The Federal Judges Association tells members that "emergency meeting" was not called to discuss President Trump's intervention in Stone Sentencing

"Unfortunately, though It was not anticipated that the calling of the meeting would become public, it did. That fact led to inferences and reports that were, at a minimum, misleading."

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On February 17, USA Today published a story titled "Federal judges' association calls emergency meeting after DOJ intervenes in case of Trump ally Roger Stone." My first reaction was, What is the Federal Judges Association? I follow the Federal Courts fairly closely, and had never heard of this group. Why would federal life tenured judges need a trade organization?

I learned that the group functions like a voluntary union. It advocates for, among other things, higher judicial pay and benefits. For example, the group filed an amicus brief in Beer v. United States. That case concerned cost of living adjustments (COLAs) for federal judges. The group also filed a class action suit on behalf of all Federal Court Judges. The Court of Federal Claims ruled in favor of the class in Barker v. United States.

That sort of work seems well within the responsibilities of a voluntary union for judges. But more recently, the FJA–or at least its President–may have exceeded those boundaries. The USA Today offered this account:

A national association of federal judges has called an emergency meeting to address growing concerns about the intervention of Justice Department officials and President Donald Trump in politically sensitive cases, the group's president said Monday.

Philadelphia U.S. District Judge Cynthia Rufe, who heads the independent Federal Judges Association, said the group "could not wait" until its spring conference to weigh in on a deepening crisis that has enveloped the Justice Department and Attorney General William Barr.

"There are plenty of issues that we are concerned about," Rufe told USA TODAY. "We'll talk all of this through."

Velma White, an aide to the judge, said the meeting is set for 1:30 p.m. Wednesday. USA TODAY had previously reported that the meeting would take place Tuesday.

Rufe, nominated to the bench by President George W. Bush, said the group of more than 1,000 federal jurists called for the meeting last week after Trump criticized prosecutors' initial sentencing recommendation for his friend Roger Stone and the Department of Justice overruled them.

Rufe said the judges' association is "not inclined to get involved with an ongoing case," but she voiced strong support for Jackson.

"I am not concerned with how a particular judge will rule," Rufe said, praising Jackson's reputation. "We are supportive of any federal judge who does what is required."

On Wednesday, the federal judges are set to convene via a conference call involving 15 to 20 officers and members of the association's executive committee.

Founded in 1982, the 1,100-member association supports "a fair, impartial, and independent judiciary," according to its website.

Rufe said the group has not decided how it will report the result of its meeting, if at all. "We just could not wait until April to discuss matters of this importance," she said.

Judge Rufe erred. She should not have said anything to the reporter, Kevin Johnson. Even if Johnson found out about the meeting (perhaps from another FJA member), Judge Rufe response should have been "no comment." Judges should not talk to the press about such politically-charged matters. Judge Rufe should have known how her statements would be interpreted in this toxic climate. No surprise, her comment was used to further criticize President Trump and Attorney General Barr. (I criticized those criticisms in a Washington Post Op-Ed).

Apparently, Judge Rufe's statement was not well received by other judges. The New York Sun offers this account in an editorial titled, The Resistance Starts To Infect Our Courts. (I have already worried to colleagues that the "Veteran" Ninth Circuit judges are the first wave of an internal judicial resistance to President Trump's nominees):

Then, after the Justice Department moved to reduce a sentencing recommendation for Roger Stone, USAToday reported that the Federal Judges Association was calling an emergency meeting. Its president, District Judge Cynthia Rufe, said the idea was to address concerns about how Justice officials and the President were intervening in sensitive cases.

That shocked a number of federal judges, and Judge Rufe later tried to play it all down. Not, though, before one of the towering figures on the Second Circuit, Jose Cabranes, fired off to Judge Rufe a now widely circulated email. It expressed concern that the emergency meeting would "purport to speak for the federal judiciary on a pending political question."

"I urge you to come off this precipice, and to withdraw from active politics in the name of the federal judges of this country," Judge Cabranes, a longtime member of the FJA, wrote in his brief cable. "If you do not do so, you risk confusing the public about the role of the courts in our constitutional order and thereby deepening the crisis in confidence in our institutions."

I agree entirely with Judge Cabranes. The FJA should stay in its lane. Advocate for judicial pay? Fine. But the organization should not inject itself into partisan politics.

Yesterday, the FJA sent an email to its member list-serve, which I received from an FJA member:

From:   The Officers of the Federal Judges Association
To:       Members of the Federal Judges Association

Re:       Statement to Our Colleagues

There have been misunderstandings about a Federal Judges Association meeting originally scheduled for last week, resulting in questions and comments from several members. We wish to apprise all members of the facts.

A conference call of the FJA Executive Committee was set for last Wednesday. Those telephonic meetings between the annual meetings of the Board of Directors are common. Following the last Board meeting in April 2019, the Executive Committee met by phone in June, September, and November 2019, and January 2020. We regularly review financial statements, plan for future meetings, and confer with chairs of FJA committees on the work they are doing.

Despite reports to the contrary, last week's meeting was not an "emergency" meeting. It was not scheduled in response to any public controversy or pending case. Unfortunately, though it was not anticipated that the calling of the meeting would become public, it did. That fact led to inferences and reports that were, at a minimum, misleading.

President Cynthia M. Rufe issued no public statements or press release of the originally scheduled meeting, nor did she solicit press contact. Last Monday afternoon one reporter called seeking confirmation of the objectives of our Executive Committee meeting. How that reporter learned of the meeting is unknown. Judge Rufe acknowledged the fact that a meeting had been called but rejected the reporter's speculations as to its timing and purpose.

At no time was there any intent to involve the FJA in any political controversy or in any pending case. The FJA is non-partisan and seeks, like the judiciary itself, to remain outside of the political fray. Similarly, the FJA does not comment on the merits of any matter pending in any court, consistent with the Code of Conduct that applies to all of us. To avoid risk that the meeting might draw further attention, it was postponed. We chose not to issue a statement at that time for the same reason.

Our meetings are intended to pursue the important business of the FJA. They are a necessary part of fulfilling our duties and responsibilities to you, our colleagues, to address issues such as pay and benefits, security, civics education, the status of senior judges, and international rule of law, in accordance with the mission of the FJA. The officers and directors of the FJA remain focused on these purposes and appreciate your support for these common goals.

The FJA membership includes judges with sometimes differing positions on matters within our purview. We welcome your comments and inquiries. As an organization that depends on volunteers, our responses may not be immediate, but your officers and directors will respond as we can. In the meantime, we will continue to work toward the goals that we share.

This statement is largely non-responsive to the USA Today report. Again, here are the direct quotes from Judge Rufe:

  • "There are plenty of issues that we are concerned about. We'll talk all of this through."
  • "I am not concerned with how a particular judge will rule," Rufe said, praising Jackson's reputation. "We are supportive of any federal judge who does what is required."
  • "We just could not wait until April to discuss matters of this importance."

Is it possible the USA Today reporter made up each these quotes? Sure. But the email does not allege any such misconduct. Rather, the email says there were "misunderstandings" and "inferences and reports that were, at a minimum, misleading."

Judge Rufe should have known better. A reporter asked her questions about Stone's sentencing. She should have replied "no comment." Saying "We'll talk all of this through" would include talking about the Stone case. And her comment about "we just could not wait" is very difficult to make sense of, unless she is talking about Stone's sentencing. Budgetary matters are not urgent.

The FJA email does nothing to address Judge Rufe's comments. In any event, she does not speak for the FJA. Her comments did not represent an official press release or communication of the group. Judge Rufe should apologize, and take care not to speak to the press in her position of leadership–especially about such a politically-charged topic.

Update: The Wall Street Journal received the same email, and offered this comment:

So what happened? It could be that FJA and the press got their wires crossed, or that reporters inflated the significance of what they heard. Or it could be that at least some officers did plan some sort of political detour in the meeting and the organization is now backtracking in embarrassment. Either way, the story created perceptions of a politicized judiciary, and the FJA could help itself and the judiciary by setting the record straight.

I agree.

NEXT: Today in Supreme Court History: February 25, 1841

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  1. I remember these folks. They were all over Obama for dissing the Supreme Court.

  2. So there is a secret judge’s union?
    Cool.
    Now the DOJ and FBI are not at the top of my list.

  3. Has she resigned from her president post? She embarrassed the organization, seems like the least she should do.

    Is it a violation of judicial ethics for a judicial union to lie like this:

    Press release: “Judge Rufe acknowledged the fact that a meeting had been called but REJECTED the reporter’s speculations as to its timing and purpose.” [emphasis added]

    Article: “We just could not wait until April to discuss matters of this importance.”

  4. It’s about time for the judges to stop being patsies for Trump and his fascists. If only the German judges had resisted Hitler back in the day!

    The judges just need to order Trump’s arrest and order a special election which Sanders will win. That should end the crisis of legitimacy in our courts.

    1. “judges just need to order Trump’s arrest and order a special election”

      Which judges? Who are they ordering? With what authority? On what basis? In which case? Just to satisfy an unhinged commenter?

      1. Poe’s Law in action.

        1. Just wait. We’ll get to an application of Godwin’s Law soon enough.

          1. We should be so lucky. Trump is like Hitler squared.

            1. To Hitler infinity, and beyond!

  5. Pro: At least this isn’t some commentary on Sanders and Castro, which ill assume is on the way.

    Con: We are now assured there was no “emergency meeting” regarding how to deal with Trump’s expressed hostilities regarding the rule of law and our justice system or Bill Barr’s authoritarian bend, but still next to nothing written at the VC regarding Trump’s expressed hostilities regarding the rule of law and our justice system or Bill Barr’s authoritarian bend.

    1. Hard to write, in a non-fiction venue, about things that don’t exist.

      1. If you think this is a non-fiction venue, you need to read more of the comments.

    2. Wait, there was an over the top post by Post about Trump’s DOJ ignoring some immigration judge a few weeks back and getting corrected. And anything by Somin, putting it mildly, is all about (in his and your mind) Trump’s authoritarian bent (which by default include’s Barr).

      That said, Trump has followed judges orders thus far, even unblocking folks on Twitter.

      1. “Wait, there was an over the top post by Post about Trump’s DOJ ignoring some immigration judge a few weeks back and getting corrected.”
        “Immigration judges” aren’t real judges, and when they lie about the law, they may be safely ignored. Trump was not “corrected.”

    3. “authoritarian bend [sic]”

      Examples?

      1. Head’s still stuck in your ass, eh Bob?

        1. Good response. Very informative.

          1. What sort of response did you expect? Why should anyone engage you on any topic when you’re going to pretend that reality simply doesn’t exist?

            It’s far better to just acknowledge that your head is stuck up your ass, and that reality is in fact waiting for you to emerge from your fecal tortoise shell.

            1. So still no examples for your deep analysis.

              Any other bumper stickers you wish to discuss with us?

  6. About the only thing missing from the Handbook of Liberal Denial is, “it was out of context.”

    1. You forgot one, I’m waiting for a 3rd person POV “mistakes were made” sort of apology from the judge herself.

  7. Either Judge Rufe is a hardcore Never Trumper who decided to exploit her position for political reasons or she decided to trust a dishonest reporter who called her on the phone. If she was exploiting her position for political reasons, that’s bad, but trusting a reporter is almost as bad. Any judge should know that reporters in general are untrustworthy and reporters covering stories about Trump are particularly untrustworthy. Either way, she should resign her position.

    1. “Either Judge Rufe is a hardcore Never Trumper…..or she decided to trust a dishonest reporter…..”

      Why not both?

  8. Hold the phone for one damn minute.

    Stone was prosecuted by the DOJ. The DOJ reports to Trump. Trump did not insert himself until some of his underlings did the old bait and switch on the sentencing, hoping that it would not be disclosed until Stone was sentenced.

    Since the DOJ reports to Barr (and then to Trump), Trump was well within his authority to oversee his employees, including reviewing the sentence recommendation. All he did was to ask Barr to have the sentence reviewed.

    1. Right. All Trump did was “interfere” with the DOJ’s recommendation. IOW, the recommendation of the Executive branch, which he heads.
      The judge still gets to decide the sentence.

      1. Bored Lawyer, individual criminal prosecutions are not executive powers. They are sovereign powers. You have only to read the case titles to see that. No president has any power to tell a judge to imprison a particular person, or to deprive them of life. No president’s powers extend so far. Nothing in the constitution confers that power. The president’s powers with regard to justice extend to:

        1. The Take Care clause, applied generally;

        2. Overseeing the staffing of the Justice Department, and providing for its day-to-day needs and expenses;

        3. Making policy decisions which apply to enforcement issues generally, but not to the enforcement of specific cases;

        4. Exercising the pardon power in specific cases.

        Other than that, prosecution of individuals is all about the People v. the defendant. Or, as titled in federal cases, The United States of America v. the defendant. That means prosecutors mantled in sovereign power, and beyond the reach of administrative interference (the president is never the embodiment of U.S. sovereignty, he is always subject to it). It means a court system with a specific grant of sovereign power to hand down sentences according to law, and according to judges’ discretion.

        There is no role in any of that for Mr. Buttinsky President to say, “Prosecute this guy,” or, “Cut my buddy some slack on his sentencing recommendation.” The attempt to justify that kind of interference for Trump is against custom and long established usage. You will not find it justified explicitly in the constitution, nor implicitly in the historical record.

        1. That means prosecutors mantled in sovereign power, and beyond the reach of administrative interference (the president is never the embodiment of U.S. sovereignty, he is always subject to it).

          This is factually wrong. The POTUS can remove any federal prosecutor he wants, any time he wants. He has the authority to do so. Now whether he should is a totally different question.

          1. Commenter_XY, I insist that actions for which a president could legitimately be impeached and removed from office cannot be actions which he enjoys authority to do. If a president’s intervention in a prosecution impedes the sovereign power of the people to bring a criminal to justice, then that is impeachable. The president has an ability to intervene, but it is limited to the pardon power.

            1. You might prefer it that way, but there is nothing in the constitution or in the law to suggest that such is the way it is now.

              1. Matthew, your mistake—the Republicans’ mistake, and the nation’s mistake, actually—is to assume that everything to do with impeachment must relate to lawbreaking. That is nonsense. It was never meant that way.

                The principle reason to impeach and remove a president is if he does anything to impede, obstruct, or overturn the sovereignty of the American People. An excellent example of which, Trump did—by inviting a foreign power into an American election, to compete with the People in their exercise of sovereign power to choose a president.

                1. “is to assume that everything to do with impeachment must relate to lawbreaking.”

                  “The principle reason to impeach and remove a president is if he does anything to impede, obstruct, or overturn the sovereignty of the American People.”

                  1. That is not the argument the Democrats made for impeaching trump.

                  2. You have not even gotten close to a good case that the President intervening in a specific case via management of DOJ personnel constitutes “anything to impede, obstruct, or overturn the sovereignty of the American People.”

                  Your argument rests on mud and sand.

                  1. Matthew:

                    1. I couldn’t even understand the Democrats’ argument for impeaching Trump. That is why I said it was a mistake. My reasons for impeaching would have been many-fold, each relating to aspecific instance of interference with, or defiance of, the People’s sovereignty. There would have been at least 15 counts, and probably that many more. They would have included the events which the Democrats proved against Trump, but differently reasoned and supported.

                    2. On the premise that prosecution is a sovereign power, the case is proved by Trump’s intervention. If you deny that prosecution has been treated as a sovereign power since the founding (and before), then you are full of beans, and know no history.

                    My arguments are crystal clear, and rest on granite foundations. The only (foolish) counter-arguments which can even be mustered against them depend on denying that there is any right of the American People to defend their sovereignty from abuses by the president. That would be a tortured argument indeed.

            2. “Commenter_XY, I insist that actions for which a president could legitimately be impeached and removed from office cannot be actions which he enjoys authority to do.”

              You’re free to have any opinion you want about what legal actions could “legitimately” result in impeachment, buy why should we care? The House can impeach over literally anything, so your opinion that it would be “legitimate” is doing all the work here.

              The prosecutors work for the President, exercising his delegated authority. If he tells them to jump, their legal obligation is to ask “How high?” or resign their positions.

              1. Brett, yes, as everyone reading this board understands, you do not give a damn which political actions are legitimate, and which are not—so long as it is Trump doing the actions. That personal quirk is one I have not seen you explain, and I doubt you can.

                But here is a hint. If the president does something to encourage the intervention of a foreign power in an American election—elections being always the direct exercise of sovereign power by the People—then that is closely akin to treason. We all understand it is not treason, as defined, but it ought to be treated as similarly serious, and for the same reasons in each case.

                Where your reasoning fails utterly, is in discounting to zero (I doubt you are even conscious you do it) the notion that the sovereign power of the People to govern is to be protected and obeyed by the government, whether or not laws are broken in the breach of that duty. The founders said repeatedly and explicitly that American government could not be reduced to legalisms. They were correct in that, but you say again and again that American government is nothing but legalisms—at least with regard to Trump.

                For as long as you keep that up, you will remain a pitiful supporter of an authoritarian cult—with regard to Trump—which is pushing this nation toward a fearsome reckoning. I tell you that as someone who otherwise agrees with you on at least some of the grievances which I well understand underlie your complaints. None of those grievances can justify your recklessness in trying to justify Trump. Please try to think it over.

        2. Then how could President Obama implement “prosecutorial discretion” on an entire class of illegals?

          1. No. 3 in the list, Sam. Trump could do it too.

        3. You’ve seen a new word, sovereign, and you’re using it wrong.
          That means prosecutors mantled in sovereign power, and beyond the reach of administrative interference
          Prosecutors are NOT sovereign. Prosecutors absolutely answer to higher powers. The AG is superior. But he is not sovereign. He answers to the President, and serves at the Presidents pleasure. The President is not sovereign, he answers to the People. The People, yes. The people are sovereign.

          1. You are correct of course. Prosecutors are not sovereign. But unlike the president, prosecutors do personify the sovereign while they prosecute cases. That is the difference I am talking about.

            By the way, after thinking this over a bit, I recalled that the President does embody American sovereignty when he exercises the pardon power. So I was mistaken to say he never does.

            1. “after thinking it over a bit”

              Good idea, keep thinking.

        4. Blackman has discovered all sorts of powers hat Trump perhaps didn’t even know he had. He’s the greatest grantor of plenary indulgences since before the Reformation.

        5. Nice theories Lathrop, but you do know you aren’t relating any sort of actual case law from any court that matters. I realize this is the internet, but really claiming your personal opinion as some immutable legal principle is comical.

          Thanks for letting us know how things work in Lathropland, in the United States the President appoints the Attorney General and all the U.S. Attorney’s. And all of them serve at his pleasure. It’s an important principle of accountability. Every official in the U.S. Government needs to be accountable for their actions to the people, either directly through elections, or indirectly to an elected official. And that is why the President is in charge of the DOJ and ultimately responsible for all of its prosecutions.

          1. Kazinski, show me a statute, or any case law, which says that while a prosecutor is prosecuting an individual case, the prosecutor acts on behalf of the power of the president, and not on behalf of the power of the People of the United States.

        6. “You will not find it justified explicitly in the constitution”

          Article 2 of the US Constitution. Line 1. “The executive Power shall be vested in a President of the United States of America”

          And yes, prosecution decisions are part of executing and enforcing the laws, thus part of the executive branch, and the executive branch’s powers.

          ” nor implicitly in the historical record.”
          Here’s a good review. The US Federal government has a unitary executive. This is different from some states and countries which have a Plural Executive structure. Lots of nice judicial decisions, reviews from the early founders and more.
          https://en.wikipedia.org/wiki/Unitary_executive_theory

          1. Armchair, if you want actually to join the discussion, the point in contention is whether the prosecutorial power is an administrative power or a sovereign power. For several reasons the answer is pretty clearly that it is a sovereign power. History is one of those reasons, and there the evidence is overwhelming, and, because of that, hard to summarize.

            A more compact point is that nobody thinks there is any administrative power to deprive anyone of life or liberty. Prosecutors do that all the time, as collaborators in the use of the same sovereign power afforded judges. You might suppose that stretches things, and gives too much of the power which actually belongs to judges to the prosecutors. But reflect, a president has been legitimately threatened with impeachment for interfering with prosecutors, on charges of obstruction of justice (and no one doubts that had Nixon not resigned, that he would have been convicted). That could not happen if the only power prosecutors exercise is administrative power, which belongs to the president. It can happen instead because the power the prosecutors exercise is sovereign power. The president can transgress it, because it is not his own power to command.

            Fans of a theory of unitary power for the executive lose their way when they suppose that the unitary assertion makes the president all-powerful. A unitary executive is not in the slightest relieved of continuing obligation to the sovereign People, and is always subject to their constraint.

            Notably, that constraint includes not only the impeachment power, but also other instances of sovereign powers granted for exclusive exercise to other branches, including the congress, the judiciary, and even within the executive branch itself. The executive is indeed the unchallenged master of the executive powers. But crucially, that does not quite make him the unchallenged master of everything which the executive branch might do. Some of what the executive branch does is authorized to other executive branch personnel, by other powers separately granted to them by the People.

            The power to prosecute individual cases is one of those separate grants, as amply demonstrated by the titles given to those cases, such as, THE UNITED STATES OF AMERICA V. ROGER STONE, JR., etc. There is no natural or plausible reading of that title which equates, “THE UNITED STATES OF AMERICA,” to the president. The title can only mean that Stone is being prosecuted by the People of the United States. And indeed, in many of the states, that is exactly how such a case would be titled, as, “The People v., etc.” As an armchair lawyer I am sure you already knew that.

            1. Actually Lathrop, Armchair is exactly right, except in Lathropland.

              Read the DOJ’s prosector’s guide:
              “Under the federal criminal justice system, the prosecutor has wide latitude in determining when, whom, how, and even whether to prosecute for apparent violations of federal criminal law…. This discretion exists by virtue of the prosecutor’s status as a member of the Executive Branch, and the President’s responsibility under the Constitution to ensure that the laws of the United States be “faithfully executed.” U.S. Const. Art. II § 3. See Nader v. Saxbe, 497 F.2d 676, 679 n. 18 (D.C. Cir. 1974).”

              Please download it and mark it, because the next time you bring this up, I’ll refer you back to it.

              1. Kazinski, try to keep track. I am talking about the limits of the president’s power. It does no good when I say the president is limited here, to argue back that he is not limited over there. Previously, I enumerated 4 kinds of powers the president does have in relation to prosecutions. The example you cite above falls squarely into that bucket of enumerations, referring to two of the items on the list, namely the Take Care clause, and the discretion to set broad policies with regard to law enforcement.

                What those do not cover is any power to intervene during a specific prosecution, on behalf of, or against, any particular defendant. There may perhaps be a gray area, associated with the challenge of determining when policy ends, and a particular prosecution actually begins. My take would be that the limit is reached when prosecution decisions move beyond policy, and consider, however preliminarily, specific names. I do not believe the president has been empowered by the People to say, “So-and-So pisses me off, find something on him and prosecute him.” Do you say otherwise?

                But whatever the boundary may be, it was clearly long-passed in the case of Roger Stone, Jr., when Trumped intervened. That Trump intervened on behalf of leniency for a friend is no more excusable than if he had intervened on behalf of severity for an enemy. In either case, he ought to be impeachable for that conduct, for obstructing the sovereign power of the People to prosecute crimes. Do you say otherwise?

            2. Stephen,

              No. The question was whether or not criminal prosecutions were executive powers. It is an executive power. Keep the terminology straight.

              “individual criminal prosecutions are not executive powers.”
              “point in contention is whether the prosecutorial power is an administrative power or a sovereign power”

              The Constitution only grants the federal government three powers. Just three. The legislative power, granted to Congress. The executive power, vested with the president. The judicial power, vested with the supreme court and its inferior courts. That’s it. Just those three, Legislative, Executive, Judicial. If a power doesn’t fall under one of those 3, it is not granted to the US Federal Government. The 10th Amendment makes this explicitly clear. If there was a “Sovereign power” that wasn’t under one of those 3, that power would be reserved to the States and the People. It would not be a federal government power.

              Note the language used. The Judicial power goes to the supreme court AND its inferior courts. But the executive power JUST vests in the President. No inferior officials.

              Moreover past presidents have DIRECTLY ordered prosecutions by US Attorneys dropped, or have DIRECTLY ordered prosecutions. Both Washington and Jackson directly ordered specific cases dropped, because they thought the defendants were innocent. Jefferson directly ordered the arrest and prosecution of Aaron Burr. 99.9% of the time, Presidents delegate power of prosecutorial discretion to their subordinates. But they have the power to do it themselves. Constitutionally and Historically.

              That does not mean this power cannot be abused. Any granted power can be abused. But simply because a power can be abused does not mean it does not exist.

              1. Armchair, would you assert it is a government power to amend the Constitution? The government is empowered to do it, subject to ratification by the People. But everyone understands that writing a constitution is a sovereign power, not a government power. The fact is that the sovereign People have prescribed a method to accomplish amendment through the workings of government, but that means only that in a particular instance, carefully defined by the sovereign, a part of government has become an instrument of sovereign will, and exercises that power accordingly. It can never be taken to mean that government power, which is always subordinate to the sovereign People, is sufficient to re-write the People’s Constitution. Only sovereign power does that, in this instance working through government.

                Do you suppose that the vindication of individual rights is a government power, or a sovereign power? It would be a bizarre contradiction to assert the former, because that would empower government at the same time to violate individual rights, while insisting it is the sole enforcer of them. Everyone understands that the power to limit government and enforce rights is a sovereign power, which the sovereign accomplishes through the judicial branch of government. To suppose that enforcement of rights is a government power would be to suppose that no enforceable rights exist, and everyone is at the mercy of government.

                Do you think the power to impeach is a government power? Do you think that, despite the fact that the “sole power” clause strips impeachment of every resemblance to the normal checks and balances applied alike to other government powers? Despite that everyone understands that elections are exercises of sovereign power, and impeachments are in fact an alternative kind of election, by which a new president is chosen by the sovereign People, but using government means instead of more-accustomed ones? Just as with elections, and constitutional amendments, and defense of individual rights, and limitations on government, impeachment is a sovereign power, accomplished by the sovereign, choosing as its means the grant of a special and specific power to a part of government.

                Likewise with the power of individual prosecutions. You cannot prove by citations to extremely rare historical violations—violations condemned in retrospect by historians, by the way—that transgression proves the norm. Transgressions are the exceptions which prove the rule.

                Ben Franklin was asked what kind of government the founders had created, and famously answered, “A republic, if you can keep it.” That was a reference to the vital dependence of government on the continuous application of sovereign power—a presumption which many among the founders shared alike.

                It is perhaps unsurprising that lawyers today prefer to think otherwise, because it is simpler, and more legalistic, and more empowering for lawyers, to conflate American sovereignty with government. Thinking that way turns lawyers into the arbiters of sovereign power, and the masters of its application—or so they suppose.

                The founders thought otherwise. Based on historical experience, they concluded that no national government was possible without a continuously-active sovereign, wielding unlimited power, to control it. Founder James Wilson said that explicitly, and in doing so spoke at least for Madison, Franklin, Hamilton, and probably Washington. Many others seem to have agreed. No one seems to have contested the idea at the Federal convention.

                I am not an originalist, despite a habit of from time to time challenging so-called, “originalist,” arguments on the basis of historical errors. As a non-originalist, I do not feel myself under pressure to abide the will of the founders, or set up government just as they would have done. But try as I might—and as difficult a concept as is the notion of a sovereign of unlimited power in continuous control of a limited national government—I have not been able to find an argument that in that judgment the founders were unwise. On the other hand, arguments that sovereign power cannot act through government are not only unwise, but defy history, and would, if thought through, turn every understanding of how American government works into a maze of contradictions. So I think you are mistaken.

                1. “I think you are mistaken”
                  Based. On. What.?

                  You’ve been provided direct historical examples by the founders and presidents of our country and disregarded these as “transgressions”.

                  You have identified ZERO constitutional basis for this supposed “sovereign power” that is bestowed upon US District Attorneys, but that the President has zero role in. Zero. Basis. You have not identified a single law that gives them a “sovereign power”.

                  There is NO “sovereign power” in the Constitution. It. does. not. exist. Not a mention.

                  You have made up a theoretical power, then decided to bypass every channel and grant it just to a few inferior executive branch officials, in violation of every precept, law, and constitutional amendment on the books.

        7. And yet you ignore DACA?

          Or have you forgotten that Obama claimed “prosecutorial privilege”?

  9. “Velma White, an aide to the judge”

    Who knew? District Court Judges have Aides? Perhaps they are over staffed
    /sarc

  10. Hey, I remember Beer v. United States!
    Guest Post: The Great Haste and Less Milling of Beer v. United States
    By Andrew Dhuey
    https://patentlyo.com/patent/2010/08/guest-post-the-great-haste-and-less-milling-of-beer-v-united-states.html

  11. “Yesterday, the FJA sent an email to its member list-serve, which I received from an FJA member:”

    ‘Judges should keep quiet, especially with people who publish things, but my snitch is totally cool’

    The Volokh Conspiracy is little but partisan polemics these days, leavened with cowardly silence. This appears to be the best right-wing law professors can manage, and thank goodness for that.

    1. Could somebody PLEASE let the cat out?

      1. Losing the culture war to your betters seems to make you cranky, Mr. Wheat.

        Why not try ditching the backwardness and bigotry, perhaps even joining the prevailing side?

  12. Who knew that the Volokh Conspiracy was going to turn into Blackman’s personal pro-Trump platform? Another day, another over the top blanket endorsement of whatever the administration has done. Looking forward to his defense of the hiring of a college senior to run the PPO next.

    1. You don’t know?!?

      Ass-kissing and sycophancy are strong qualities highly admired by President Trump.

      I’m smelling federal-judge-nomination!

      1. That’s not a bad idea, I hear 100% of the Federal Judicial nominations over the next 5 years are being reserved for conservatives.

        1. What makes you think there are enough culture war casualties — poorly educated bigots, superstitious goobers, disaffected incels, and marginalized clingers — left in America to position Trump for another multi-cushion trick shot at the Electoral College.

          Has our electorate become more rural in four years? More religious? More white? More bigoted? More backward?

    2. Sort of a balance to Post and Somin, is he not?

  13. Only right wing judges are allowed to get political

    what a sad lap dog

  14. The President displays a classic tactic familiar to all who have survived kindergarten. First you taunt the mark and do things designed to press emotional buttons. Then if the men reacts, you or your shills get to jump at them for being immature and overreacting.

    You can’t lose. You get a free pass, no matter how outrageous what you do is . The mark gets micro-scrutinized and called out if they even slightly overreact.

    In this game, have a reputation as a bully is a positive advantage. Nobody expects you to behave properly, so nobody calls you on your behavior. Only the marks get socially ostracized, and they can get slammed for behavior that, objectively, is far less outrageous than the behavior you engage in to provoke them.

    1. That’s sort of a mischaractization of the bully pulpit, however I think you’re correct about the back and forth in general. You’d think by now his political enemies on the Left would be smart enough not to do silly things like this Judge, or rise to take his twitter bait, but they can’t help themselves.

      That said, it wasn’t back in the dark ages when Obama and allies would use similar tactic. He’d straw man the shit out of an opponent’s position in a public way where there was no press questions allowed. When opponents would clarify what they actually believed, proxies would attack as say accuse them of racism.

      Nothing new under the sun.

    2. I don’t think conservatives’ recent turn toward disruption and bullying is going to rescue them from defeat in the culture war.

      Lashing together an electoral coalition for stale intolerance, belligerent ignorance, old-time superstition, and general backwardness is going to become more difficult in America as our electorate continues to improve.

      The Trump era is like the opioid bender that makes street pills so popular in downscale America — it makes a loser feel better for a short time, but it does nothing to solve the user’s problems and, after the high fades, often intensifies the loser’s plight.

      1. You could be right.

        I know the high I’m on now can’t last, its only got 5 more years, but it feels so good now that i just can’t stop.

        1. Whether one year or five, it will seem fleeting and of doubtful worth when your betters are stomping most of your right-wing preferences and aspirations into cultural irrelevance.

          No free swings, clingers. The reckoning will be severe. Just think of everything you like, then imagine the opposite.

  15. I keep trying to find the direct order from Trump to reduce Stone’s sentencing recommendation, but haven’t found it yet.

    1. It doesn’t have to exist to get reported, you know.

  16. The group also filed a class action suit on behalf of all Federal Court Judges. The Court of Federal Claims ruled in favor of the class in Barker v. United States.

    What a horrifying combination of the two worst elements of our judicial system.

  17. So, a federal judge lied. What a shock!
    And then the secret organization of federal judges (judgefa?) lied about her lie.
    It just gets better all the time.

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