Author Archives: jqb

Jackson List: Remembering, Studying, and Living Up to Barnette

On June 14, 2018, people in the United States—many, and indeed most, people, I hope—will mark and celebrate the 75th anniversary of the Supreme Court’s decision in West Virginia State Board of Education v. Barnette.  In that landmark decision, the Court struck down as unconstitutional the State’s requirement that all public school teachers and students 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 made the children unlawfully absent, subjecting them to delinquency proceedings and their parents to criminal prosecution.

The Barnette decision was announced in Justice Robert H. Jackson’s opinion for Court.  He explained that the flag salute requirement violated the children’s constitutional rights, which exist to strengthen “individual freedom of mind in preference to officially disciplined uniformity…”

Although all of Justice Jackson’s Barnette opinion bears rereading, some particularly wise words to consider are his closing 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.

In the views of many, Barnette is a high point in U.S. Supreme Court history and constitutional law and one of Justice Jackson’s very finest judicial opinions.  His words in Barnette continue to ring, loudly and true, to people who think them through.

One example came from the Supreme Court itself in June 2013, Barnette’s 70th anniversary year and month.  In Agency for International Development v. Alliance for Open Society International, Inc., the Court struck down as unconstitutional the part of an international program to combat HIV/AIDS that required grant recipients to “pledge allegiance to the Government’s policy of eradicating prostitution”.

With regard to that government effort to compel a pledge, Chief Justice Roberts wrote for the Supreme Court that “we cannot improve upon what Justice Jackson wrote for the Court 70 years ago:  ‘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.’”

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Some links—

  • West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943)—click here;
  • the published version of a 2006 roundtable discussion featuring the case-winning litigants, sisters Gathie and Marie Barnett (whose surname got misspelled at some point in the litigation) and related commentary—click here and then download;
  • a Jackson List post from 2013, “Barnette at 70”—click here;
  • another 2013 Jackson List post, “Arguing Barnette, et al.”—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 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: Video of Jackson Center conference on Immigration, June 23, 2017

On June 23, 2017, the Robert H. Jackson Center in Jamestown, New York, hosted a conference, “How ‘Far Gone’ Are We Now?:  Immigration, Security & American Values, from Justice Jackson’s Time to Our Own.”

The conference title asked a timely question.  It incorporates a phrase from this concluding passage of Justice Jackson’s dissenting opinion in Shaughnessy, District Director of Immigration & Naturalization v. United States ex rel. Ignatz Mezei, a 1953 U.S. Supreme Court decision upholding as constitutional the broad statutory powers of the government to deport a non-citizen:

“Congress has ample power to determine whom we will admit to our shores and by what means it will effectuate its exclusion policy. The only limitation is that it may not do so by authorizing United States officers to take without due process of law the life, the liberty or the property of an alien who has come within our jurisdiction; and that means he must meet a fair hearing with fair notice of the charges.  It is inconceivable to me that this measure of simple justice and fair dealing would menace the security of this country. No one can make me believe that we are that far gone.”

The conference video now is posted on YouTube, in the following segments–

Three morning session lectures:

John Q. Barrett delivering the inaugural Alan Y. Cole Memorial Lecture, “Robert H. Jackson on Immigrants, Citizens, Power & Liberty”

Lucas Guttentag, Professor of the Practice of Law, Stanford Law School, and Distinguished Senior Fellow & Lecturer, Yale Law School, and former Senior Counselor to the Secretary, U.S. Department of Homeland Security, and founder and former director ACLU Immigrants’ Rights Project, lecturing on “Sweeping Power & Shallow Rights: A Historical Perspective on Immigration Regulation and Constitutional Protections”

Rick Su, Professor of Law, University at Buffalo School of Law, lecturing on “Sanctuary or Force Multiplier?: Local Involvement in Federal Immigration Enforcement”

The lunchtime Keynote lecture:

Theodore M. Shaw, Julius L. Chambers Distinguished Professor of Law & Director of the Center for Civil Rights, University of North Carolina School of Law, and former Director-Counsel & President of the NAACP Legal Defense and Educational Fund, Inc., lecturing on “Uncharted Territory: The Existential Threat to the American Republic”

Two afternoon session lectures:

Joyce White Vance, Distinguished Visiting Professor of Law, University of Alabama School of Law, and former United States Attorney, Northern District of Alabama (2009-2017), delivering a lecture, “The Role of the Prosecutor in Protecting Civil Rights & Keeping Communities Safe”

Margo Schlanger, Henry M. Butzel Professor of Law, University of Michigan, and former U.S. Department of Homeland Security Officer for Civil Rights and Civil Liberties, lecturing on “Civil Rights at the Border: National Security, Border Screening, & the Muslim Ban”

In addition, the entire morning session (welcoming remarks from Susan Moran Murphy, Jackson Center president & CEO; lectures by John Barrett, Lucas Guttentag, and Rick Su; audience-speaker Q&A; and me adjourning the session) is here:

And the entire afternoon session (introductions; lectures by Joyce White Vance and Margo Schlanger; audience-speaker Q&A; and concluding remarks) is here:

Please view these important, expert, challenging discussions on topics that matter to each of us, and please share this information and these links widely.

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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.

Iran-Contra Criminal Charges Pertaining to Iran and the Contras

On August 8th, former White House Counsel and former U.S. Ambassador C. Boyden Gray wrote, in a Wall Street Journal op-ed piece, that in the Iran-Contra criminal investigation, “no one was convicted or even indicted for any action pertaining to Iran or the Contras.”

This statement is incorrect, and on August 10th I sent the WSJ a letter spelling that out.

Because the Journal hasn’t published my letter, and because I’m pro-facts, I post it here:

Editor, The Wall Street Journal

1211 Avenue of the Americas

New York, NY  10036

To the Editor:

Former White House Counsel C. Boyden Gray has misremembered the facts of Iran-Contra, on which we each worked, sometimes as counterparts.

Mr. Gray wrote (“Mueller Can Avoid an Iran-Contra Repeat,” Aug. 8) that “no one was convicted or even indicted for any action pertaining to Iran or the Contras.”

In fact, a federal grand jury charged former National Security Adviser John Poindexter, his aide Lt. Col. Oliver North, and two others with multiple felonies pertaining to both Iran and the Contras.  Count One in that indictment charged that they had engaged in a conspiracy to defraud the United States in three respects: (1) by deceitfully supporting the Contra war in Nicaragua in defiance of congressional controls; (2) by using U.S. arms sales to Iran to raise funds for Poindexter and North, rather than the U.S. Government, to spend; and (3) by pursuing unauthorized operations in Iran that endangered U.S. efforts to rescue Americans held hostage in Lebanon.  Count Two charged that the defendants had stolen U.S. government property (Iran arms sales proceeds).  Count Three charged that they had committed wire fraud in their transmissions of those proceeds.

Although the trial judge upheld the legal validity of the first two charges (dismissing the third as duplicative), the prosecutor, Independent Counsel Lawrence Walsh, for whom I worked, ultimately agreed to dismiss them after Presidents Reagan and George H.W. Bush, whom Mr. Gray served as Counsel, would not declassify information that the judge had ruled the defendants were entitled to use in their defense.

Sincerely,

John Q. Barrett

Professor of Law, St. John’s University

Associate Counsel, Office of Independent Counsel Lawrence E. Walsh, 1988-1993

 

Lecture, “Justice Jackson and His Brethren”

 

Here’s video of the lecture that I gave at Chautauqua Institution on July 28, 2017.

This was the final lecture in Chautauqua’s week of lectures on the general theme, “The Supreme Court: At a Tipping Point?” Other lecturers during the week were Linda Greenhouse, Annette Gordon-Reed, Peter Onuf, Jeffrey Rosen, Akhil Reed Amar, Rev. Eugene Robinson, and Theodore B. Olson.

For the Chautauquan Daily’s lecture preview article, click here.

And here’s video of the my Q&A with audience members following the lecture:

 

 

Jackson List: Judge Jon O. Newman’s Jackson Lecture, Chautauqua Institution, August 16th

I am very pleased to report that the Honorable Jon O. Newman, United States Circuit Judge, U.S. Court of Appeals for the Second Circuit, will deliver Chautauqua Institution’s 13th annual Robert H. Jackson Lecture on the Supreme Court of the United States, on Wednesday, August 16, 2017, at 4:00 p.m. in Chautauqua’s Hall of Philosophy.

Judge Newman is a giant of the U.S. judiciary.  In 1971, President Nixon appointed Jon Newman to serve as a U.S. District Judge in the District of Connecticut.  In 1979, President Carter elevated Judge Newman to the U.S. Court of Appeals, where he has served since then, including as Chief Judge from 1993-1997.  At the U.S. Supreme Court earlier this year, Judge Newman received for lifetime judicial achievement the very prestigious Devitt Award.

Judge Newman also had many accomplishments before his judicial career, including:  graduate of Princeton University and Yale Law School; a veteran of the U.S. Army Reserve; law clerk to Judge George Washington of the U.S. Court of Appeals for the D.C. Circuit; law clerk to Chief Justice Earl Warren at the Supreme Court; aide to Abraham Ribicoff as Governor of Connecticut, Secretary of Health, Education & Welfare, and U.S. Senator; attorney in private practice in Hartford; and U.S. Attorney for the District of Connecticut.

Judge Newman’s lecture title will be, “The Supreme Court—Then and Now.”

Chautauqua Institution is 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.)

The Jackson Lecture at Chautauqua Institution is a leading annual consideration of the Supreme Court of the United States, on which Justice Robert H. Jackson served from 1941-1954, in the weeks following the completion of the Supreme Court’s annual Term.  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, Bancroft PLLC 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;
  • 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 (click here for video);
  • 2015:  Laurence H. Tribe, Harvard University professor (click here for video); and
  • 2016:  Tracey L. Meares, Yale University professor (click here for video).

For further information on Judge Newman’s upcoming lecture, click here.

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Judge Newman’s Jackson Lecture will culminate, at Chautauqua Institution this summer, extensive, expert consideration of the U.S. Supreme Court.

During Chautauqua’s Week Five (July 24-28), the Amphitheater lecture theme will be “The Supreme Court: At a Tipping Point?”  The 10:45 a.m. lecturers will be:

  • July 24:  Linda Greenhouse;
  • July 25:  Annette Gordon-Reed;
  • July 26:  Jeffrey Rosen;
  • July 27:  Akhil Reed Amar; and
  • July 28:  Theodore B. Olson.

The afternoon programs that week will feature the following lecturers, focusing on judicial lives and biography:

  • July 24:  Linda Greenhouse, on Chief Justice Warren E. Burger;
  • July 25:  Annette Gordon-Reed & Peter Onuf, on Chief Justice John Marshall;
  • July 26:  Jeffrey Rosen, on Justice Louis D. Brandeis; and
  • July 28:  John Q. Barrett, on Justice Robert H. Jackson & His Brethren.

For further information on all of this programming, to buy tickets, etc., please visit Chautauqua Institution’s website (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.

Jackson List: Supreme Court “Opinion Dumping,” 1950 & Today

On Monday, June 5, 1950, the last day of its 1949-50 term, the Supreme Court of the United States announced its judgments and released written opinions in seventeen cases.  The Court then began its summer recess.  The public, beginning with the daily press, struggled to read and absorb such a quantity of Court decisions.

A week later, the Washington Post editorialized against what it called the Supreme Court’s end-of-term practice of “Judicial Dumping”:

Our courts have been notoriously backward in their public relations, and in none of them is this failing more conspicuous than in the Supreme Court of the United States.  Last week, for example, that high tribunal dumped 18 [sic] opinions into the lap of bewildered newspaper and radio reporters.  Some of these opinions were of great importance….  It was utterly impossible for the newsmen to read and digest so many opinions in so few hours, and if they could have done so most newspapers would have had great difficulty in giving adequate coverage to so large an output.

Such a heavy accumulation of cases usually occurs only at the end of the term.  But that is serious enough, for the justices have a habit of putting off until the last opinion day some of the most troublesome and important cases.  The result is that some momentous decisions go almost unnoticed by the public.  Perhaps it is of no concern to the court whether its output is properly communicated to the people.  Yet we do not see how any body in a democratic land could take such an attitude, and this seems to apply especially to the Supreme Court, which, lacking both purse and sword, is dependent upon the acceptance of its rulings by public opinion.

Even at the cost of some inconvenience to itself, we should think the court would abandon its dumping practice and regulate the flow of its opinions to the public more evenly.  It is difficult to see how any harm could be done by such a policy, and it would certainly facilitate understanding of the court and its opinions on the part of the public.

When the next Supreme Court term began in October 1950, the Post continued to make this argument.  Chalmers M. Roberts, a legendary Post reporter, privately surveyed his Supreme Court press corps colleagues and then reported their unanimous view that the Court should assist press and public understanding by “spreading the opinions over the entire week instead of dumping them all on Monday.”

The Supreme Court has, over time, to some degree, listened.  It now hands down decisions on multiple days of some weeks, especially toward the end of its term.  In the current month, for example, as this Court term headed to its end, the Justices announced decisions on six separate days, including three days last week.

But some Court work, like all human work, gets done against a final deadline, even if it is one that is self-imposed.  Each Court term will have a final “opinion day.”  And sometimes, such as today, it will be a Monday.

The Supreme Court today completed its scheduled work for the 2016-17 term.  It announced judgments and released opinions in three cases that had been argued in April.  It also vacated the lower court judgment in another case and sent it back for reconsideration in light of a major Court decision (Ziglar v. Abbasi—see below) that was announced last week.  The Court put two other cases, in which it had heard oral arguments last winter as an eight-justice Court, before Justice Gorsuch’s appointment, over for reargument next Fall.  And in two cases challenging President Trump’s “travel ban” executive order, the Court granted in part and denied in part the President’s request to stay lower court orders enjoining the executive order, and it ordered the parties to file briefs on a schedule that will permit the Court to hear oral arguments in the cases next October.

That is—today’s decisions are—a lot to digest.  As the justices prepare to relax, work on cases ahead, travel, and teach during their summer recess, the rest of us will work to catch up.  (For the decisions of the just-completed term, click here, and for orders, including some accompanied by opinions, click here.)

The Supreme Court’s latest decisions include many of legal significance and general public interest.  For students of Justice Robert H. Jackson’s career, one recent decision to note is Ziglar v. Abbasi (click here), where the Court, by a vote of 4-2, dismissed claims against federal officials who were accused of responsibility for the severe mistreatment of Middle Eastern men who were in the U.S. illegally at the time of the 9/11 attacks and were detained for immigration violations.  In his Ziglar v. Abbasi dissenting opinion, Justice Stephen Breyer, joined by Justice Ruth Bader Ginsburg, quoted two of Justice Jackson’s most striking and enduring metaphors, and cautions:  that the Constitution should not be misinterpreted as a “suicide pact” (from Jackson’s dissenting opinion in Terminiello v. United States (1949)), and that mistakenly broad views of executive power under the Constitution can lie about “like a loaded weapon”…. (from Jackson’s dissent in Korematsu v. United States (1944)).

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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:  Commencement, and Cowslip, Season

For the Jackson List:

Robert H. Jackson’s deep ties to Jamestown, New York, the city he came to call his adult hometown, began in 1909.  That June, Jackson, age seventeen, graduated as valedictorian from the high school in Frewsburg, New York.  He lived—he had grown up—in that small, rural hamlet with his parents and two younger sisters.  Frewsburg is located six miles southeast of Jamestown, and it drew Jackson to its opportunities.

In Fall 1909, Robert Jackson began to commute from Frewsburg to Jamestown by streetcar.  He enrolled as a post-graduate student at Jamestown High School—it was, for him, a second senior year of high school.  At JHS, Jackson found some very strong and special teachers (who of course deserve credit for finding him).  They took deep interests in cultivating his talents and, in effect, devising tutorial programs for his special studies in literature, history, and economics.

One of Jackson’s two crucial, life-launching teachers at Jamestown High School was Miss Mary R. Willard, age 53, who taught English.  She lived near the school with her sister Miss Vesta Willard, age 47, who was a teacher at the elementary school.

Robert Jackson soon became the Willard sisters’ shared protégé.  He became, after school and often long into the evening, a member of their literary reading groups, their music listening groups, and their discussions with each other and many friends in the community.  He became a colleague in their environmental activism, including their fundraising to acquire for Jamestown, as a public preserve, a wild and beautiful “100 Acre Lot” on the edge of town.  In time, Robert became a regular dinner guest and sometimes an overnight guest in the Willard home, which the sisters nicknamed “Bohemia.”  To Jackson, then and for the rest of their lives, the Willard sisters were family—in effect, they were his second and third mothers.

Following Jackson’s June 1910 graduation from Jamestown High School, he did not go to college.  Instead, he stayed in Jamestown and became an apprentice to two very talented lawyers, Frank H. Mott and Benjamin S. Dean, who also were politically active, and literary, and friends of the Willards and other Jamestown leaders.

In Fall 1911, following Jackson’s year as a law office apprentice, these mentors persuaded him to go to a law school for a year of classroom learning and book study.  He chose Albany Law School because it was located in the New York State capital, because it was a leading and venerable independent law school, because it awarded law degrees after only two years of study, and because it would give him credit for his apprentice year—it admitted Jackson as, in effect, a transfer student into the “senior” class of 1912.

At Albany Law School during 1911-1912, Jackson worked hard and excelled.  By springtime, he wrote to the Willards, on the opposite side of New York State, that he soon would be graduating, and then returning to Jamestown for another year of apprenticeship, until he turned twenty-one and would become eligible to take the New York bar examination.

Vesta Willard responded by sending Jackson a notecard printed with a poem:

Congratulations

The world and I to you extend

Heartfelt Congratulations

May fortune’s favors have no end

Exceeding all your expectations

 

On the other side of the card, Vesta penned this note:

Tuesday Morning, May 7 [1912]

Dearest Bobbie – So you’re going to GRADUATE!  (See other side)

Probably you’ll see Bohemia in about a

month and then we’ll have a “Halleluyah Windup”

which will be merely the beginning of things.

Harry [a friend] and I “did” the hundred acre lot last

Saturday afternoon, and brought home all the

flowers we could carry, and incidentally, a

basket of cowslip greens.  These we immediately

“looked over” and cooked for supper.  Marywog [Mary Willard] was

too tired to go with us but she enjoyed the greens.

[Another friend] made us a visit Sunday night, but

he came too late (8:45) to catch Marywog.  She had

“turned in.”  So it was “up to me” until 11 P.M.

I rose to the occasion and listened attentively and

with a most misleading show of interest.

I’m “holding down” the [school] Study Hall just now but they [the students] are

“under control” and I wish this card was longer—I feel talkative.

The fifth chicken on the Easter card [apparently a previous mailing]

is merely the shadow of the Good Times coming.

Do try to be good —  Yours – V.W.

So what are cowslip greens?  As Vesta Willard knew, they were one of Robert Jackson’s very favorite foods.  Cowslip, or Primula Veris (“truly spring”), is an herb.  It is used for healing and cooking.  It usually grows, as its Latin name suggests, in the springtime, blooming from April to June.  Cowslip is native to Europe and Asia but in the United States it grows wild in fields and meadows.  Cowslip flower petals are used in pudding, creams, tea, jam, and wine.  The Willards seem to have liked cooked—I assume boiled—cowslip leaves as a supper vegetable.  Fresh, young cowslip leaves, which have a sweet but bland taste, also can be eaten as a green, or in salads, or—Jackson’s preference—in sandwiches.

In this season of commencements, I hope that you and yours have chances to celebrate the academic accomplishments of people you’ve raised or taught or otherwise love, and to find and eat some favorite foods, and then to keep on celebrating.  Indeed, if it’s your style, have a great “Halleluyah Windup”!

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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.

A Professional Responsibility Exam Question?

Don (“D”) serves in the District of Columbia as Counsel to the President of the United States.  On January 26, Sally (“S”), the senior federal law enforcement official, contacted D and requested a meeting.  He agreed and they met privately.

In the meeting, S explained to D that:

  • a senior adviser to the President has misled the Vice President of the U.S., and perhaps other government officials as well, about the substance of the adviser’s private communications with a foreign government official;
  • the foreign government is aware of this misleading through its public and private sources of information; and
  • this situation makes the senior adviser extremely vulnerable to influence by the foreign government.

In follow up meetings, S showed D the substantive information underlying her concerns.  D became convinced that this was a serious situation that the President needed to address, probably by dismissing the senior adviser.

During the next few weeks, D discussed this situation a number of times with the President and other officials.  (We do not know what the President responded, including whether he directed D to take any subsequent action.)

On February 17, D arranged for a local reporter to learn that, back in January, S had warned the White House through D that the senior adviser had misled the Vice President and perhaps others, and that this made him subject to influence by the foreign government.  The next day, the reporter’s newspaper published this information.  Public outcry ensued, leading the President to dismiss the senior adviser.

Assume that the foregoing comes to light, and that appropriate authorities are now working to determine if D should be subjected to professional discipline for his conduct.

The question:  Please discuss whether D should be disciplined under D.C. Rule of Professional Conduct 1.6.  Please include assessments based on various assumptions, which you should state explicitly, about what the President decided, ordered, or authorized at various times, including with regard to the D-arranged transmission of information to the reporter.

Extra credit:  If times permits, please also discuss whether, on any set of assumed facts, D and/or whoever transmitted the information to the reporter deserves recognition and praise as a patriot.

 

On Judge Curtin, Judge Sharp, and Judicial Discretion in Criminal Sentencing

Judge John T. Curtin, who died last week in Buffalo, New York, at age 95, was a giant of the Western District of New York bench—he served with great distinction for almost fifty years.  Judge Curtin also was a gentleman.  I knew him a little bit and had the privilege of learning from him some wonderful, direct memories of western New York people, politics, cases, and law practice in the 1940s and 1950s.

I was pleased to see yesterday’s New York Times obituary for Judge Curtin (click here).  It recounts some of the significant cases that he handled, and the wisdom and values he showed as he exercised his judicial power.

The Times obit concludes with this story about a non-incarceration sentence that Judge Curtin imposed in the 1970s on Vietnam War protesters who had burglarized a federal building and destroyed military draft records:

Judge Curtin … presided over a Vietnam War-era case involving five protesters who had broken into Buffalo’s Old Post Office to destroy Selective Service records in 1971.  At their trial, they refused to stand when Judge Curtin entered the courtroom, and justified their actions as a legitimate response to the war.

A jury found them guilty of conspiracy to destroy draft records and intent to commit third-degree burglary.  But instead of sending them to prison, Judge Curtin gave them suspended one-year sentences and put them on probation.

 “Each of you,” he told them, “is free to speak your mind, associate with your friends, attend meetings, travel and continue your efforts in a peaceful manner.”

One of the protesters, Jeremiah Horrigan, called Judge Curtin last year….

Mr. Horrigan, a recently retired newspaper reporter, asked the judge why he had granted him freedom.

“I just followed procedure,” Mr. Horrigan quoted him as saying in a retrospective article he wrote about the case.  “I took into account your background, the fact that you had no criminal record, your family situation.”

Mr. Horrigan went on to marry and have two children and four grandchildren. “I tried to tell him how much I owed him [in] the only way I knew how,” he wrote of the judge, “by describing the barest outlines of a life of the luckiest man I know, a life he allowed to happen.”

Coincidentally, on the day following Judge Curtin’s death, Judge Kevin H. Sharp, age 54, resigned from the federal bench in Tennessee.  Sharp had been a federal judge for almost six years.  His reasons for resigning include his desire to return to private law practice.

Judge Sharp also was motivated to retire, however, by his frustration with federal mandatory minimum prison sentence laws.  Enacted mostly in recent decades, these laws require federal judges to impose harsh sentences, sometimes up to life sentences.  In Judge Sharp’s personal view, more merciful sentences would have been appropriate and just in some of his cases, but the law did not permit him to exercise such discretion in his sentencing decisions.

In a post-retirement interview (click here), former Judge Sharp put the problem in its human terms:

“The ‘drugs-and-guns cases’ — you say it like that and it sounds like they’re all dangerous [criminals].  Most of them are not.  They’re just kids who lack any opportunities and any supervision, [they] lack education and have ended up doing what appears to be at the time the path of least resistance to make a living.”

A wiser, more decent country would have federal laws that permit judges to exercise discretion not to impose harsh prison sentences on individuals who do not deserve them.

Such laws would encourage more people of the humane type that Kevin Sharp appears to be to become federal judges, and to remain on the bench for longer, even lifetime, terms of public service.

Such laws would give the U.S. more judges of the type that Judge Curtin was, in his time, able to be.

 

Jackson List: Lawful, Political, Deplorable Senatorial Behavior (1954)

This post, edited a little bit and enhanced with footnotes and photographs of John M. Harlan and the Supreme Court in 1955, now is on the Jackson List archive site in PDF file form.