Author Archives: JQB

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.

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.

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.

The Mueller Investigation & Foreign Agents

In light of the New York Times‘s lead story yesterday, reporting that the FBI in mid-May 2017 began to investigate whether President Trump is a Russian agent, look again at Special Counsel Mueller’s December 4, 2018, pre-sentencing Memorandum in the Michael Flynn case.  …

This continues as a thread on Twitter.

 

 

William P. Barr & Robert S. Mueller, Working Together in the Department of Justice, 1989-1993

(Also on Twitter–)

1/ Short thread: William P. #Barr has a history of working closely with Robert #Mueller in @TheJusticeDept. I think that their #DOJ association is a good basis to presume that Barr thinks highly of Mueller as a law enforcement professional & as a person.

2/ In the #Bush41 administration, beginning in 1989, Barr & Mueller worked under AG Dick #Thornburgh. Mueller was Thornburgh’s principal aide on criminal matters. Barr was Assistant AG heading the Office of Legal Counsel (OLC).

3/ In 1990, the Deputy Attorney General (Donald B. Ayer) resigned. President Bush appointed Barr to succeed Ayer as DAG.

4/ In that same time period, Asst. AG Edward S.G. Dennis, head of the Criminal Division, also resigned.

5/ President Bush appointed Mueller to succeed Dennis as AAG heading the Criminal Division.

6/ When AG Thornburgh resigned in 1991 to run for the U.S. Senate, Barr became Acting AG. President Bush soon appointed Barr to succeed Thornburgh as AG.

7/ AG Barr & AAG Mueller served together in DOJ until the Bush administration concluded in January 1993.

Michael Cohen’s Upcoming Federal Sentencing & James McCord’s Role in Watergate

(Also on Twitter, slightly edited–)

1/ On Michael Cohen’s upcoming federal sentencing & James McCord’s role in #Watergate—

2/ #MichaelCohen, President Trump’s former lawyer, pleaded guilty in August to eight federal crimes, two related to Trump’s campaign finances & six related to Cohen’s personal finances.

3/ In pleading guilty to the campaign finance crimes, Cohen implicated President Trump in hush money payments to two women in 2016.  Cohen & Trump worked together during his presidential campaign, Cohen told the Court, to conceal affairs that the women had with Trump.

4/ Cohen also pleaded guilty last week to an additional federal crime: making false statements to the U.S. Senate about Trump’s secret efforts during his presidential campaign to make a real estate deal with the Russian government.

5/ Cohen’s Aug. 2018 guilty plea was negotiated with the U.S. Attorney’s Office for the Southern District of New York.  His Nov. 2018 guilty plea was negotiated with the Office of Special Counsel Robert #Mueller.

6/ Cohen reportedly concluded earlier this year “that his life has been utterly destroyed by his relationship with Mr. Trump and his own actions, and [that] to begin anew he needed to speed up the legal process by quickly confessing his crimes and serving any sentence he receives…”  https://www.nytimes.com/2018/12/03/nyregion/michael-cohen-trump-strategy.html

7/ Cohen thus decided to plead guilty without having a deal with prosecutors requiring him to cooperate in continuing investigations & possible future trials & then to seek credit in sentencing for that cooperation.

8/ Cohen has, however, cooperated actively with federal law enforcement & with state law enforcement, & he has pledged to continue to do so.

9/ Cohen is scheduled to be sentenced on this Friday, Dec. 7, in the SDNY by U.S. District Judge William H. Pauley, III.  Cohen’s attorneys have detailed to the Court his cooperation & asked that he be sentenced to probation.

10/ President Trump has tweeted that Cohen “should … serve a full and complete sentence.”  https://twitter.com/realDonaldTrump/status/1069614615510859776

11/ Mueller’s office agreed with Cohen to inform the Court of his cooperation.  It is expected to do so soon.

12/ The #Watergate comparison:  Cohen’s role in the investigations of possible crimes involving President Trump & others close to him in business, in his presidential campaign, & in his administration, resembles the role that James W. #McCord, Jr., played in Watergate.

13/ McCord, formerly an FBI agent & then a CIA officer, worked in 1972 as a bodyguard & a security coordinator at the Committee to Reelect the President (CREEP) [#Nixon].

14/ On June 17, 1972, McCord was one of five burglars arrested in Democratic National Committee offices in the Watergate hotel & office complex in Washington, D.C.

15/ The U.S. Department of Justice—the U.S. Attorney’s Office in D.C.—investigated.  It persuaded a federal grand jury to indict McCord, his fellow Watergate arrestees, & two others to whom they were connected.

16/ Judge John J. #Sirica, Chief Judge of the U.S. District Court for the District of Columbia, tried the case.

17/ Early in the trial, five of the defendants—a former White House employee named E. Howard Hunt & the four other burglars who had been arrested at the Watergate with McCord—pleaded guilty.

18/ The trial of McCord & his remaining defendant, CREEP general counsel G. Gordon Liddy, went forward.  The jury convicted each man on every charge.

19/ Chief Judge Sirica, skeptical that all the facts had been brought out at the trial, then prepared to sentence the seven men.

20/ On Tuesday, March 20, 1973, three days before the scheduled sentencing, Judge Sirica was shocked to find McCord in the reception area of the judge’s chambers, talking to one of his law clerks.

21/ McCord was there to deliver a letter.  It turned out to be one of the most consequential letters in U.S. history.

22/ After taking appropriate precautions, Judge Sirica, before witnesses, opened McCord’s letter.  As he read it, he began to think, according to his memoir, “This is it, this is it, this is the break I’ve been hoping for.”  http://watergate.info/1973/03/19/mccord-letter-to-judge-sirica.html

23/ Judge Sirica kept the letter secret from the public until McCord’s sentencing at the end of that week.  But, on that Tuesday evening, he shared & discussed it with his other law clerk.  “I’ve always told you I felt someone would talk.  This is going to break this case wide open.”

24/ On March 23, Judge Sirica read McCord’s letter in open court.  He then sentenced the convicted defendants.  He gave lengthy sentences to six & put off sentencing McCord.

25/ McCord’s letter indeed began the unraveling of Watergate.  It led to further investigations, confessions, guilty pleas, indictments, & convictions, & to a President’s resignation.

26/ McCord committed serious crimes.  Then he came forward & told truthfully to prosecutors, juries, & Congressional committees, what he had done & what he knew.

27/ This cooperation earned him judicial credit.  Chief Judge Sirica sentenced James McCord in November 1973 to one to five years in prison.  He ended up serving four months.

Mets & Management

I write from New York Mets Country—I work in Queens, just a few miles from Shea Stadium Citi Field, surrounded by many great people who are Mets fans.  (And I write from the baseball offseason—painful.)

The Mets have a new general manager, Brodie Van Wagenen.  He is a former sports agent, including for some players whom the Mets, so now he, employs.

It’s odd that he has no experience in the management of a baseball club.

It’s also problematic that he has real conflicts of interest, between his loyalties to players he represented in the past and his job now to boss them.

Van Wagenen could turn out to be great.  But I’m doubtful.  I base this on the above, and on his goofy statements—yes, things he said; how he speaks about what he thinks—at his October 30 introductory press conference.  These included:

“All I can go off of is what my experience has been and try to surround myself with people that fill in the gaps that I lack.”

“I hope to have an existing group of people that are here, and I hope to build around them, regardless of what the titles are.”

“I want [the Wilpon family, which owns the Mets,] to be involved. The truth of the matter is, if they’re not, that’s bad ownership.”

Yes, I know—former New York Yankees star, then Mets player and then Mets manager Yogi Berra also had an amusing way with words…  But Yogi was a field manager, not a general manager.  He knew, to put it mildly, everything that his job required.

Being General Manager is not only about knowing the game.  GM is a major business leadership position.  To be effective, a business leader needs to be, and to show it by sounding, sharp.  At least so far, Van Wagenen hasn’t shown it.

Oh, and one more strike against Van Wagenen as general manager—it was Jeff Wilpon’s idea.  The New York Times reports that Wilpon, the Mets co-owner and chief operating officer, is Van Wagenen’s friend.

It was Wilpon—part of what New York sports fans all know to be the Mets, well, to borrow a phrase, “bad ownership” [So maybe Van Wagenen does speak well, and slyly?]—who first suggested to Van Wagenen that he should apply for the general manager position.

Van Wagenen was reluctant (good first instinct), but in the end he applied.  Wilpon then hired the candidate he had recruited.

* **

Pitchers and catchers report to spring training in just a few months.

And someday, Mets fans,…

“Behind Enemy Lines”

This post is not about the 2001 feature film of that name.  That film is a family holiday classic … if you happen to be a person who was wandering around Times Square at Christmastime ’01 and picked a film for the family to see without being entirely attentive to your younger child’s sensibilities.  But I digress.

I’m ambivalent about football, because of what we now understand well about the brain injuries it causes.  And I’m a hypocrite who roots intensely for – indeed I co-own – the Green Bay Packers.

Thus the point:  I read recently a Princeton University obituary of alumnus Jonathan G. Bunge ‘58.  He was an Illinois lawyer whose life had many great components.

Read it here – you’ll see the particular greatness that caught my eye.

A Law Faculty Candidate and His Judicial Reference (1934)

Posted over on PrawfsBlawg (thanks!), a piece on U.S. Supreme Court Justice Benjamin N. Cardozo and a lawyer who was seeking in 1934 to become a law professor.

October 4, 1934:  Justice Cardozo, wearing his Phi Beta Kappa key.