Monday Open Thread
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The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002
Supreme Court Rejects Red State Attempt to Sue Blue States Over Climate Suits
Justice Thomas dissents from the Court's continued unwillingness to hear bills of complaint filed under the Court's original jurisdiction.
This morning the Supreme Court denied a motion filed by several states to file a bill of complaint against other states for filing state-law-based lawsuits against fossil fuel energy companies. As has become tradition, Justice Thomas (joined by Justice Alito) dissented from the Court's refusal to grant the motion and consider the complaint on the merits.
In Alabama v. California, a red state coalition led by Alabama was seeking Supreme Court intervention to quash lawsuits filed by some blue state attorneys general against fossil fuel companies alleging their actions were actionable under state law. For reasons I've explained before (and address at the tail end of this draft symposium essay), the red state complaints are without merit, particularly in this posture. The idea that one state can sue another for merely filing a lawsuit in state court is quite outlandish. But it is nonetheless problematic that the Supreme Court is so dismissive of state filings seeking to invoke the Court's original jurisdiction. The better course would have been for the Court to grant the petition and then reject the claim on the merits.
SCOTUS to Consider Whether State Bans on "Conversion Therapy" Violate the First Amendment
A highly significant grant of certiorari for next term.
This morning, the Supreme Court granted certiorari in Chiles v. Salazar, a First Amendment challenge to a Colorado law that prohibits so-called "conversion therapy" for minors. At issue is whether this is a permissible regulation of professional conduct or a viewpoint-based restriction on speech (with potential religious liberty implications as well). This will almost certainly be one of the most watched (and potentially most controversial) cases of next term.
Here is the question presented from the petition for certiorari:
Kaley Chiles is a licensed counselor who helps people by talking with them. A practicing Christian, Chiles believes that people flourish when they live consistently with God's design, including their biological sex. Many of her clients seek her counsel precisely because they believe that their faith and their relationship with God establishes the foundation upon which to understand their identity and desires. But Colorado bans these consensual conversations based on the viewpoints they express. Its content- and viewpoint-based Counseling Restriction prohibits counseling conversations with minors that might encourage them to change their "sexual orientation or gender identity, including efforts to change behaviors or gender expressions," while allowing conversations that provide "[a]cceptance, support, and understanding for…identity exploration and development, including…[a]ssistance to a person undergoing gender transition." Colo. Rev. Stat. § 12-245-202(3.5).
The Tenth Circuit upheld this ban as a regulation of Chiles's conduct, not speech. In doing so, the court deepened a circuit split between the Eleventh and Third Circuits, which do not treat counseling conversations as conduct, and the Ninth Circuit, which does.
The question presented is:
Whether a law that censors certain conversations between counselors and their clients based on the viewpoints expressed regulates conduct or violates the Free Speech Clause.
Journal of Free Speech Law: "The Press Clause: Important, Remembered, and Equally Shared," by Eugene Volokh
This article, which responds to Floyd Abrams, Sandra Baron, Lee Levine, Jacob M. Schriner-Briggs & Isaac Barnes May's The Press Clause: The Forgotten First Amendment (and, in part, to Matthew Schafer's "The Press Clause": A Response to Professor Volokh), is here. The Introduction:
The Press Clause: The Forgotten First Amendment, a Report from the Floyd Abrams Institute for Freedom of Expression, is a powerful argument for a broader understanding of the Free Press Clause. Much of its analysis will, I expect, prove important and useful to judges, lawyers, legal academics, and citizens. But one of its core premises—that the Free Press Clause should be read as conferring extra rights on the institutional press, beyond those possessed by others who speak to the public—strikes me as mistaken.
The Court's current precedents take the view that the First Amendment secures an equal right of everyone to use mass communications technology. These precedents generally do not offer special First Amendment rights to "the press" in the sense of a particular set of businesses or institutions. Rather, they protect the freedom of all to use "the press" in the sense of the printing press and its modern technological descendants. And this is also the approach taken by the great bulk of authorities from before the Framing through the 1800s and 1900s to today.
Under this model, the Press Clause is far from "forgotten" or stripped of "independent meaning or impact": It secures the critically important right of all people to use the means of mass communications. By itself, the Speech Clause could easily have been understood as just protecting "speech" in the longstanding historical sense of face-to-face oral expression. Indeed, in the 1600s and 1700s many governments deliberately tried to constrain printing presses on the theory that mass communication via the printing press was more dangerous than face-to-face oral communication and thus needed to be specially suppressed.
The Press Clause made clear that the use of mass communication technology (originally just the printing press) should be as protected as the use of one's voice. This understanding has ensured that all mass communicators—institutional media as well as others—are constitutionally protected. To the extent that today courts often use "speech" as shorthand for speech and press (and petition), that is a product of the vigor of the Press Clause, not a sign that the Clause has been forgotten.
And, I argue below, the sources cited in the Report's originalist, traditionalist, precedential, and structural arguments do not support special First Amendment treatment for the institutional media. Instead, many of the sources the Report cites actually support the thesis that the right belongs to all who sought to communicate to the public.
You can also see my earlier Freedom for the Press as an Industry, or for the Press as a Technology?—From the Framing to Today, 160 U. Pa. L. Rev. 459 (2012); the Abrams et al. Report in some measure responds to that, and Prof. Schafer's article, true to its name, does as well.
NAH (No Abbreviations Here): Use Your Words
From Judge Daniel D. Domenico in Darren Patterson Christian Academy v. Roy (D. Colo. Feb. 24, 2025):
Last academic year Colorado implemented its new Universal Pre-school Program (the parties tend to refer to this as the "UPK" Program, but I try to use my words and will call it the "Program" or "Universal Preschool") ….
Quite the Child Custody Dispute
An excerpt from the >9000-word In the Interest of O.S. & U.S., decided Thursday by Texas Court of Appeals Justice Wade Birdwell, joined by Justices Elizabeth Kerr & Dabney Bassel:
Appellant A.H. (Mother) and Appellee I.S. (Father) divorced in 2014, and they were appointed as joint managing conservators of their two sons—O.S. (Owen) and U.S. (Uriah)—with Mother having the exclusive right to determine the children's primary residence. In the years that followed, Mother remarried, then after separating from her new spouse, she and the children began living with L.W.B. (Partner). {Although Partner self-identified as a female, multiple witnesses—including both Partner and Mother—testified that "legally, [Partner's] a male." We therefore use male pronouns for Partner to avoid confusion.}
Both Mother and Father petitioned to modify the custody order based on the changed circumstances, and the trial court—after hearing evidence of each parent's alleged misdeeds, of Owen's medical issues, of Uriah's educational arrangements, and of Partner's background and social-media posts—found that the children's best interest would be served by giving Father the exclusive right to decide their primary residence, their education, and their invasive medical procedures.
Mother challenges this modification …. Her primary complaint is that there was insufficient evidence to support the modification because no reasonable factfinder could have believed Father or taken Partner's social-media posts seriously. Therefore, Mother reasons, the modification must be attributable to the trial court's unconstitutional "punishment" of her based on Partner's transgender identification and exercise of his right of free speech. But such allegations merely seize on a tangential hot-button issue in an attempt to avoid the trial court's credibility determinations. The trial court heard conflicting evidence of two imperfect parents, and it acted within its discretion based on its assessment of the witnesses' credibility….
Today in Supreme Court History: March 10, 1919
3/10/1919: Debs v. United States decided.
Second Amendment Roundup: Court Seems Disposed to Rule for S&W and Against Mexico
The Court should settle the proximate-cause issue, not just aiding and abetting.
The March 4 oral argument in Smith & Wesson Brands v. Estados Unidos Mexicanos appeared to go very well for S&W and not well for Mexico. Mexico's lawsuit seeks to hold America's federally-licensed firearm industry responsible for the cartel violence that plagues Mexico and to prohibit the industry from doing ordinary business in compliance with the federal Gun Control Act.
Congress enacted the Protection of Lawful Commerce in Arms Act (PLCAA) in 2005 to prohibit lawsuits against the gun industry for crimes committed by third parties. Unable to persuade legislatures to enact prohibitionist measures, the anti-gun movement began bringing such litigation in the 1980s to try and destroy the industry via time and resource-consuming lawsuits and discovery. PLCAA sought to end such abuse of the legal system.
PLCAA requires courts to dismiss any "qualified civil liability action," which means an action brought against a licensed manufacturer or seller of a "qualified product" – a firearm or ammunition – "resulting from the criminal or unlawful misuse of a qualified product by the person or a third party." 15 U.S.C. § 7903(5)(A)(iii). That excludes an action in which a manufacturer or seller "knowingly violated a State or Federal statute applicable to the sale or marketing of the product, and the violation was a proximate cause of the harm for which relief is sought."
Mexico claims that S&W and other manufacturers violated Federal criminal statutes by aiding and abetting the unlawful sale of guns and ammo by dealers to straw purchasers, who unlawfully transferred the firearms to others, who then (also unlawfully) exported them without a license from the Department of Commerce to Mexico, who transferred them to the cartels, which used them to harm others, which proximately causes harm to Mexico.
From the oral argument, it appears likely that the Supreme Court will rule narrowly in the defendants' favor on aiding and abetting liability. There seemed to be at least six or seven votes for holding that Mexico's complaint does not allege sufficient facts to trigger aiding and abetting liability for the defendant firearms manufacturers whose products are allegedly diverted to Mexican cartels by rogue gun dealers.
During the argument, Justice Barrett had the following exchange with Noel Francisco, counsel for the manufacturers:
JUSTICE BARRETT: Is there any reason for us to reach the proximate cause question if we conclude for aiding and abetting that you win?
MR. FRANCISCO: If you rule for us on aiding and abetting, that will completely dispose of the case. The reason to also address proximate cause is because it's an extraordinarily important issue that I think applies in many different contexts, which is why there's such a broad range of amici in this case that go well beyond the firearms industry. So, while you could completely resolve it on aiding and abetting, I would … urge you to address proximate cause as well.
The firearms industry is facing a wave of lawsuits in which anti-gun activists are asking courts to hold the industry responsible for the criminal misuse of its products by third parties. E.g., Lowy v. Daniel Defense, et al., No. 24-1822 (4th Cir.) (lawsuit seeking to hold fifteen members of the firearms industry liable for school shooting in Washington, D.C.); Estados Unidos Mexicanos v. Diamondback Incorporate, No. 22-472 (D. Arizona) (lawsuit filed by Mexican government against firearms dealers); City of Rochester v. Smith & Wesson Brands, Inc., No. 23-6061 (W.D.N.Y.) (lawsuit filed by City of Rochester seeking to hold more than two dozen members of firearms industry liable for city's gun violence); Cluney v. Brownells, Inc., No. 24-207 (D. Maine) (lawsuit seeking to hold members of the firearms industry liable for domestic violence incident); Mitchell v. River City Firearms, Inc., No. 24-CI-000518 (Jefferson Circuit Court, Kentucky) (lawsuit seeking to hold members of firearms industry liable for mass shooting in Louisville).
Relatively few of these cases involve questions of aiding and abetting liability under federal law. Instead, typically the plaintiffs in these cases rely on a state consumer protection law or some other state statute rather than the federal aiding and abetting statute as the basis for alleging unlawful conduct by the industry. And many of these state laws are recently-enacted statutes by the usual suspect anti-gun states seeking to circumvent PLCAA's protections. The common denominator that unites these cases is not the alleged statutory violation but the theory of causation, under which the plaintiffs claim that criminal conduct by third parties is attributable to the sellers of firearms.
The First Circuit ruled in favor of Mexico on the proximate cause issue with the following bizarre analogy:
Imagine that a U.S. company sent a mercenary unit of combat troops to attack people in Mexico City. Such an attack would directly cause Mexico itself the expense of paying soldiers to defend the city. Proximate cause would be quite clear. So, too, here, where the defendants are alleged to have armed the attackers for their continuing assaults.
This departs sharply from decisions of most other courts that have confronted this issue and black letter principles of tort law. An opinion joined by then-Judge Alito, City of Philadelphia v. Beretta USA (3d Cir. 2002) held that the causal chain "from the manufacturer to Philadelphia streets" was too "long and tortuous." With limited exceptions, a third party's criminal conduct ordinarily breaks the causal chain for purposes of proximate cause.
If not corrected, the First Circuit's reasoning will be embraced by anti-gun activists in lawsuits going forward. This decision has already created disarray on the issue of proximate cause in the lower courts, and it is certain to metastasize and spread until the Supreme Court intervenes.
As Congress recognized when it passed the PLCAA, burdening the firearms industry with lawsuits of this sort inhibits the exercise of Second Amendment rights. It also did so to ensure a robust domestic firearms industry, which is important for America's military and police officers. This is an important issue that the Court ought to decide sooner rather than later.
The Court should take this opportunity to clarify that the standard for proximate cause under PLCAA is consistent with the standard for proximate cause that the Court has used for other federal statutes, including RICO. As Chief Justice Roberts wrote in Hemi Group, LLC v. City of New York (2010), if multiple steps stand in between the conduct and the harm, then the connection becomes too "remote," "contingent," and "indirect" to satisfy basic proximate cause. This standard requires a direct connection between the defendant's conduct and the plaintiff's injury. A causal chain with multiple steps – especially intervening steps that involve criminal conduct by third parties – will not suffice.
Questioning during the oral argument exhibited the utter implausibility of Mexico's case. Justice Thomas asked Mexico counsel Catherine Stetson whether ATF prosecuted or revoked the licenses of any dealers for the alleged straw sales with which the manufacturers connived. Ms. Stetson replied that ATF doesn't have the resources to monitor every dealer. Yet based on a newspaper article, Mexico had argued that Lone Wolf Trading Co. was the epitome of the "rogue" dealer. If true, ATF would have taken action. Yet Lone Wolf remains in business today.
Mexico argues that manufacturers are on notice of dealers who conduct straw sales and that they continue to supply such dealers, which is the proximate cause of harm to Mexico. As Ms. Stetson claimed, "Trace requests from ATF and other agencies alert defendants that guns they sell to specific distributors and dealers are being recovered at crime scenes." That expressed utter ignorance of how trace requests work. A trace request begins with the manufacturer, whose name and serial number are engraved on a firearm. A manufacturer like S&W would inform ATF of the distributer to which it transferred the firearm. S&W would have no knowledge of which dealers the distributer transferred the firearm to, not to mention the reason for the trace request.
As Justices Jackson, Kagan, and Barrett all pointed out, Mexico didn't sue or even identify any specific dealers who conducted straw sales and were in the chain of proximate cause of harm to Mexico.
Not to mention that a trace request does not mean that a firearm was "recovered at a crime scene." Given Mexico's stringent firearm prohibitions, firearms are regularly seized from ordinary citizens whose "papers are not in order." Moreover, Congress has declared by law that "Law enforcement agencies may request firearms traces for any reason, and those reasons are not necessarily reported to the Federal Government. Not all firearms used in crime are traced and not all firearms traced are used in crime."
Perhaps the most ridiculous claim to show proximate cause was that the manufacturers design firearms to appeal to the cartels. As Chief Justice Roberts characterized the claim, "it [the firearm] looks like a military weapon and it has an American flag" or it "has Zapata's quote about better to die on your feet than live on your knees." Such things "are not illegal in any way" and appeal to "people who want the experience of shooting a particular type of gun because they find it more enjoyable than using a BB gun."
Ms. Stetson pushed back, claiming that the Colt "Emiliano Zapata 1911" pistol "target[ed] the Mexican market, including the cartels." In fact, Zapata was a Mexican hero who fought against successive dictatorships, and Colt's pistol with intricate engravings is something even a Gringo would be proud to own. And that's Mexico's case for Colt's marketing being the proximate cause of cartel violence?
Several Justices commented on how Mexico's version of proximate cause could destroy any number of industries. If Budweiser is on notice that extraordinary sales of beer take place in a college town, that is the proximate cause of underage drinking and the damage it causes. Makers of baseball bats and knives are aware that some of their products will be used in assaults and murders for which they are thus responsible. Those are more reasons why the Court should resolve the proximate-cause issue in this case.
Justice Jackson in particular elaborated at length that in enacting PLCAA, "Congress [was] protecting its own prerogative to be the one to regulate this industry, … and the statute itself says that … we're worried that tort suits are an attempt to use the judicial branch to circumvent the legislative branch of government." She referred to PLCAA's term "qualified civil liability action" as meaning "you can't bring in court … a civil action resulting from the criminal or unlawful misuse of a qualified product by the person of a third party."
At bottom, even if the Supreme Court could resolve this case by finding that Mexico has not stated a claim for aiding-and-abetting liability, it should also go further and find that its allegations do not suffice to establish proximate cause. That will facilitate the resolution of numerous other cases under PLCAA, which the Court will otherwise have to resolve in the future. It will also discourage frivolous suits against American industry in general based on an overly-expansive version of proximate cause.
For more on the case, see my post from 10/22/24. For background, see my 2004 Chapman Law Review article from when PLCAA was pending in Congress.
Update: As discussed above, Mexico claims that Colt engraved pistols with the name of the freedom-fighter "Zapata" in order to appeal to the cartels. The irony here, as I just learned, is that Colt did not produce the Zapata 1911s. While Colt did manufacture the pistols, they were sold to a distributor who sold them to an engraver, who engraved them with the various Mexican themes, and then sold them through dealers. Talk about "remoteness"!
"500M Europeans Are Begging 300M Americans for Protection from 140M Russians Who Have Been Unable to Overcome 50M Ukrainians for Three Years"
A nice line from Polish Prime Minister Donald Tusk (Politico.Eu). I have no well-informed view on the proper role of the U.S. in the defense of Europe (though my intuitions are in favor of strong U.S. support for NATO, I can't speak with confidence about the subject). But I thought this was a well-put call for action, from a country that is estimated to have spent 4.12% of its GDP on defense in 2024, compared to a 2.02% average for European NATO members and Canada, and 3.38% for the U.S. "The Polish military is now about 200,000, which makes it the third-largest in NATO after the U.S. and Turkey and the largest among the alliance's EU members."
Tusk added,
By the end of the year, we want to have a model ready so that every adult male in Poland is trained for war, and so that this reserve is adequate for possible threats…. Every healthy man should want to train to be able to defend the homeland in case of need. We will prepare it in such a way that it will not be a burden on people.
By the way, the only other NATO member that spent a higher fraction of its GDP than the U.S. is Estonia, at 3.43%. Latvia and Lithuania are also high, at 3.15% and 2.85%, well above everyone else except Greece at 3.08%. The one behind Lithuania (though closer to the middle of the pack) is Finland, at 2.41%. See a pattern?
Today in Supreme Court History: March 9, 1937
3/9/1937: President Roosevelt delivers a fireside chat on his Court-packing plan.
"You think it's time to take a seat on the bench? Lol"
"AUSA-1 hoped to convict Mayor Adams as the last notch in his belt before he took a 'seat on the bench.'"
On Friday, the Department of Justice urged Judge Ho (SDNY) to dismiss the indictment against Eric Adams without prejudice. DOJ has apparently submitted under seal a series of communications to and from unnamed former DOJ officials. Let's just say these emails and letters do not put the officials in the best light. Here, I want to focus on one exchange in particular:
Similarly, prior to making the public claim that only a "coward" or "fool" would sign the Motion, a recently-resigned AUSA from the SDNY prosecution team (AUSA-1) wrote the following regarding the letter that SDNY filed with the Court on January 22, 2025: "[U.S. Attorney-1] obviously has political ambitions, and I think suggesting we doubt that just costs us credibility." . . .
A separate exchange of text messages beginning on November 8, 2024 illustrates why AUSA-1 was later interested in using public filings to send messages to President Trump. Just days after the 2024 election, in response to a text message asking if it was "time" for AUSA-1 to "take a seat on the bench," AUSA-1 responded: "Got to convict Adams before I can think about anything else." Ex. D. . . .
On November 8, 2024, AUSA-1 received a message with the following question: "You think it's time to take a seat on the bench? Lol." Ex. D. AUSA-1's response included, "Got to convict Adams before I can think about anything else." Id. . . .
It is thus apparent from the context that, just as AUSA-1 hoped to convict Mayor Adams as the last notch in his belt before he took a "seat on the bench,"
U.S. Attorney 1 is Damien Williams. AUSA-1 is a Hagan Scotten, whom I wrote about here. I don't think I had ever heard of Scotten before, but he was apparently talked about as as nominee for the Second Circuit.
It is true that individuals see their work in government service as a potential audition for a judicial appointment. Was the Eric Adams prosecution an audition? Or was the resignation the audition? It is impossible to escape the audition trap, right?
"The Court Shouldn't Bruen-ize the Free Exercise Clause"
Some thoughts from Michael McConnell, Douglas Laycock, Stephanie Barclay, and Mark Storslee.
I'm delighted to be able to pass along this analysis from Profs. Michael McConnell, Douglas Laycock, Stephanie Barclay, and Mark Storslee. (McConnell and Laycock are quite likely the two most prominent Religion Clauses scholars in the nation; they and Barclay were also cited repeatedly in Justice Alito's concurrence in Fulton v. City of Philadelphia (2021).) The Court is poised to overrule Employment Division v. Smith, and return to the Sherbert/Yoder regime, under which religious objectors have a presumptive constitutional right to exemptions from generally applicable laws. It's therefore tremendously important to figure out what the rules are for when that presumption is rebutted; their reasoning speaks directly to that question:
With opening briefs filed this week in Mahmoud v. Taylor, the Supreme Court will have another opportunity to consider the appropriate constitutional standard for evaluating free exercise claims under the First Amendment. In Mahmoud, the Court will decide whether public schools may compel students to participate in instruction on gender and sexuality that violates their parents' religious convictions.
Some scholars and several prominent appellate court judges have recently argued that the Supreme Court should abandon strict scrutiny and Bruen-ize the First Amendment—i.e., incorporate the Second Amendment constitutional doctrine from New York State Rifle & Pistol Ass'n v. Bruen into various parts of the First Amendment (though these arguments have largely related to the First Amendment's speech protections).
Although we differ in some ways with respect our approach to constitutional interpretation, we all broadly support looking to the history surrounding ratification as a primary method of developing constitutional doctrines. But we have serious concerns about the Court adopting a Bruen-type historical analogue approach in the free exercise context. In our view, doing so would create a test that would be unworkable, theoretically dubious, and—ironically—inconsistent with the best historical understanding of the meaning of the Free Exercise Clause.
Freedom of Speech and Campus Antisemitism
People love to accuse me of hypocrisy on campus speech and antisemitism, given my longstanding support for speech over conflicting antidiscrimination laws, but my position remains consistent.
There are three separate but related issues with regard to campus antisemitism and speech (note that vandalism, threats, disruptive behavior etc., aren't in the ambit of free speech, nor is enforcing content-neutral reasonable time, place, and manner restrictions on protests an infringement of freedom of speech).
Q. Should speech (even grossly offensive speech) be protected vs. claims that speech, as such, creates a hostile environment, including vs. Jews?
A. Yes. Universities should not be held liable for permitting even grossly offensive speech.
Q. Should universities be held liable for discrimination for treating Jews differently when they complain of a hostile environment than how they treat other groups?
A. Yes, because that's a content-neutral question of equal treatment as required by civil rights law, not suppressing speech. Whatever policies a university has, formal or informal, they can't be different for Jews than for everyone else.
Q. Third, is the proper solution to avoid the latter problem to protect speech equally or to suppress speech equally?
A. Protect speech equally.
Downplaying Antisemitism at Columbia
The Trump Administration has announced that it's suspending $400 million in federal grants to Columbia University in response to Columbia's failure to protect Jewish students from harassment and discrimination as required by federal law. I think Columbia richly deserves this, but I don't know whether this is lawful, or whether federal law requires hoops to be jumped through before such sanctions can be levied.
In this post, though, I want to respond to some of the left who have seen denying that Columbia has an antisemitism problem to begin with, despite my pointing to a report from the antisemitism task force at Columbia which, after it authors interviewed hundreds of Jewish Columbia students, found that antisemitism was "severe and pervasive."
It's remarkable the extent to which people on the left will wax eloquent about the lived experiences of this or that group, and how we should never question their interpretation of such experiences, but somehow when hundreds of Jewish students at Columbia report experiencing an intensely hostile environment, so much so that some left the dorms to live at home, some transferred, etc., suddenly the same folks will be not just skeptical, but entirely dismissive.
It's also remarkable the extent to which some folks on the left will insist that we understand current controversies over racism, sexism, Islamaphobia, homophobia, and so forth in light of the history of those isms and phobias, and be sensitive to the fact that we aren't starting afresh as if these isms and phobias were not strongly embedded in societal consciousness.
Meanwhile, we are supposed to interpret students openly supporting a genocidal antisemitic terrorist group on college campuses as if it's a natural reaction to Israel's (nonexistent) "genocide" in Gaza, without noting the long history of state-sponsored and popular antisemitism in countries from which many of the protestors originate, without noting the fact that the far left was successfully propagandized with Soviet antisemitism for decades, and without noticing the long tail of Nazi-style conspiratorial antisemitism that is reflected in much of the rhetoric one sees on campus.
In short, when it comes to Jews and Western Christian and Islamic civilization we are apparently supposed to be assuming we are working from an entirely blank slate, whereas with every other minority group we must be exquisitely sensitive to the burdens of history.
Today in Supreme Court History: March 8, 1841
3/8/1841: Justice Oliver Wendell Holmes's birthday.
Friday Open Thread
What's on your mind?
Has There Never Been A Deferred Prosecution Agreement For A Public Official?
"That prospect explains the absence of deferred prosecution agreements involving public officials."
Since Judge Ho appointed Paul Clement as an amicus in the Eric Adams case, I have been trying to find an answer to a question: has there ever been a deferred prosecution agreement for a public official. The United States routinely enters into civil consent decrees with public officials. And the United States enters into deferred prosecution agreements with government contractors. At least in the case of Boeing, the government was likely motivated by a concern that barring the aerospace giant would impact American interests.
But I've asked around, and could not find an answer to my question about DPAs for public officials.
Clement's brief makes this assertion:
There is an inherent risk that once an indictment has been procured, the prospect of re-indictment could create the appearance, if not the reality, that the actions of a public official are being driven by concerns about staying in the good graces of the federal executive, rather than the best interests of his constituents. That prospect explains the absence of deferred prosecution agreements involving public officials.
Clement does not offer a citation. I realize it is hard to prove a negative here. How can you show that something has never happened? What if the government has used a DPA for a public official? And though I take officer stuff carefully, Clement does not distinguish between elected and appointed officials. What about civil servants? Has there really never been any person in government who received a DPA from the federal government? And if the answer is yes, then why would Mayor Adams be different.
I often tell my students to never say the word never. If someone finds a single instance where something happened, your argument is shot.
Let's see what turns up.
Paul Clement Recommends Dismissing the Eric Adams Charges—But With Prejudice
A new development in the Eric Adams case.
Paul Clement has filed his court-appointed friend-of-the-court brief in the Eric Adams case, recommending that Judge Ho dismiss the case—but with prejudice, not without prejudice. From the brief:
The government's own recent filings reflect a belief that this prosecution was initiated in bad faith. See Dkt.122 ¶5; see also Dkts.125-1, 125-2. Other information that has become public casts doubt on that claim and suggests the decision to dismiss the indictment was undertaken in bad faith. See, e.g., Dkts.150-3, 150-8. It is almost certainly beyond the judicial ken to definitively resolve that intramural dispute among executive-branch prosecutors. It is also unnecessary. Under either view, there is little justification for preserving the possibility of re-indictment by dismissing without prejudice. While the "salient issue" for the court concerns the decision to terminate, not initiate, the prosecution, Rinaldi, 434 U.S. at 30, if political considerations improperly influenced the initial decision to seek the defendant's indictment, then dismissal with prejudice would definitively eliminate that taint. And if improper considerations tainted the decision to seek dismissal, then there is a fortiori every reason to protect the defendant from the threat of re-indictment.
Three additional, closely related factors support dismissal with prejudice as the appropriate remedy here. First, the fact that this case involves a currently serving elected official raises distinct concerns that are eliminated by a dismissal with prejudice but exacerbated by a without-prejudice dismissal. Prosecutions of incumbent public officials are among the Justice Department's most sensitive undertakings and raise inevitable suspicions of political motivations or improper leverage over the official's discharge of his duties to constituents. Even the appearance that the prospect of re-indictment would cause public officials to be more attendant to the executive branch than to constituents is deeply troubling and raises serious accountability concerns. A dismissal without prejudice fuels those concerns by expressly preserving the possibility of re-indictment.
Second, dismissal with prejudice more closely resembles the options the executive can achieve unilaterally, while dismissal without prejudice leaves the accused subject to re-indictment at the executive's discretion. Nothing a court can do under Rule 48 can prevent the President from issuing a pardon that ends the prosecution and typically precludes further jeopardy for the offense (and even a conditional pardon must make any conditions explicit). Similarly, the unreviewable executive decision to refrain from prosecution leaves the individual's liberty untouched. Dismissal without prejudice, by contrast, leaves a once-indicted defendant in a uniquely vulnerable position.
Third, dismissal with prejudice best accords with the principal office of Rule 48(a) in particular and the separations of powers more generally—namely, the promotion of individual liberty. The prospect of the court ordering the prosecution to proceed runs directly counter to the court's usual liberty-preserving role in a criminal trial. Insisting on dismissal with prejudice, by contrast, preserves individual liberty while eliminating the problematic incentives and appearance issues occasioned by a without-prejudice dismissal of an incumbent public official.
