Author Archives: JQB

Biographer Goggles

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Janet Maslin, in her New York Times review last week of Ron Chernow’s new biography of Ulysses S. Grant, praises Chernow for “manag[ing] to put on Grant goggles and deal primarily with this one soldier’s role in the military, this one leader’s role in the Civil War.”

I find this helpful.  Without such goggles—or, pick another metaphor, without binoculars that can be trained on one figure, or without a magnifying glass that can enlarge details of a key face in a crowd—biographical writing can too easily become general history.  That context is necessary, of course.  But not too much—the biographer’s point is to see, to point to, to communicate, the life of a person.

Back to my goggles.

President Reagan Against Political Gerrymandering

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I received yesterday the new memoir by Harold Burson, The Business of Persuasion.  Now in his tenth decade, Harold is a giant in the field of public relations, co-founder of the global firm Burson-Marsteller, formerly an Armed Forces Radio Network reporter during 1945-46 at the international Nuremberg trial of the principal Nazi war criminals, a truly wise man, and, I’m very lucky to say, my friend.

I have only begun to read the book. So far it’s smooth and smart, filled with great stories and clear, profound life-lessons.  Harold calls these his “Takeaways,” and he very helpfully itemizes these keys to success at the end of each chapter.

When I finish reading Harold’s book—which will be soon, because, as he writes in a first chapter Takeway, daily reading of good material is both a pleasure and wise—I plan to write more about it.

I’m writing now about a Chapter One nugget because it’s striking and timely.

As Harold Burson recounts, he was an important adviser and friend to President Ronald Reagan, especially in his post-presidency years.

October 10, 1984:  Hugh Downs, Harold Burson, Jack Anderson, and President Reagan, at the White House launch of the Young Astronauts program

In 1989, Harold advised President Reagan, newly-retired and beginning to give talks to various audiences, to include in his speeches some bipartisan messages.

Reagan liked the advice.  He then described two issues that had concerned him for a long time.

One was the Twenty-Second Amendment to the U.S. Constitution.  Since the 1950s, it has limited presidents to two terms.  Reagan, having been there, thought it was terrible that the Constitution makes every reelected president a lame duck.  He preferred to trust the possibility of third terms to presidents’ sound personal decision making, and also to voters.  He noted that he was glad that President Franklin Roosevelt had been able to run for a third term in 1940.  (Reagan voted for him then, as he had in 1932 and 1936 and would again in 1944—F.D.R. was one of Reagan’s great heroes.)

The second concern that President Reagan voiced to Harold Burson was about the politicized methods that State legislative majorities use to draw the boundaries of Congressional districts.  Reagan said, in substance—Burson is careful to note that he puts in quotation marks the substance, reconstructed from documents and memory, of what a person said, not his verbatim words—that

“[r]ather than leaving it to the politics of whichever party controls a state’s legislature, each state should have an independent nonpartisan commission whose sole responsibility is redistricting based on census results.”  [Reagan] condemned gerrymandering; there should be geographic integrity in setting the boundaries of congressional districts. (p. 22)

Harold Burson agreed with the logic of President Reagan’s bipartisan—which is to say, really, his nonpartisan—position, and obviously I do too.

The U.S. Supreme Court currently is deciding the constitutionality of partisan gerrymandering in state legislative districts.  The case, Gill v. Whitford, was argued last week, and the Court’s decision is expected in coming months.  For information on the case, including briefs and a link to oral argument audio, visit this SCOTUSblog page:

Gill v. Whitford

The issue that concerned President Reagan, partisan gerrymandering of Congressional districts, is formally different from Gill v. Whitford’s focus on partisan gerrymandering of state legislative districts.  But the issues raise substantively the same question—the district line-drawers are one and the same state legislators, holding majority power, legislating boundaries so as to maximize their party’s advantage beyond its candidates’ abilities to win votes at the polls.

As the Supreme Court considers Gill v. Whitford, I hope that it will heed President Reagan’s wisdom—if it’s not too late to “file” another “amicus brief” in the case, maybe this can count as his.

I’m grateful to Harold Burson for bringing it to our attention.

And you should buy and read his book!

Iran-Contra Criminal Charges Pertaining to Iran and the Contras

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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”

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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:

 

 

A Professional Responsibility Exam Question?

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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

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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.

 

Women in Senior Government Ranks, and Not

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Notice the women.   In three of the U.S. court cases that were filed challenging the legality of President Trump’s January 27th Executive Order seeking to deny entry to the United States to nationals of seven specified countries, the Federal Judges are women:  Judge Leonie M. Brinkema of the Eastern District of Virginia (Alexandria); Judge Allison D. Burroughs of the District of Massachusetts (Boston); and Judge Ann M. Donnelly of the Eastern District of New York (Brooklyn).

Each Judge was assigned to her respective case by her Court’s random assignment system.  But each is there on the federal bench because recent Presidents, advised by U.S. Senators in the particular state, have made it a point, and at times a high priority, to appoint more women.  President Clinton appointed Judge Brinkema, who previously served as a federal prosecutor and then a federal Magistrate Judge, in 1993.  President Obama appointed Judge Burroughs, also a former federal prosecutor and then a lawyer in private practice, in 2014.  And he also appointed Judge Donnelly, a long-time New York City prosecutor and then a New York State judge, in 2015.  Women are still underrepresented on the federal bench, from the Supreme Court through the courts of appeals and the district courts, but the U.S. has made some progress in this area towards fairness, representation, and equal opportunity.

For National Women’s Law Center data from October 2016 on women on the federal bench, click here.

In related news, the New York Times reports today that the U.S. Department of State is losing, to retirements, two of its highest-ranking women:  Anne W. Patterson, until earlier this month the Assistant Secretary of State for Near Eastern Affairs, and before that U.S. Ambassador to El Salvador, to Colombia, at the United Nations, and to Egypt; and Victoria J. Nuland, Assistant Secretary of State for European & Eurasian Affairs until earlier this month.

For a March 2016 Foreign Service Journal report on women in the U.S. Foreign Service, click here.

Respecting Respectful Janet Reno (1938-2016)

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The New York Times Magazine, in its December 25th annual selection of “The Lives They Lived,” highlighted dozens of this year’s departed.

Among all the greats remembered there, only one, Janet Reno, was the subject of two reports.

One showed her rough-hewn Florida bedroom, photographed shortly after her death on the eve of Election Day last month.

The other remembered her during her 2002 near-miss campaign for Governor of Florida, two years after she had finished serving for nearly eight years as Attorney General of the United States.

In 1993 and 1994, as a Main Justice lawyer, I got to see AG Reno in action in a few big-crowd meetings.  She was decency personified, attentive to detail, and concerned only that she and everyone in the Department of Justice was doing their jobs well.

And she was charmingly not hip.  For example, at one of those meetings, held around the time when “dissing” became a word and a thing, the AG began to state her disagreement with someone’s point as follows:  “I don’t want to be ‘dis,’ but…”  (The room then froze for a second, and then exploded in laughter.  The AG, puzzled but knowing she’d said something funny, joined in.)

Janet Reno wasn’t “dis.”  She was exactly, authentically, entirely the opposite.  And her personal goodness moved and lifted people, including throughout the Department of Justice—she led the excellent people of federal law enforcement to do better, including in some hard passages, than they would have without her to follow.

Public life, in Florida and nationally, was better for it.

 

Hillary Clinton Should Run for President

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In eight days, on Monday, December 19th, electors will meet in each state capital.  They will cast their votes for the next President of the United States.  Each elector also will vote, separately, for the next Vice President.  The electors’ votes in each State then will be added up to determine nationwide totals.  In each race, the candidate who receives 270 or more electoral votes will win the office.

Each State’s law provides that its electors shall vote based on popular voting in that State.  At this time, popular vote counts indicate that Donald Trump is entitled to 306 electoral votes, and that Hillary Clinton is entitled to 232 electoral votes.  Although some States are still completing their initial counts of absentee, military, provisional, and other ballots, and although a few States are recounting votes, it is not expected that the popular vote winner in any State will change.  Thus while Clinton won the national popular vote by over 2.6 million votes (at present count), 48.2% for Clinton to 46.3% for Trump, he won enough States to earn more than 270 electoral votes, if each elector votes based on his or her State’s popular vote.

Trump will be elected president, however, only if a sufficient number of electors do cast their ballots for him.

The Electoral College was not created to be an unthinking rubber stamp.  And across U.S. history, some electors have voted other than as-pledged, choosing not to vote for a candidate whom they regarded as unfit for or undeserving of the office.  Indeed, it’s reasonable to assume that most electors across U.S. history have voted not as automatons, but based on reflection and then a personal decision that the candidate to whom the elector was pledged, the candidate who won the popular vote in the elector’s State, was fit to be president or vice president.

For honest, conscientious 2016 electors, which I sincerely assume each of them to be, there are numerous, powerful reasons to think about voting for Clinton, not Trump, including:

  • Most of the voters preferred Clinton;
  • U.S. government intelligence agencies have determined that Russian government espionage helped Trump significantly, including by injecting information into the campaign that depressed Clinton vote totals, especially in States she lost narrowly;
  • Trump’s business dealings, including with foreign governments, pose grave questions of conflict of interest, illegality, and disloyalty to the U.S.; and
  • Trump’s proposed nominees to Cabinet and other high offices include persons whose beliefs and policy commitments run against the best interests of the U.S. and its people.

This week, the week before electors will cast their ballots on December 19th , is the time for these very serious political arguments.

Donald Trump, conducting himself as president-elect, is in effect continuing to argue that the electors should elect him.

For the sake of the country, Hillary Clinton should complete her campaign for president by joining, by rebutting, that argument.  I don’t believe that the odds are in her favor.  But if—

  • if she gives voice, thoughtfully, to all of the issues that now surround who should be the next president;
  • if she explains why she should be chosen and how she would work, in assembling a government and in pursuing policy priorities, to repair wounds and advance the life of every American;
  • if she articulates a “unity, especially now” vision, including how we could get past the anger that her election would cause…

*          *          *

Clinton, in this final week of campaigning, would be doing best her chosen tasks, running for and preparing to be President of the United States.  And she would be doing everything that she could, which is what we reasonably ask of our presidential candidates, to serve and protect a great America.

Thirty-eight electors in States where Trump won the popular vote have the power, personally and legally, to elect Hillary Clinton.

She should seek, with everything she’s got, their votes.

Professor Joseph A. Calamari (1919-2016)

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I’m sad to report that my St. John’s University School of Law faculty colleague Joe Calamari died on December 2, 2016, at age 97.

February 27, 2007:  Celebrating Joe’s 88th birthday.

When we became colleagues in 1995, Joe was already retired from full time teaching… except for the fact that he taught actively every semester, was a leading authority on admiralty law, was hugely respected and involved in the admiralty bar in New York City, and was very connected to students and lawyers across their lives and careers.

I learned that Joe was a World War II and a Korean War veteran.

When I began to write about the Nuremberg trials, he stopped by my office to talk about them, smartly.  After a while, he said, gently, “I was there for a day—it was the day Keitel took the stand.”  His claim was true and typically modest.  We pinned down the date:  April 3, 1946.

When Joe finally, really, retired from teaching in 2011, St. John’s admiralty law society honored him at a special dinner, and the society took his name.

April 7, 2011:  Marie & Joe Calamari (and a earlier Joe photo behind them).

It was a great privilege to know him.