attempts to turn the Department of Justice into his legal praetorian guard, many career employees seem to think they can keep their heads down and wait out their new masters. “We are the mole people now,” one department employee told the New York Times reporter Devlin Barrett in his forthcoming book, “The Department of Revenge: How Trump Took Control of American Justice.” But at a certain point, it may be impossible to serve both the cause of justice and an unjust government. …

The White House’s demands for political prosecutions “are putting career prosecutors into very, very difficult situations,” Barrett told me, forcing people to constantly ask where their red line is. Some in the Justice Department, he said, make a “Lord of the Rings” analogy. “Most of the people there can still do their jobs well and do good, meaningful work in law enforcement until the Eye of Sauron turns to you,” he said, meaning you get pulled into one of Trump’s vendettas. The problem is that even before that happens, you’re still working for the orcs.

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Are We Catastrophizing About Redistricting and the Voting Rights Act?

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I agree that we should make ethical judgments about issues of public policy. And I even agree that there is a time and a place to hurl slogans and jeremiads. But I also hold the—apparently eccentric—view that ethical judgments and jeremiads are best preceded by trying actually to understand a complex situation. 

Let us agree, at least for the sake of this discussion, that the majority opinion in the recent Supreme Court case on the Voting Rights Act was wrongly decided, deeply flawed as a matter of law, and reflected all manner of ethical shortcomings on the part of the Republican majority. 

That still leaves a lot of questions. One would be whether there is any moral/political/practical difference between 1) gerrymandering a lot of Black Louisianans into a weirdly shaped congressional district, as was formerly thought to be required by the Voting Rights Act, see below, versus

2) dissecting the city of Memphis into thirds, and then putting each third into a majority White district, as the Tennessee Legislature did last week. 

An even bigger question is whether the Republican redistricting effort has or has not been too clever by half, as argued by commentator Jonathan Martin in the video. His article may be found at https://www.politico.com/news/magazine/2026/05/11/trump-gop-redistricting-warning-00913677

A contrasting voice—and one very much worth listening to—is that of Mara Gay, a biracial woman, distinguished journalist, and member of the New York Times Editorial Board. 

I commend this video to your thoughtful attention.