From Judge Jesse M. Furman in Usherson v. Bandshell Artist Mgmt. (for more on Richard Liebowitz, see these posts):

In the colloquy that followed the evidentiary hearing in this case on January 8, 2020, defense counsel advised the Court that he had reason to believe that Paragraph 9 of the Complaint — which alleges that the photograph at issue in this case (the "Photograph") "was registered with United States Copyright Office and was given Copyright Registration Number VAu 1-080-046" ("Registration 046") — was inaccurate. [Generally speaking, before a copyright lawsuit is filed, the plaintiff must register the copyrighted work. -EV] In response, counsel to Richard Liebowitz and the Liebowitz Law Firm, James Freeman, represented that Paragraph 9 of the Complaint "was based on Mr. Usherson's representation that the photograph in this case was under that copyright registration number"; that counsel had no "reason to doubt the veracity of [Mr. Usherson's] representations"; and that, before filing suit, counsel verified that Mr. Usherson was the claimant for Registration 046, but did not take additional steps to confirm that the Photograph was actually registered. The Court then ordered Plaintiff's counsel to submit a letter-brief "indicating, one, whether the photograph at issue in this case was, in fact, registered with the Copyright Office; and, two, if it was not, why sanctions would not be appropriate based on the allegation in paragraph 9 of the complaint."

Pursuant to the Court's Order, Mr. Liebowitz filed a letter-brief on January 17, 2020. In his letter, Mr. Liebowitz concedes that Paragraph 9 of the Complaint "is inaccurate" because the Photograph "was not registered as part of the 046 Registration." Mr. Liebowitz reports further that "the Photograph was registered in Plaintiff's name under registration number VAu 1-373-272" ("Registration 272"), with an "effective date of August 22, 2019" — more than one month after this lawsuit was filed. Mr. Liebowitz attributes the problem (although it is not clear if the problem to which he refers is the inaccuracy of Paragraph 9 or the failure to register the Photograph in the first instance) to "administrative mistake[] or "clerical error[]" — but he does not elaborate on the nature or source of the purported mistake or error. Ultimately, Mr. Liebowitz contends that the Court cannot impose sanctions "for designating an incorrect copyright registration number in the initial complaint" without "a specific showing of bad faith conduct on [the] part of Mr. Liebowitz, the attorney who signed the complaint, respecting the registration itself."

[Footnote: Mr. Liebowitz also accuses defense counsel of "violat[ing]" the Court's Order by raising the registration issue at the January 8, 2020 hearing, "which was narrowly limited to the question of whether Mr. Liebowitz obtained certain permissions from the Mediator." Not so. Defense counsel did not seek to introduce evidence with respect to the issue during the evidentiary hearing itself, which was — per the Court's earlier Order — "narrowly limited." Instead, as an officer of the Court, he brought it to the Court's attention in the colloquy that followed the evidentiary hearing. That was entirely appropriate.]

Mr. Liebowitz's unsworn letter raises more questions than it answers.

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Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice.

This week, the Supreme Court heard oral argument in Espinoza v. Montana Dep't of Revenue, an IJ school choice case. Click here for an account of the hearing from IJ's Nick Sibilla. Or click here to ponder along with Anthony Sanders, the director of IJ's Center for Judicial Engagement, what it means to have the gov't on both sides of the case. Or click here for an IJ podcast that notes, among other things, that the U.S. stands nearly alone among the world's democracies in providing so few educational options—pedagogical, secular, religious, private, public—to families.

• Zeta drug cartel assassins attack two American agents in Mexico, killing one and injuring the other. After extradition to the U.S., they are convicted of, among other things, killing an officer or employee of the United States and using a firearm while committing a crime of violence. Wait a minute! Do these laws even apply outside the U.S.? D.C. Circuit (creating a circuit split): We generally presume laws don't apply extraterritorially unless there's evidence Congress intended that. There is such evidence for the law about using a firearm but not for the other law. Remanded for resentencing.
• Operating a website with the intent to promote or encourage the prostitution of another person is a federal felony punishable by 10 years in prison (25 years in some circumstances). A coalition of sex-worker advocacy groups and others worried about running afoul of the law sue, alleging it violates the First and Fifth Amendments. D.C. Circuit: And at least two of them—the founder of a website that allows sex workers to share information about products and services they use and a massage therapist who can no longer advertise on Craigslist—have standing. Concurrence: But the law doesn't reach the sort of pure issue advocacy the other plaintiffs engage in.
• Federal law bans people from obtaining firearms if they have been convicted of a "serious" crime that carries a potential punishment of over a year in prison. Does that violate the Second Amendment rights of a man who was convicted of DUI in 2005? Third Circuit: The conviction carried a maximum sentence of five years, so no gun for him. Dissent: We all agree that DUIs are serious, but his exact crime would lead to a federal prohibition on gun possession in only 8 of 51 jurisdictions.
• In 1878, workers in then-Danish colony of St. Croix, Virgin Islands set fire to 50 sugarcane plantations and burn much of the town of Frederiksted to the ground. (Among their grievances: a law that allowed them to change jobs only once a year—on one particular day of the year.) Starting in 2009, a St. Croix legislator obtains $90k in public funds to research the revolt—locally known as Fireburn—for a movie. Yikes! The legislator (who is also the author of a three-volume etiquette guide for young men) spends most of the money on other stuff. Third Circuit: Conviction affirmed.
• While visiting an inmate in a Virginia prison (who was suspected of running drugs in the prison), woman is observed adjusting her clothes in ways officers deem suspicious. They interrupt the visit to tell her that she must consent to a strip search if she ever wants to visit again. The crying woman is subjected to a full strip search, during which she is required to undress, remove her tampon, squat and cough, and expose her anus. (No contraband is discovered.) Was the search supported by reasonable suspicion? Fourth Circuit (over a dissent): Hey, she admits she touched her clothes; what else do they need to form a suspicion?
• Allegation: Augusta County, Va. police officer arrives outside woman's home, encounters woman's dog (a German Shepherd named Jax), and shoots the dog in the head. Woman sues. Officer: I reasonably felt threatened by the 150-pound Jax, who was advancing toward me and barking. Woman: Jax was tied to a zip lead, and it was obvious he couldn't have reached the officer. District court: Qualified immunity.  Fourth Circuit: The case must proceed. A reasonable officer would have known that shooting the restrained Jax was unreasonable.
• "At worst, the officers heard reports that a man fitting Jones's rough description was eating out of a dumpster." So no qualified immunity, holds the Sixth Circuit, for the Elyria, Ohio officers who allegedly frisked, tackled, and tased a compliant Jones.
• Former U.S. Attorney General Eric Holder receives a voicemail saying, "former U.S. Attorney General Eric Holder, I am going to murder you." Sixth Circuit: Which is indeed a true threat. Conviction upheld.
• Under Indiana law, if a woman in an opposite-sex marriage gives birth, her husband is presumed to be the child's biological father and is listed on the birth certificate. If a woman in a same-sex marriage gives birth, only the birth mother will be listed on the birth certificate, even if the wife donated the egg. The only way to have both mothers listed on the birth certificate is to go through the adoption process. An equal protection violation? Clearly so, says the Seventh Circuit, though the district court's injunction went a bit too far.
• An Illinois inmate with a year of miserable rectal pain will get a trial, holds the Seventh Circuit. His evidence—that a prison doctor insisted on treating anal warts rather than the fissure causing the pain—gets him past summary judgment.
• Seventh Circuit: In which Frank Easterbrook is having none of the DOJ's bull@#$%.
• Allegation: While jogging through a St. Louis park, man stops to watch police officer conducting traffic stops. Concerned that a "suspicious person" is following her, the officer radios for assistance. When the jogger refuses to disclose his Social Security number to one of the dispatched officers, the officer frisks, cuffs, and detains him for 20 minutes before a supervisor orders the jogger released. Eighth Circuit (over a dissent): Any reasonable officer would know that you can't detain someone just for quietly watching police at work. No qualified immunity; remanded to sort out factual disputes.
• After years in prison for murder, four Fairbanks, Alaska men enter into a settlement with the state under which their convictions are vacated. (For the backstory, take a look at this informative article about "the Fairbanks Four.") Upon their release, they sue the city and four police officers for all manner of constitutional violations associated with their convictions. District court: No dice; your lawsuit would call into question the original convictions, which is not permitted. Ninth Circuit (over a dissent): Yes dice; the original convictions were vacated, so the case may proceed.
• Venerable legal news service sues Ventura County, Calif. court over its policy of prohibiting media access to newly filed complaints until after those complaints have been processed, which can take several days. After years of litigation, the court adopts a new policy, under which complaints received before 3:00 p.m. are immediately scanned and made publicly available, while complaints received after 3:00 p.m. are processed the following day. Unsatisfied, the news service challenges the new procedure. Ninth Circuit: The old procedure violated the First Amendment right of access, but the new one is fine.
• Environmental activists: The gov't has long promoted fossil fuel use despite knowing that it can cause catastrophic climate change. That violates the right to a "climate system capable of sustaining human life," per the Due Process Clause of the Fifth Amendment. We demand a court order requiring the gov't to develop a plan to "phase out fossil fuel emissions and draw down excess atmospheric CO2." Ninth Circuit: We're scared, too, but that isn't something a federal court can do. Dissent: If courts can oversee desegregation orders, they can oversee this. Otherwise, "[w]hen the seas envelop our coastal cities, fires and droughts haunt our interiors, and storms ravage everything between, those remaining will ask: Why did so many do so little?"
• Property owners decline $56k offer for easement allowing pipeline to bisect their 40-acre Lake County, Fla. property. The pipeline company employs eminent domain, and the pipeline goes in anyway. Yikes! A jury awards the property owners over $300k in just compensation. New trial? Eleventh Circuit: Nope. Pay up.

Are you a law student? Are you on the East Coast? Do you want to learn how to turn an idea into a full-blown Supreme Court case or what the real difference between public interest law and private practice is? Then join the Institute for Justice at our second Legal Intensive—the premier one-day public interest law program. Students will be able to participate in IJ's renowned student programming, including an inside look at our newest cases and cert petitions with IJ lawyers and staff. This event will be held in Arlington, Virginia on March 28, and we'd love to see you there! Click here to learn more and apply!

Yesterday, the New York Times published my Op-Ed about the impeachment trial. I received a lot of feedback. This post will answer some of the most commonly-asked questions I received. I apologize that I can't respond to all emails, comments, and tweets. I still haven't checked my Twitter mentions. Indeed, I am using this opportunity as an excuse to wind down my Twitter usage. The site truly is a waste of time, and seldom yields any productive discourse. I removed the app from the home screen of my phone. Let's see how long this detente lasts.

1. Why didn't you write about X?

The Times asked me to write 900 words. The final version is about 1,000 words. Space is an important constraint on all op-eds. I have a very limited frame to convey an intricate positions. I spent considerable time laboring over nearly every word. I had wanted to develop some issues further, but the Times cut them out. The editors also asked me to talk about a few other issues that I would have preferred to exclude. Writing an Op-Ed requires making cuts, additions, and compromises. Given unlimited space, I could have written a book about the issues. I probably will one day–I am rarely criticized for not writing enough.

2. You didn't write about X so you must be disingenuous!

This criticism is one of the most common, and disheartening responses I received. There are many, many reasons why an Op-Ed includes some arguments, and not others. Question #1 above addresses some of the more practical rationales. Ultimately, the criticism of "Why did you write about X" boils down to "Why didn't you write the Op-Ed I would have written." There is a really simple answer: the New York Times invited me, and not you, to write the Op-Ed.

I wanted to convey very specific positions in a very limited space. It is not conceivable to simply "mention" some other argument in passing. That drive-by analysis will leave the reader uncertain, and would make my analysis incomplete. Any argument I offer has to be fully developed, or not offered at all. (The difficulties of writing a 900-word op-ed about something as complicated as impeachment should be manifest). There are lots of other issues I would have liked to discuss. But I did not have time to address the second article of impeachment. Or the Impoundment Control Act. Or the GAO decision. I decided to fully explore one aspect of the House's case–the relationship between the "abuse of power" article and "personal political benefit."

3. Only a partisan hack could write this op-ed. 

I view the phrase "partisan hack" as an academic version of "deplorable"–a person could only hold a belief because he is blinded by partisan rage. I encourage anyone reading this post to remove the phrase "partisan hack" from their discourse. Moreover, I chuckle when people use this label for me. The Op-Ed criticized Trump and his lawyers, but said his conduct does not rise to the level of impeachment:

Mr. Trump's lawyers respond that the call was "perfectly normal." Yes, that phrase actually appears in the brief. Regrettably, parts of the brief are written in a far-too-political tone. . . .

As a policy matter, I disagree with Mr. Trump's decision to ask for an investigation of the Bidens. Even if warranted, it should have been avoided at all reasonable costs. The Republic would have been fine if we never learned more about Burisma.

The Times was attracted to my position precisely because I have been critical of Trump's actions, but think the articles do not warrant removal.

4. Trump wasn't interested in Ukraine actually investigating Ukraine; he only wanted an announcement of the investigation.

My co-blogger Jon Adler raised this question, which I take to be a very serious point. It is one I have given considerable thought, and have discussed at some length with colleagues. I offered a tentative response in an interview for Law and Crime:

President Trump may have reasonably believed that merely asking for an announcement of an investigation would be sufficient. That is, he would not need to follow through and supervise how the Ukrainians manage their affairs. The announcement would line up all the principals in place, and the foreign government could conduct the investigation as they see fit. Or he may have changed his mind after the phone call about what was actually needed. Priorities do shift.

The more difficult question is what is the appropriate burden of proof for an impeachment conviction. It is not Trump's burden to show that he wanted an investigation, and not merely an announcement of an investigation. I think it is the House's burden to show that Trump did not want an actual investigation, but only the announcement. I think the evidence does show he wanted an announcement about an investigation, and the evidence is silent about the follow-up. That absence of evidence, in my mind, is not sufficient to convict. We can certainly draw an inference that he didn't care about the actual investigation, and it is a reasonable inference, but not enough in my mind to remove a President.

Much of the impeachment trial turns on drawing inferences from incomplete facts. After all, Trump has refused to allow his subordinates to respond to subpoenas. I think a Senator could draw an adverse inference from this behavior. I would be hesitant for doing so, for reasons I advanced in an earlier response to Ilya.

5. It doesn't matter if other politicians act to promote their re-election campaigns. Trump withheld foreign aid in violation of the Impoundment Control Act. 

Specifics matter here. Far too many commentators casually write that GAO concluded that President Trump violated the Impoundment Control Act. This claim lacks precision. The GAO found that the Office of Management and Budget violated the Impoundment Control Act. Not the President. This difference matters.

Let me state my answer differently. If the President violated the Impoundment Control Act, we would not need to consider the nebulous charge of "abuse of power." Running afoul of a statute could itself be a ground for impeachment. For example, President Johnson was impeached for violating the Tenure of Office Act. But the House did not make the specific claim in the Articles against Trump. Instead, they relied on the nebulous charge of "abuse of power," premised on a wide range of activities.

There could be grounds for impeachment with respect to the ICA. Seth Barrett Tillman and I flagged this issue on Lawfare more than a month ago:

In the impeachment context, Trump's liability could result from knowingly failing to take care that his subordinates faithfully executed the law. We say "knowingly" because it is unreasonable to expect any president to be intimately familiar with every action taken by every subordinate. Additionally, Trump may violate his oath of office if he personally directed others not to make a timely transfer of funds with an intent to block the statute's implementation.

As of now, we have only indirect evidence that the President ordered the hold. I think it is reasonable to draw that inference that he issued such an order, but we have not heard from principals who actually heard that order from Trump. (They have not been permitted to testify.) We do not have evidence that Trump knowingly ordered his subordinates to violate the statute. At most, I think it is safe to presume Trump thought ordering such a hold was lawful. GAO, and Congress, may disagree. But I think you need a higher burden of proof to establish a violation of the Oaths Clause.

6. You are normalizing Trump's dangerous behavior.

The President is being impeached based on specific legal arguments. Those arguments are either right or wrong. I view my role in this process as limited: offer my opinion on whether those arguments are right or wrong. I freely concede that imposing a higher burden of proof would allow this President, and future Presidents, to engage in abusive behavior. On this point, Ilya Somin and I largely agree. I think this tradeoff is justified. Ilya does not. The potential for future abuse does not eliminate the present-day debate about the validity of these articles.

7. You still haven't persuaded me.

I am not surprised. My goal is not to persuade people. Truly. I recognize that on most issues, people have already made up their minds. Especially on a polarized issue like impeachment, most people are dug in. I do not write to change minds. I write to articulate my position and plainly and cogently as I can. If people see a new perspective, but remain unpersuaded, I will claim victory.

Far too many people (academics especially) view persuasion as something of a blood sport. They will stop at nothing to convince other people they are wrong. Most Twitter threads, or list-serve exchanges, that go beyond two or three volleys, reflect this dynamic.

The past three years have taught me a lot about myself, and how I view others. I have tried, quite consciously, to dial back my rhetoric, proceed deliberately, and avoid assuming the worst in people. I always try to take a step back and recognize that people can hold different views in good faith. I will leave you with a mantra I often repeat: "I do not know nearly as much as I think I do." Whenever you become irate at what someone else said, pause, repeat these words of wisdom, and then consider how to proceed.

Last Friday, an editor from the New York Times asked if I would be willing to write an op-ed in support of the President's defense. I agreed. I had been planning to write something, and was glad to have the large forum. I did so with full knowledge that the criticism–on the right and left–would be significant.

The article was published in the early morning. About twelve hours later, the Times website is up to nearly 3,000 comments and counting. It was the lead piece on the opinion page for most of the day. I received about three-dozen "fan" emails. A few of them used racial epithets. (People made an incorrect assumption about my race based on my last name.) No anti-semitic email yet, but I've received those in the past. The negative emails far outweigh the positive emails. I suspect my Dean has also received some messages. I had given him a heads up. (One person wrote that he would contact my "supervisor!").

I received a handful of voicemails at my office, one of which said "I should be ashamed of myself." The person didn't leave a name. I did not check my Twitter mentions today, quite deliberately. Friends have told me they're pretty bad. Plenty of academic subtweeting. Indeed, at least one blog post criticized me, but did not name me–"some have argued." There maybe others, but they are hard to find.

I am grateful to my co-bloggers Jon Adler and Ilya Somin for offering substantive responses to my post. They model the best of what academic discourse has to offer. I will respond to them in due course.

Michelle Carter was released from prison yesterday for good behavior, several months ahead of the scheduled end of her 15-month sentence. I previously blogged about the case, in which Carter was convicted of involuntary manslaughter for encouraging her boyfriend to commit suicide, here, here, and here.

Last week, the Supreme Court (unfortunately, in my view) denied cert in the case.