Charles A. Reich (1928-2019)

I am truly sad to report that former Yale law professor Charles Reich died last Saturday at age 91.  He was a brilliant mind, a beautiful writer, a wise teacher, a sharp lawyer, a kind soul, and a dear friend and hero to many.

Here’s an obituary article in today’s NYThttps://www.nytimes.com/2019/06/17/books/charles-reich-dead.html.

Much will and much should be written about Charles Reich, his work, and his influence.  Writers will emphasize The Greening of America, surely and properly—these are its closing paragraphs, a permanent creed of hope:

We have all known the loneliness, the emptiness, the plastic isolation of contemporary America.  Our forebears came thousands of miles for the promise of a better life.  Now there is a new promise.  Shall we not seize it?  Shall we not be pioneers once more, since luck and fortune have given us a vision of hope?

The extraordinary thing about this new consciousness is that it has emerged out of the wasteland of the Corporate State, like flowers pushing up through the concrete pavement.  Whatever it touches it beautifies and renews, and every barrier falls before it.

We have been dulled and blinded to the injustice and ugliness of slums, but the new consciousness sees them as just that — injustice and ugliness —as if they had been there to see all along.  We have all been persuaded that giant organizations are necessary, but it sees that they are absurd, as if the absurdity had always been obvious and apparent.  We have all been induced to give up our dreams of adventure and romance in favor of the escalator of success, but it says that the escalator is a sham and the dream is real.

And these things, buried, hidden, and disowned in so many of us, are shouted out loud, believed in, affirmed by a growing multitude of young people who seem too healthy, intelligent and alive to be wholly insane, who appear, in their collective strength, capable of making it happen.  For one almost convinced that it was necessary to accept ugliness and evil, that it was necessary to be a miser of dreams, it is an invitation to cry or laugh.  For one who thought the world was irretrievably encased in metal and plastic and sterile stone, it seems a veritable greening of America.

They also will highlight his article “The New Property,” and how it led to the Supreme Court’s landmark decision in Goldberg v. Kelly.

There’s much, much more.

See each of Charles Reich’s books.

See everything that Charles wrote about the U.S. Supreme Court, including what he wrote about Justice Hugo L. Black, for whom Charles clerked during October Term 1953, the term in which the Court decided Brown v. Board of Education.

See the twenty-four (at least) deep and lyrical law review articles that Charles published between 1962 and 2010,

See this fine Twitter thread by Professor Karen Tani:  https://twitter.com/kmtani/status/1140983478416052225.

Here is a blog where Charles Reich wrote and posted some things in the past couple of years: https://www.charlesareich.com/blog-1?fbclid=IwAR2ZHBkLCrS6DlJEEPLzdZb2RsUDM_ecjLtxfLIIUro8xfKz1d2wvAayO_o.  In the “Observatory” section, see his great photos of his friend Justice William O. Douglas hiking alongside the C&O Canal, and a super photo of them sharing a look, a canteen, and smiles.

I recall some advice that Charles gave me about law professor scholarship (and really it is advice about literature, which Charles knew well, and which he believed that any serious writing should try to be.)  He said that it is important to find worthy topics and do the very best that you can, with all that you know and with all that you can learn, from inside yourself, to write about them.  I asked him what his topic had been, especially when he was getting started.  He recalled spending a summer, I think it was the one after his first year of teaching, sitting in the Yale law library, working at a table covered with many books, writing “about America.”

He did it very, very well – he saw America, he loved it, and he improved it.

Jackson List: Barnette Day

Today, June 14, 2019, marks the 76th anniversary of the U.S. Supreme Court’s decision, embodied in Justice Robert H. Jackson’s opinion for the Court, in West Virginia State Board of Education v. Barnette.

Barnette, decided amid the commendable patriotism of the U.S. home front during the dark middle period of World War II, invalidated a West Virginia board of education resolution requiring all public school teachers and students to participate in a salute to the American flag and a recitation of the Pledge of Allegiance.

The case was brought on behalf of students who were Jehovah’s Witnesses.  In deference to their belief that the Bible forbade them to bow down to graven images, they refused to salute the flag.  For that refusal, they were expelled from school.  Expulsion had the effect of making the children unlawfully absent, which subjected them to delinquency proceedings and their parents to criminal prosecution.

In Barnette, the Supreme Court held, 6-3, that the flag salute and pledge requirements violated the children’s constitutional rights, which exist to strengthen “individual freedom of mind in preference to officially disciplined uniformity…”

Although Jackson’s full opinion in Barnette bears close reading (and regular rereading), some words to consider particularly closely are his summary paragraphs:

The case is made difficult not because the principles of its decision are obscure but because the flag involved is our own.  Nevertheless, we apply the limitations of the Constitution with no fear that freedom to be intellectually and spiritually diverse or even contrary will disintegrate the social organization.  To believe that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous instead of a compulsory routine is to make an unflattering estimate of the appeal of our institutions to free minds.  We can have intellectual individualism and the rich cultural diversities that we owe to exceptional minds only at the price of occasional eccentricity and abnormal attitudes. When they are so harmless to others or to the State as those we deal with here, the price is not too great.  But freedom to differ is not limited to things that do not matter much.  That would be a mere shadow of freedom.  The test of its substance is the right to differ as to things that touch the heart of the existing order.

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.  If there are any circumstances which permit an exception, they do not now occur to us.

We think the action of the local authorities in compelling the flag salute and pledge transcends constitutional limitations on their power and invades the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control.

**Please also note** the FIU Law Review’s recent publication of a rich symposium on Barnette.  It includes my article “Justice Jackson in the Jehovah’s Witnesses’ Cases,”  based on my keynote address at FIU’s excellent Barnette 75th anniversary conference.  Click here to get to the symposium articles.

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Additional links—

  • West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943)—click here;
  • a 2006 roundtable discussion featuring sisters Gathie and Marie Barnett (whose surname got misspelled at some point in the litigation) and related commentary—click here;
  • a 2012 Jackson List post, “Arguing Barnette”—click here; and
  • a 2010 Jackson List post, “The Newest Barnette Sister”—click here.

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This post was emailed to the Jackson List, a private, one-way (me to you), entirely non-selective email list that reaches many thousands of subscribers around the world.  I write to it periodically about Justice Robert H. Jackson, the Supreme Court, Nuremberg and related topics. The Jackson List archive site is http://thejacksonlist.com/.  To subscribe, email me at barrettj@stjohns.edu. Thank you for your interest, and for spreading the word.

Jackson List: Donald Verrilli’s Jackson Lecture, Chautauqua Institution, July 1st

I am very pleased to report that Donald B. Verrilli, Jr., former Solicitor General of the United States (2011-2016), will give Chautauqua Institution’s 15th annual Robert H. Jackson Lecture on the Supreme Court of the United States, on Monday, July 1, 2019, at 4:00 p.m. in Chautauqua’s Hall of Philosophy.

Don Verrilli, a graduate of Yale College and Columbia Law School and a former law clerk to U.S. Circuit Judge J. Skelly Wright (D.C. Cir.) and U.S. Supreme Court Justice William J. Brennan, Jr., is an acclaimed American lawyer and courtroom advocate, including arguing fifty cases in the U.S. Supreme Court.

Following two decades in private law practice, Mr. Verrilli served in the Obama Administration, first as Associate Deputy Attorney General, then as Deputy White House Counsel, and then as Solicitor General of the U.S.

As Solicitor General, Mr. Verrilli, among other highlights, successfully defended the constitutionality of the Affordable Care Act and the constitutional protection of marriage equality.

Since 2016, Mr. Verrilli has been a partner in Munger, Tolles & Olson, handling matters before the Supreme Court and the U.S. Courts of Appeals and representing and counseling clients on litigation, regulatory, and public policy problems—for his law firm page, click here.

The Jackson Lecture will bring Mr. Verrilli to Chautauqua Institution, a special venue of arts, education, and recreation in western New York State.  Chautauqua was a very significant part of Robert H. Jackson’s life, his broad and self-directed education, his public speaking training and experiences, and his thinking.  For an earlier Jackson List post on Chautauqua Institution, click here.  To view a 2011 documentary, “An American Narrative,” on Chautauqua, click here.  And click here for its website.

The Jackson Lecture at Chautauqua Institution is a leading annual consideration of the Supreme Court of the United States, on which Justice Jackson served from 1941-1954, in the weeks following the completion of the Supreme Court’s annual Term.

This year, with the Supreme Court scheduled to begin its summer recess late this month and a number of momentous decisions expected before then, Mr. Verrilli’s Jackson Lecture will be especially well-timed.

In past years, Chautauqua’s Jackson Lecturers have been:

  • 2005:  Geoffrey R. Stone, University of Chicago professor;
  • 2006:  Linda Greenhouse, New York Times writer and Yale Law School professor;
  • 2007:  Seth P. Waxman, WilmerHale partner and former Solicitor General of the United States;
  • 2008:  Jeffrey Toobin, staff writer at The New Yorker and CNN senior legal analyst;
  • 2009:  Paul D. Clement, Kirkland & Ellis LLP partner and former Solicitor General of the United States;
  • 2010:  Jeff Shesol, historian, communications strategist, and former White House speechwriter;
  • 2011:  Dahlia Lithwick, senior editor at Slate and Amicus podcast host;
  • 2012:  Pamela Karlan, Stanford University professor;
  • 2013:  Charles Fried, Harvard University professor and former Solicitor General of the United States;
  • 2014:  Akhil Reed Amar, Yale University professor;
  • 2015:  Laurence H. Tribe, Harvard University professor;
  • 2016:  Tracey L. Meares, Yale University professor;
  • 2017:  Judge Jon O. Newman, of the U.S. Court of Appeals for the Second Circuit; and
  • 2018:  Justice Rosalie Silberman Abella, of the Supreme Court of Canada.

For a video library of some past Jackson Lectures, and also video of interviews with lecturers during their visits to Chautauqua Institution, click here.

For further information on Don Verrilli’s upcoming lecture, click here.

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This post was emailed to the Jackson List, a private but entirely non-selective email list that reaches many thousands of subscribers around the world. I write to it periodically about Justice Robert H. Jackson, the Supreme Court, Nuremberg and related topics. The Jackson List archive site is http://thejacksonlist.com/.  To subscribe, email me at barrettj@stjohns.edu. Thank you for your interest, and for spreading the word.

Invoking “Nuremberg”—Calling “Nazi,” Really—Too Flippantly in Chicago

During Chicago’s recent mayoral campaign, the Chicago Tribune published an article on the career of candidate Lori Lightfoot, a lawyer.

The article recounted, among other details, an incident when Lightfoot, serving in 1999 as an Assistant United States Attorney, allegedly misled a federal judge.  This resulted in her later reprimand by another federal judge, U.S. Circuit Court Judge Richard Posner.

In her defense, Lightfoot explained that the incident occurred when she was “a junior lawyer following the advice of people who were much more experienced than me [sic],” and that a U.S. Department of Justice inquiry had determined that she had not “engaged in professional misconduct or exercised poor judgment.”

In response to the Tribune’s article, Scott Cisek, a senior aide to Lightfoot’s opponent Toni Preckwinkle, posted on Facebook a photograph of nine former Nazis sitting in the dock as defendants before the International Military Tribunal at Nuremberg during 1945-46.  The photo had a top caption ” ‘JUST FOLLOWING ORDERS’ ” and, at bottom, “HISTORICALLY THAT EXCUSE HASN’T WORKED OUT SO WELL.”

Cisek soon deleted his post and apologized.

Preckwinkle fired Cisek from her campaign.

Lightfoot, in the end, defeated Preckwinkle.

The enormous crimes of true Nazis, as proven and adjudicated in the Nuremberg trials, are matters to study, learn, and teach, with accuracy and a sense of proportion.

RIP, Dr. Walter V. Powell (1929-2019)

I write once, twice, or a few times a month to The Jackson List, a private, now very large and ever-growing email list, about U.S. Supreme Court Justice Robert H. Jackson and related topics.

One result, unexpected at first and now a great pleasure, is that people respond to Jackson List posts by emailing back to me.  Sometimes they just send thanks.  Other notes are more substantive, sometimes very personal and erudite.

Through these notes, which I try to read and at least to acknowledge (although the volume can be daunting), I’ve made a lot of special “friends”—not in-person friends, but the electronic version of what once were pen pals.

Earlier this week, an email bounce message alerted me that the email address of Walter V. Powell, long a Jackson List subscriber and one who wrote back to me regularly, was no longer functional.  By Googling, I learned that Walt Powell, professor emeritus of political science at Slippery Rock University in Slippery Rock, Pennsylvania, age 90, died on February 27, 2019.

Dr. Powell lived a long and accomplished life.  Some of it, including his family life, his World War II military service, his education, his teaching, and his community commitments, is chronicled in this obituary.

In his emails to me, Walt Powell always sent thanks for Jackson List posts and expressed his particular interests.  One was the World War II—his—generation, including particularly people who had served on Justice Jackson’s staff prosecuting Nazi war criminals at Nuremberg in 1945-46.

Walt Powell greatly admired one of them, Whitney R. Harris.  Indeed, Walt got to know Whitney through hosting him as the keynote speaker at a Slippery Rock University conference on the Nuremberg trial.  Later, Walt lamented Whitney’s failing health, then his death, and Walt remembered Whitney always.  Walt also wrote to me when “Nurembergers” Richard Sonnenfeldt, Peter Calvocoressi, Arno Hamburger, and Ernest Michel each passed away.  Walt reported to that he had used some of my writings on Nuremberg when he lectured in a class on war crimes, and that he had visited the Robert H. Jackson Center in Jamestown, New York.

Walt also, every holiday season, sent his greetings, thanks, and good wishes.

This post, in a small way, reciprocates that sentiment.  I am grateful that we were, in our historical studies, biographical interests, and priorities, truly colleagues.

Jackson List: The Federal Prosecutor (1940)

On this date in 1940, Robert H. Jackson—age forty-eight, three months into his service as Attorney General of the United States—gave one of his most important, famous, enduring speeches:  The Federal Prosecutor.  He spoke on that Monday to the chief federal prosecutors of his day, the U.S. Attorneys then serving in each Federal Judicial District across the country.  They were assembled in the Great Hall at the U.S. Department of Justice in Washington, D.C., for the Second Annual Conference of U.S. Attorneys.

Attorney General Jackson had moved up to that position from having been Solicitor General of the U.S., then DOJ’s number two position.  As a new AG in 1940, he was leading a Department that had been misdirected and, as a result, badly demoralized.  This speech was part of Jackson’s work to clean up DOJ.  The speech offered his vision of proper, ethical conduct by federal prosecutors.  It was, you will note, the antithesis of an April Fool’s Day message.

Jackson’s speech is quoted often.  I recall first reading of it in Justice Scalia’s dissenting opinion in Morrison v. Olson (1988), which quotes from it liberally, and then getting and reading the whole Jackson speech to get a better understanding of it in full, in context.  I have read it many times since then—it was, for example, handed out as assigned reading to many attorneys by a senior DOJ official when I worked in there in the 1990s, and I completed the assignment.  I have heard or read most Attorneys General, Deputy Attorneys General, and other senior DOJ officials, including recently, quote from Jackson’s speech in their own speeches, other public remarks, and written work.

Attorney General Jackson’s speech bears rereading in full.

Jackson’s speech then bears what he hoped in 1940 that it would accomplish:  absorption and implementation by every “gentleman,” and today also every gentlewoman, who wields federal prosecutorial power.

 

*              *              *

 The Federal Prosecutor

By Robert H. Jackson

Attorney General of the United States

April 1, 1940

            It would probably be within the range of that exaggeration permitted in Washington to say that assembled in this room is one of the most powerful peace-time forces known to our country.  The prosecutor has more control over life, liberty, and reputation than any other person in America.  His discretion is tremendous.  He can have citizens investigated and, if he is that kind of person, he can have this done to the tune of public statements and veiled or unveiled intimations.  Or the prosecutor may choose a more subtle course and simply have a citizen’s friends interviewed.  The prosecutor can order arrests, present cases to the grand jury in secret session, and on the basis of his one-sided presentation of the facts, can cause the citizen to be indicted and held for trial.  He may dismiss the case before trial, in which case the defense never has a chance to be heard.  Or he may go on with a public trial.  If he obtains a conviction, the prosecutor can still make recommendations as to sentence, as to whether the prisoner should get probation or a suspended sentence, and after he is put away, as to whether he is a fit subject for parole.  While the prosecutor at his best is one of the most beneficent forces in our society, when he acts from malice or other base motives, he is one of the worst.

These powers have been granted to our law-enforcement agencies because it seems necessary that such a power to prosecute be lodged somewhere.  This authority has been granted by people who really wanted the right thing done—wanted crime eliminated—but also wanted the best in our American traditions preserved.

Because of this immense power to strike at citizens, not with mere individual strength, but with all the force of government itself, the post of Federal District Attorney from the very beginning has been safeguard by presidential appointment, requiring confirmation of the Senate of the United States.  You are thus required to win an expression of confidence in your character by both the legislative and the executive branches of the government before assuming the responsibilities of a federal prosecutor.

Your responsibility in your several districts for law enforcement and for its methods cannot be wholly surrendered to Washington, and ought not to be assumed by a centralized Department of Justice.  It is an unusual and rare instance in which the local District Attorney should be superseded in the handling of litigation, except where he requests help of Washington.  It is also clear that with his knowledge of local sentiment and opinion, his contact with and intimate knowledge of the views of the court, and his acquaintance with the feelings of the group from which jurors are drawn, it is an unusual case in which his judgment should be overruled.

Experience, however, has demonstrated that some measure of centralized control is necessary.  In the absence of it different district attorneys were striving for different interpretations or applications of an Act, or were pursuing different conceptions of policy.  Also, to put it mildly, there were differences in the degree of diligence and zeal in different districts.  To promote uniformity of policy and action, to establish some standards of performance, and to make available specialized help, some degree of centralized administration was found necessary.

Our problem, of course, is to balance these opposing considerations.  I desire to avoid any lessening of the prestige and influence of the district attorneys in their districts.  At the same time we must proceed in all districts with that uniformity of policy which is necessary to the prestige of federal law.

Nothing better can come out of this meeting of law enforcement officers than a rededication to the spirit of fair play and decency that should animate the federal prosecutor.  Your positions are of such independence and importance that while you are being diligent, strict, and vigorous in law enforcement you can also afford to be just.  Although the government technically loses its case, it has really won if justice has been done.  The lawyer in public office is justified in seeking to leave behind him a good record.  But he must remember that his most alert and severe, but just, judges will be the members of his own profession, and that lawyers rest their good opinion of each other not merely on results accomplished but on the quality of the performance.  Reputation has been called “the shadow cast by one’s daily life.”  Any prosecutor who risks his day-to-day professional name for fair dealing to build up statistics of success has a perverted sense of practical values, as well as defects of character.  Whether one seeks promotion to a judgeship, as many prosecutors rightly do, or whether he returns to private practice, he can have no better asset than to have his profession recognize that his attitude toward those who feel his power has been dispassionate, reasonable and just.

The federal prosecutor has now been prohibited from engaging in political activities.  I am convinced that a good-faith acceptance of the spirit and letter of that doctrine will relieve many district attorneys from the embarrassment of what have heretofore been regarded as legitimate expectations of political service.  There can also be no doubt that to be closely identified with the intrigue, the money raising, and the machinery of a particular party or faction may present a prosecuting officer with embarrassing alignments and associations.  I think the Hatch Act should be utilized by federal prosecutors as a protection against demands on their time and their prestige to participate in the operation of the machinery of practical politics.

There is a most important reason why the prosecutor should have, as nearly as possible, a detached and impartial view of all groups in his community.  Law enforcement is not automatic.  It isn’t blind.  One of the greatest difficulties of the position of prosecutor is that he must pick his cases, because no prosecutor can even investigate all of the cases in which he receives complaints.  If the Department of Justice were to make even a pretense of reaching every probable violation of federal law, ten times its present staff would be inadequate.  We know that no local police force can strictly enforce the traffic laws, or it would arrest half the driving population on any given morning.  What every prosecutor is practically required to do it to select the cases for prosecution and to select those in which the offense is the most flagrant, the public harm the greatest, and the proof the most certain.

If the prosecutor is obliged to choose his cases, it follows that he can choose his defendants.  Therein is the most dangerous power of the prosecutor:  that he will pick people that he thinks he should get, rather than pick cases that need to be prosecuted.  With the law books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone.  In such a case, it is not a question of discovering the commission of a crime and then looking for the man who has committed it, it is a question of picking the man and then searching the law books, or putting investigators to work, to pin some offense on him.  It is in this realm—in which the prosecutor picks some person whom he dislikes or desires to embarrass, or selects some group of unpopular persons and then looks for an offense, that the greatest danger of abuse of prosecuting power lies.  It is here that law enforcement becomes personal, and the real crime becomes that of being unpopular with the predominant or governing group, being attached to the wrong political views, or being personally obnoxious to or in the way of the prosecutor himself.

In times of fear or hysteria political, racial, religious, social, and economic groups, often from the best of motives, cry for the scalps of individuals or groups because they do not like their views.  Particularly do we need to be dispassionate and courageous in those cases which deal with so-called “subversive activities.”  They are dangerous to civil liberty because the prosecutor has no definite standards to determine what constitutes a “subversive activity,” such as we have for murder or larceny.  Activities which seem benevolent and helpful to wage earners, persons on relief, or those who are disadvantaged in the struggle for existence may be regarded as “subversive” by those whose property interests might be burdened or affected thereby.  Those who are in office are apt to regard as “subversive” the activities of any of those who would bring about a change of administration.  Some of our soundest constitutional doctrines were once punished as subversive.  We must not forget that it was not so long ago that both the term “Republican” and the term “Democrat” were epithets with sinister meaning to denote persons of radical tendencies that were “subversive” of the order of things then dominant.

In the enforcement of laws which protect our national integrity and existence, we should prosecute any and every act of violation, but only overt acts, not the expression of opinion, or activities such as the holding of meetings, petitioning of Congress, or dissemination of news or opinions.  Only by extreme care can we protect the spirit as well as the letter of our civil liberties, and to do so is a responsibility of the federal prosecutor.

Another delicate task is to distinguish between the federal and the local in law-enforcement activities.  We must bear in mind that we are concerned only with the prosecution of acts which the Congress has made federal offenses.  Those acts we should prosecute regardless of local sentiment, regardless of whether it exposes lax local enforcement, regardless of whether it makes or breaks local politicians.

But outside of federal law each locality has the right under our system of government to fix its own standards of law enforcement and of morals.  And the moral climate of the United States is as varied as its physical climate.  For example, some states legalize and permit gambling, some states prohibit it legislatively and protect it administratively, and some try to prohibit it entirely.  The same variation of attitudes towards other law-enforcement problems exists.  The federal government could not enforce one kind of law in one place and another kind elsewhere.  It could hardly adopt strict standards for loose states or loose standards for strict states without doing violence to local sentiment.  In spite of the temptation to divert our power to local conditions where they have become offensive to our sense of decency, the only long-term policy that will save federal justice from being discredited by entanglements with local politics is that it confine itself to strict and impartial enforcement of federal law, letting the chips fall in the community where they may.  Just as there should be no permitting of local considerations to stop federal enforcement, so there should be no striving to enlarge our power over local affairs and no use of federal prosecutions to exert an indirect influence that would be unlawful if exerted directly.

The qualities of a good prosecutor are as elusive and as impossible to define as those which mark a gentleman.  And those who need to be told would not understand it anyway.  A sensitiveness to fair play and sportsmanship is perhaps the best protection against the abuse of power, and the citizen’s safety lies in the prosecutor who tempers zeal with human kindness, who seeks truth and not victims, who serves the law and not factional purposes, and who approaches his task with humility.

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This post was emailed to the Jackson List, a private but entirely non-selective email list that reaches many thousands of subscribers around the world. I write to it periodically about Justice Robert H. Jackson, the Supreme Court, Nuremberg and related topics. The Jackson List archive site is http://thejacksonlist.com/.  To subscribe, email me at barrettj@stjohns.edu. Thank you for your interest, and for spreading the word.

On AG Barr’s Letter to Congressional Leaders Summarizing Mueller’s Report

Here, for non-visitors to Twitter, is a thread that I posted there yesterday afternoon—

1/ It makes sense that underling Mueller would make the prosecution declination decision for DOJ when he found insufficient evidence of crime (no Trump/other U.S. person conspiracy with Russia to affect the ’16 election). Declinations are what underling prosecutors do.

2/ It also makes sense that on the other question–Did the President endeavor to obstruct justice?–where the evidence & legal Qs were closer & complicated, Mueller sent it all upstairs to his bosses Barr & Rosenstein for them to decide.

3/ Responsibility to decide something as momentous as whether the President is a crook properly resides at the top level of federal prosecution responsibility for that matter.

4/ When an AG decides that the President is not a crook, then that AG (& his advisers in OLC, etc.) does not need to revisit the question of whether a crooked president constitutionally may be indicted.

5/ Yes, an AG works for the President. And when the AG decides not to prosecute the President, their relationship is something that can appear to be a conflict of interest.

6/ The U.S. Congress chose to accept this risk in 1999, when it permitted the Independent Counsel law to expire. That statute took such decisions away from AGs, reposing them instead in court-appointed prosecutors.

7/ In taking that risk, Congress was avoiding the risk that a court-appointed IC would turn out to be in fact a less-sound decision-maker than would an AG, whatever his or her possible conflicts of interest.

8/ These are political process, policy decisions about how best, under the Constitution, to structure federal prosecution responsibility.

9/ On this policy decision as on every other one, no answer will be perfect or satisfying to all for all time. We will keep learning, arguing, and tinkering. I hope that over time, we make progress objectively and satisfy more of us that we are doing so.

Jackson List: On British Opinion on Nuremberg (1949)

In late October 1946, Justice Robert H. Jackson, just back to the United States from his year-plus away serving as U.S. Chief of Counsel prosecuting Nazi war criminals before the International Military Tribunal (IMT) at Nuremberg, happened to meet, briefly, lawyer Eugene C. Gerhart, age thirty-four.  Gerhart was a former pre-World War II secretary to a judge of the Permanent Court of International Justice in Switzerland, a graduate of Harvard Law School, a veteran of U.S. Navy service during the war, a practicing lawyer in Jackson’s upstate New York homeland, and a man with interests in history and writing.  Not surprisingly, Jackson was impressed by Gerhart.

A year later, Eugene Gerhart wrote to Justice Jackson and proposed to write his biography.  Jackson was skeptical but agreed to cooperate, within the limits that his time and his respect for U.S. Supreme Court confidentiality imposed.

As Gerhart pursued his research, he posed various questions to Jackson.  In 1949, for instance, Gerhart asked Jackson about mid-1945 United Kingdom attitudes, before the London Conference concluded in August 1945 with the international agreement to create the IMT, about whether the Allies should prosecute their leading Nazi prisoners as criminals.  Gerhart also asked about U.K. attitudes since Nuremberg about the legal theories on which the trial was conducted.  He apparently had recently read British lawyer John Hartman Morgan’s 1948 book The Great Assize: An Examination of the Law of the Nuremberg Trials, and he (Gerhart) asked Jackson if he also had read it.

In response, Justice Jackson dictated, edited, and sent the following letter to Eugene Gerhart on March 17, 1949—seventy years ago today.  The letter was Jackson’s description, quite straightforward, candid, and on the record, of his thinking, which was at odds with U.K. policy at least initially in 1945, and which perhaps in 1949 was still at odds with some British views, about the legal underpinnings and the legitimacy of the Nuremberg trial.

Mr. Eugene C. Gerhart,

Security Mutual Building,

Binghamton, New York.

My dear Mr. Gerhart:

               I have not read [R.H.] Morgan’s The Great Assize.  Viscount [Frederic Herbert] Maugham, the former Lord Chancellor and brother of Somerset Maugham, was at Nurnberg briefly as a guest.

               Of course, the fundamental premises on which we prosecuted the Germans for offenses against international society are at war with the concept of sovereignty as an absolute right of a nation to do as it pleases.  This argument was made by German [defense] counsel.  However, as [Columbia University law] Professor [Philip] Jessup points out in his work, A Modern Law of Nations, page 2, no real international law can exist if this rule of unlimited sovereignty is to prevail.  This is simply one of those basic breaks between the modern and what I consider the medieval conception of the place of law among nations.  I am not disposed to deny that it [Nuremberg] was a substantial break with the past and may have been applied somewhat retroactively.

               As to the crimes against humanity, there is truth on both sides.  As I pointed out in the Opening Speech [I delivered to the IMT on November 21, 1945,], it is not every cruelty which a government inflicts upon its own people that becomes of international concern.  But you will notice in the definition of “crimes against humanity” that it is limited to those “in execution of or in connection with any crime within the jurisdiction of the Tribunal.”  That is to say, when extermination, enslavement and deportation are a part of the program of aggressive warfare, they do become matters of international concern.  I think our proof amply demonstrated that the campaign against the Jews was intended to remove what they [the Nazis] regarded as an obstruction to instituting war and that the extermination was a part of the objective of the war.

               It may be true that there is no generally accepted definition of “aggressive war” and that all victors tend to justify themselves.  You will find in the minutes of the [summer 1945] London Conference that I made repeated efforts to get a definition and I never had any help from the British in doing it.

               It does not seem to me that aggressive warfare is any more vague, even if not further defined, than many of the concepts with which we work in the law.  And we must not forget that the Hitler war was aggressive by any test that anybody has ever suggested, and that he boasted of it as such.  I have dealt with these matters in a speech, copy of which is enclosed.

               This must be remembered about all British comment on the trial.  The British Government under Lord Chancellor [John] Simon was opposed to trials and wanted the war criminals disposed of by executive determination.  This fact appears in the London Conference records among the very early documents.  A large segment of British opinion remains committed to that theory or is sufficiently biased on the subject to be critical of the trials.  We rather forced trials upon them, as you will see from the London minutes, and there has been some disposition among the British not perhaps to resent that fact but at least to try to make up for it by criticism of what was done.

               I trust this gives you, in general, what you want.

               With best wishes, I am

                                                               Sincerely yours,

                                                               /s/ Robert Jackson

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This post was emailed to the Jackson List, a private but entirely non-selective email list that reaches many thousands of subscribers around the world. I write to it periodically about Justice Robert H. Jackson, the Supreme Court, Nuremberg and related topics. The Jackson List archive site is http://thejacksonlist.com/.  To subscribe, email me at barrettj@stjohns.edu. Thank you for your interest, and for spreading the word.

Jackson List: 127th Birthday

Today marks the 127th anniversary of Robert Houghwout Jackson’s 1892 birth, in his family’s farmhouse in Spring Creek Township, Warren County, Pennsylvania.

For your Jackson Birthday reading, here are some previous Jackson Birthday-related posts:

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This post was emailed to the Jackson List, a private but entirely non-selective email list that reaches many thousands of subscribers around the world. I write to it periodically about Justice Robert H. Jackson, the Supreme Court, Nuremberg and related topics. The Jackson List archive site is http://thejacksonlist.com/.  To subscribe, email me at barrettj@stjohns.edu. Thank you for your interest, and for spreading the word.

Jackson List: Spandau Prisoner Rudolf Hess

Rudolf Hess was one of Adolf Hitler’s earliest friends and devoted supporters.  Imprisoned with Hitler in the 1920s, Hess assisted his writing of Mein Kampf.  Hess was at Hitler’s side as the Nazi Party gained support and then political power.  After Hitler became Chancellor of Germany in 1933, Hess became Deputy Führer.  He assisted Hitler through the rest of the decade, as Germany built up its military strength and then started World War II, coercing some countries to capitulate and attacking others.

In May 1941, Hess became a British prisoner.  He was captured in Scotland, where he had flown from Germany on an odd, apparently solo, mission.  It seems that Hess sought to negotiate a United Kingdom-Germany peace agreement.

In 1945, following Nazi Germany’s military defeat and unconditional surrender, the Allies created the International Military Tribunal (IMT), charged Hess as a war criminal, and transported him to Nuremberg for trial (where Justice Jackson of course served as chief U.S. prosecutor).  Hess was tried there and, in Fall 1946, convicted of conspiracy and crimes against peace and sentenced to life in prison.

Hess was transported to Spandau Prison in Berlin and served his sentence there.  As the other prisoners completed their terms and were released, Hess became the only person still held in Spandau.  He died there, by suicide, in 1987, age 93.

Over the years, a story developed that the real Hess had been somehow, at some point in 1941 or later, freed, switched for a “double” who became the prisoner of Spandau.

This story, which involved neo-Nazi Hess supporters and was meaningful to them, never seemed to have much to it.

In any case, it now seems to have been disproven.  Austrian scientists, testing a preserved blood sample from the Spandau prisoner, have matched it to a DNA sample from a distant male relative of Hess.

Here are some links with further details—

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This post was emailed to the Jackson List, a private but entirely non-selective email list that reaches many thousands of subscribers around the world. I write to it periodically about Justice Robert H. Jackson, the Supreme Court, Nuremberg and related topics. The Jackson List archive site is http://thejacksonlist.com/.  To subscribe, email me at barrettj@stjohns.edu. Thank you for your interest, and for spreading the word.