Eugene Volokh's Blog, page 164

[Josh Blackman] Federal Prosecutors Routinely Use Carrots and Sticks to "Induce" Defendants to "Support [DOJ] Policy Objectives"

[Another problematic point raised in a resignation letter.]

The Adams Affair continues. Yesterday, I wrote about Hagan Scotten's resignation letter. Here, I want to focus on another sentence Scotten wrote that does not quite make the point he intended:

No system of ordered liberty can allow the Government to use the carrot of dismissing charges, or the stick of threatening to bring them again, to induce an elected official to support its policy objectives.

The phrase "ordered liberty" was most famously used by Justice Cardozo in Palko v. Connecticut (1937). Provisions of the Bill of Rights were incorporated if they were "implicit in the concept of ordered liberty." Not exactly some sort of clear, or formalist test. More like an "I know it when I see it approach" to liberty.

What comes after is far more important. Scotten would have you believe that the federal government never uses the "carrot of dismissing charges, or the stick of threatening to bring them again, to induce [a defendant] to support its policy objectives." Notice how I changed "elected official" to "defendant." If you make that subtle change, you realize how problematic that statement is.

The Department of Justice routinely uses carrots and sticks to make defendants support DOJ policy objectives. More than 90% of federal criminal cases end up in plea bargains. Federal prosecutors may as well be transactional lawyers. Usually, the deals take a similar form: plead guilty, waive appeal rights, and the government will recommend a reduced sentence, or perhaps no sentence at all. And the parameters of plea bargains are approved at high levels of leadership. For example, the Obama and Biden Administration offered far more lenient plea deals for drug offenses, while the Trump Administration offered more severe plea deals for drug offenses. Those are DOJ policies, based on some assessment of the harmfulness of the offenses.  

In many cases, a plea deal is conditioned on a defendant doing more than pleading guilty. The United States can condition a plea deal on a defendant testifying against a co-defendant. DOJ can condition a plea deal on a defendant providing information to some government entity, in open court, before a grand jury, or in some other confidential form. The federal government can often grant individuals immunity if they go "undercover" as a confidential informant to obtain information about other crimes. Such covert work can place the defendant at risk of death, but the government deems that sacrifice justified in exchange for dropping the prosecution. Moreover, if a defendant refuses to cooperate, the government routinely threatens to bring additional charges, and seek more jail time. In all of these cases, the government uses the carrot of dismissal or the stick of further indictment to promote the ends that the prosecutor's office deems appropriate. When a U.S. Attorney approves a deal in exchange for cooperation, the government is using a carrot to promote its policy objectives.

Now, back to the brackets. I swapped "elected official" for "defendant." Should it matter if the cooperation is provided by an elected official or a private citizen? Does Scotten really think it is the case that DOJ has never "induce[d] an elected official to support its policy objectives"?

Consider the case of United State v. Richmond from the nearby Eastern District of New York. 550 F. Supp. 605 (E.D.N.Y. 1982). In that case, the plea agreement required the defendant to resign from Congress and not run for re-election. Would you call that using a "carrot" to "induce an elected official to support [the government's] policy objectives"? I sure should. You can couch the plea deal in some sort of sense of the public good, but at bottom, the government used its coercive power over prosecution to nudge the defendant to relinquish his ability to hold current and future public office. Were the prosecutors who proposed that deal "foolish"? No, they were doing what prosecutors do all the time. Were these prosecutors scrambling our system of "ordered liberty"? Of course not. Brooklyn is a wild place, but not that wild.

Prosecutors often have something of a god complex, in which they think they always have the higher moral authority, and can use the power of prosecution to accomplish those goals. This risk is particularly acute in so-called public integrity cases. The line between a politician engaging in fraud and a politician servicing constituents is often in the eye of the beholder. Look at the number of public integrity cases that the Supreme Court unanimously vacated.

Was the plea deal valid in Richmond? No. Chief Judge Jack Weinstein (yes, that Jack Weinstein) ruled that the "plea agreement pertaining to resignation from Congress and withdrawal as a candidate for re-election are void." Weinstein added, "[j]ust as Congress and the states are prohibited from interfering with the choice of the people for congressional office, federal prosecutors may not, directly or indirectly, subvert the people's choice or deny them the opportunity to vote for any candidate." Weinstein was right. But that lesson was not learned. To this day, DOJ guidelines state that disqualification is a "appropriate" policy goal:

[r]esignation from office, withdrawal from candidacy for elective office, and forbearance from seeking or holding future public offices, remain appropriate and desirable objectives in plea negotiations with public officials who are charged with federal offenses that focus on abuse of the office(s) involved.

It's right there in black-and-white! Is this provision inconsistent with ordered liberty?

Indeed, people urged the prosecutors to condition a plea deal for Trump on not running for re-election. Seth Barrett Tillman wrote about such proposed plea bargains here.

For its part, the Justice Department has previously described Richmond as "incorrectly decided" and "particularly troublesome" in that it "purports to limit, without adequate legal justification, the latitude of federal prosecutors to reach voluntary settlements with defendants in significant corruption cases which equitably address and protect the important public interests that such prosecutions normally entail." But the Justice Department's current guidance is somewhat more equivocal, in that it cites Powell and Richmond for the assertion that "withdrawal or forbearance with respect to Congressional or federal judicial office may not be imposed involuntarily against the will of the [defendant] judge or Member of Congress involved because of the separation of powers doctrine" without further explanation. (Given that the context of the Justice Department's discussion is a plea bargain, the current guidance's use of "involuntary" is more than somewhat difficult to fathom.) More importantly, what exactly this language might mean for a potential Section 2071 plea agreement with Trump is not pellucidly clear, but it suggests that even the Justice Department would acknowledge that the logic of Richmond might pose some complications.

But there were only crickets in response to these proposals--proving again that much of the outrage about Trump is performative. 

Bove's policy is the mirror image of what the government tried to do in Richmond. Bove is deferring the prosecution precisely to allow the people to choose to vote for Adams. And while Adams remains in office, his deferred prosecution is contingent on providing material support to the government. If support is not provided, then the deferred prosecution is off the table. This is the sort of thing DOJ does all the time. There is not, as Danielle Sassoon implied, a "quid pro quo." In 2020, Tillman and I explained that there is no bribery if a public act is exchanged for another public act: the federal government is deferring a prosecution and a government official is providing cooperation with the federal government. Without question, Bove and Adams have mixed motives, but public officials always act with dueling motivations. That dynamic is not enough to transform a government arrangement into a bribe. 

Indeed, the fact that Sassoon even alleged there was a "quid pro quo" is yet more evidence of a federal prosecutor trying to criminalize politics. When you only have a hammer, every problem looks like a nail. When you are a federal prosecutor, every questionable act by a government official can be transformed to an indictable offense. The lawfare must end somewhere. 

The outrage to Bove's letter, I think, stems from the fact that the recommendation came not from the Sovereign District, but from Main Justice. Moreover, the outrage is due to the fact that the defendant is not some foot soldier who is being asked to snitch on the kingpin. Rather, the defendant is the apex elected official in New York City, who is being asked to assist the federal government. Adams can provide orders far more assistance than the typical defendant could, which may justify the sort of unusual deferred prosecution that was offered. I see a difference only in degree, not in kind. Adams's making this deal is public for all to see, and the voters of New York can (and will) judge him accordingly.

Trump makes his deals explicit and publicly known. He truly saw nothing wrong with his "perfect" Ukraine phone call. He was happy to release the transcript. Virtually all other government officials make these sorts of deal, but are far more opaque. I, for one, prefer transparency. The Department of Justice has determined that prosecutions under the Foreign Corrupt Practices Act, as well as for public integrity offense, may cause more costs than benefits. And everyone is on notice of those policies as well.

The post Federal Prosecutors Routinely Use Carrots and Sticks to "Induce" Defendants to "Support [DOJ] Policy Objectives" appeared first on Reason.com.

[Josh Blackman] Federal Prosecutors Routinely Uses Carrots and Sticks to "Induce" Defendants to "Support [DOJ] Policy Objectives"

[Another problematic point raised in a resignation letter.]

The Adams Affair continues. Yesterday, I wrote about Hagan Scotten's resignation letter. Here, I want to focus on another sentence Scotten wrote that does not quite make the point he intended:

No system of ordered liberty can allow the Government to use the carrot of dismissing charges, or the stick of threatening to bring them again, to induce an elected official to support its policy objectives.

The phrase "ordered liberty" was most famously used by Justice Cardozo in Palko v. Connecticut (1937). Provisions of the Bill of Rights were incorporated if they were "implicit in the concept of ordered liberty." Not exactly some sort of clear, or formalist test. More like an "I know it when I see it approach" to liberty.

What comes after is far more important. Scotten would have you believe that the federal government never uses the "carrot of dismissing charges, or the stick of threatening to bring them again, to induce [a defendant] to support its policy objectives." Notice how I changed "elected official" to "defendant." If you make that subtle change, you realize how problematic that statement is.

The Department of Justice routinely uses carrots and sticks to make defendants support DOJ policy objectives. More than 90% of federal criminal cases end up in plea bargains. Federal prosecutors may as well be transactional lawyers. Usually, the deals take a similar form: plead guilty, waive appeal rights, and the government will recommend a reduced sentence, or perhaps no sentence at all. And the parameters of plea bargains are approved at high levels of leadership. For example, the Obama and Biden Administration offered far more lenient plea deals for drug offenses, while the Trump Administration offered more severe plea deals for drug offenses. Those are DOJ policies, based on some assessment of the harmfulness of the offenses.  

In many cases, a plea deal is conditioned on a defendant doing more than pleading guilty. The United States can condition a plea deal on a defendant testifying against a co-defendant. DOJ can condition a plea deal on a defendant providing information to some government entity, in open court, before a grand jury, or in some other confidential form. The federal government can often grant individuals immunity if they go "undercover" as a confidential informant to obtain information about other crimes. Such covert work can place the defendant at risk of death, but the government deems that sacrifice justified in exchange for dropping the prosecution. Moreover, if a defendant refuses to cooperate, the government routinely threatens to bring additional charges, and seek more jail time. In all of these cases, the government uses the carrot of dismissal or the stick of further indictment to promote the ends that the prosecutor's office deems appropriate. When a U.S. Attorney approves a deal in exchange for cooperation, the government is using a carrot to promote its policy objectives.

Now, back to the brackets. I swapped "elected official" for "defendant." Should it matter if the cooperation is provided by an elected official or a private citizen? Does Scotten really think it is the case that DOJ has never "induce[d] an elected official to support its policy objectives"?

Consider the case of United State v. Richmond from the nearby Eastern District of New York. 550 F. Supp. 605 (E.D.N.Y. 1982). In that case, the plea agreement required the defendant to resign from Congress and not run for re-election. Would you call that using a "carrot" to "induce an elected official to support [the government's] policy objectives"? I sure should. You can couch the plea deal in some sort of sense of the public good, but at bottom, the government used its coercive power over prosecution to nudge the defendant to relinquish his ability to hold current and future public office. Were the prosecutors who proposed that deal "foolish"? No, they were doing what prosecutors do all the time. Were these prosecutors scrambling our system of "ordered liberty"? Of course not. Brooklyn is a wild place, but not that wild.

Prosecutors often have something of a god complex, in which they think they always have the higher moral authority, and can use the power of prosecution to accomplish those goals. This risk is particularly acute in so-called public integrity cases. The line between a politician engaging in fraud and a politician servicing constituents is often in the eye of the beholder. Look at the number of public integrity cases that the Supreme Court unanimously vacated.

Was the plea deal valid in Richmond? No. Chief Judge Jack Weinstein (yes, that Jack Weinstein) ruled that the "plea agreement pertaining to resignation from Congress and withdrawal as a candidate for re-election are void." Weinstein added, "[j]ust as Congress and the states are prohibited from interfering with the choice of the people for congressional office, federal prosecutors may not, directly or indirectly, subvert the people's choice or deny them the opportunity to vote for any candidate." Weinstein was right. But that lesson was not learned. To this day, DOJ guidelines state that disqualification is a "appropriate" policy goal:

[r]esignation from office, withdrawal from candidacy for elective office, and forbearance from seeking or holding future public offices, remain appropriate and desirable objectives in plea negotiations with public officials who are charged with federal offenses that focus on abuse of the office(s) involved.

It's right there in black-and-white! Is this provision inconsistent with ordered liberty?

Indeed, people urged the prosecutors to condition a plea deal for Trump on not running for re-election. Seth Barrett Tillman wrote about such proposed plea bargains here.

For its part, the Justice Department has previously described Richmond as "incorrectly decided" and "particularly troublesome" in that it "purports to limit, without adequate legal justification, the latitude of federal prosecutors to reach voluntary settlements with defendants in significant corruption cases which equitably address and protect the important public interests that such prosecutions normally entail." But the Justice Department's current guidance is somewhat more equivocal, in that it cites Powell and Richmond for the assertion that "withdrawal or forbearance with respect to Congressional or federal judicial office may not be imposed involuntarily against the will of the [defendant] judge or Member of Congress involved because of the separation of powers doctrine" without further explanation. (Given that the context of the Justice Department's discussion is a plea bargain, the current guidance's use of "involuntary" is more than somewhat difficult to fathom.) More importantly, what exactly this language might mean for a potential Section 2071 plea agreement with Trump is not pellucidly clear, but it suggests that even the Justice Department would acknowledge that the logic of Richmond might pose some complications.

But there were only crickets in response to these proposals--proving again that much of the outrage about Trump is performative. 

Bove's policy is the mirror image of what the government tried to do in Richmond. Bove is deferring the prosecution precisely to allow the people to choose to vote for Adams. And while Adams remains in office, his deferred prosecution is contingent on providing material support to the government. If support is not provided, then the deferred prosecution is off the table. This is the sort of thing DOJ does all the time. There is not, as Danielle Sassoon implied, a "quid pro quo." In 2020, Tillman and I explained that there is no bribery if a public act is exchanged for another public act: the federal government is deferring a prosecution and a government official is providing cooperation with the federal government. Without question, Bove and Adams have mixed motives, but public officials always act with dueling motivations. That dynamic is not enough to transform a government arrangement into a bribe. 

Indeed, the fact that Sassoon even alleged there was a "quid pro quo" is yet more evidence of a federal prosecutor trying to criminalize politics. When you only have a hammer, every problem looks like a nail. When you are a federal prosecutor, every questionable act by a government official can be transformed to an indictable offense. The lawfare must end somewhere. 

The outrage to Bove's letter, I think, stems from the fact that the recommendation came not from the Sovereign District, but from Main Justice. Moreover, the outrage is due to the fact that the defendant is not some foot soldier who is being asked to snitch on the kingpin. Rather, the defendant is the apex elected official in New York City, who is being asked to assist the federal government. Adams can provide orders far more assistance than the typical defendant could, which may justify the sort of unusual deferred prosecution that was offered. I see a difference only in degree, not in kind. Adams's making this deal is public for all to see, and the voters of New York can (and will) judge him accordingly.

Trump makes his deals explicit and publicly known. He truly saw nothing wrong with his "perfect" Ukraine phone call. He was happy to release the transcript. Virtually all other government officials make these sorts of deal, but are far more opaque. I, for one, prefer transparency. The Department of Justice has determined that prosecutions under the Foreign Corrupt Practices Act, as well as for public integrity offense, may cause more costs than benefits. And everyone is on notice of those policies as well.

The post Federal Prosecutors Routinely Uses Carrots and Sticks to "Induce" Defendants to "Support [DOJ] Policy Objectives" appeared first on Reason.com.

[David Post] The Deal with Eric Adams is NOT a "Plea Bargain"

[Why the Eric Adams Affair is a Big Deal]

In response to my earlier post about the odious and reprehensible Eric Adams deal ("One Step Closer"), several commenters asked why this deal is any different from an ordinary plea bargain deal, in which the government agrees to drop the original charge(s) against a criminal defendant in return for the defendant agreeing to do or not do certain things - e.g., to cooperate with the prosecutors in various related cases, say, or to step down from a managerial role in a certain company, or to stop holding himself out as a financial adviser, etc. The government is agreeing not to prosecute Adams, and Adams is promising to cooperate with federal law-enforcement actions implementing its immigration policies. Why is everyone making such a big deal about it?

It's a very good question, to which there is a very good answer, which can help explain why the DOJ's actions are both unprecedented and chilling.

The Adams deal differs from business as usual in three important ways:

First, in an ordinary plea bargain, there's a plea; that is, the defendant pleads guilty to something that entails lesser punishment than would accompany the original charge.  You're indicted for murder, say, but in your plea deal the government agrees only to charge you with negligent homicide, and as part of your plea agreement you enter a plea of "Guilty" to that lesser charge.

Here, though, Adams has not entered any plea (other than his original "Not guilty" plea).  The government is simply going to ask the judge to dismiss the corruption charges against him, without requiring him to admit any guilt at all.

Second:  More importantly, in an ordinary plea deal, the court is asked to dismiss the original charges with prejudice.  This means that after the prosecutor drops the murder charge against you, that charge cannot be re-instated at a later date. You can be prosecuted later if you violate the terms of the plea deal; that is, if you promise as part of the deal to cooperate with prosecutors in related cases against your co-defendants but then refuse to do so, you can be prosecuted for that.  But the murder charge can't be revived once it has been dismissed.

Here, the DOJ is asking the judge to dismiss the criminal charges against Adams without prejudice.  That means that the original charges against Adams will be hanging over his head, and if he does not comply with the terms of the agreement, the prosecutors can re-institute the original corruption charges against Adams if it wants to.

Adams has, apparently, agreed to cooperate with federal ICE agents in a specific way - to allow ICE agents to interview detainess at the Rikers Island Detention Center.

Next week the Attorney General tells him: "ICE would like to have access to New York City high schools as well. And all their personnel records.  And tax records for all personnel."  And she reminds him - gently - that if he doesn't cooperate, they will reinstate the corruption charges against him.

You're not nervous yet?

And third: the quid pro quo requires Adams to take certain steps in his official capacity as Mayor of New York. The City of New York is not a defendant in the original action; only Eric Adams is, in his individual capacity. Adams is supposed to make official decisions based on his assessment, right or wrong, about the needs of the people of New York - not on the basis of whether it keeps his ass out of jail.

Sill not nervous?

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[Ilya Somin] Birthright Citizenship - A Response to Barnett and Wurman

[Their argument for denying birthright citizenship to children of undocumented immigrants born in the US has multiple weaknesses, including that it would also have denied it to former slaves.]

(NA)

In a recent New York Times op ed, legal scholars Randy Barnett and Ilan Wurman offer a partial defense of President Trump's executive order denying birthright citizenship to children of undocumented immigrants, and migrants in the US on temporary visas. The Citizenship Clause of the Fourteenth Amendment grants citizenship to anyone "born … in the United States and subject to the jurisdiction thereof." The standard view of this provision is that it covers everyone born in the United States that is subject to US law, and thus, as the Supreme Court explained in the 1898 Wong Kim Ark case "includ[es] all children here born of resident aliens, with the exceptions or qualifications… of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes." The Indians "owing direct allegiance to their several tribes" were excluded because Indian nations were distinct sovereigns exempt from many US laws. For this reason, four federal courts have ruled against Trump's order.

Barnett and Wurman argue that only people born in the United States at a time when their parents have traded "allegiance" for "protection" truly qualify as under the jurisdiction of the United States. They contend that illegal migrants haven't made any such compact with the US, and therefore don't qualify.

Barnett and Wurman cite an 1862 opinion by Attorney General Edward Bates stating that "The Constitution uses the word 'citizen' only to express the political quality of the individual in his relations to the nation; to declare that he is a member of the body politic, and bound to it by the reciprocal obligation of allegiance on the one side and protection on the other." Barnett and Wurman claim the Citizenship Clause is based on a social contract theory under which people enter into a "social compact" with the government, trading allegiance for the protection of the laws.

There are several flaws in Barnett and Wurman's "allegiance-for-protection" theory. The biggest is that, if consistently applied, it would undermine the central purpose the Citizenship Clause: extending citizenship to recently freed slaves and their descendants. Slaves born in the United States (and their parents, who were also usually slaves) obviously weren't part of any social compact under which they traded allegiance for protection. Far from protecting them, state and federal governments facilitated their brutal oppression at the hands of their masters.

This situation changed, to an extent, with the abolition of slavery through the Thirteenth Amendment. But  the "subject to the jurisdiction" language of the Citizenship Clause refers to people subject to that jurisdiction at the time they were born. For example, the child of a foreign diplomat doesn't get birthright citizenship if her parents later lose their diplomatic immunity. If being subject to US jurisdiction requires a compact trading allegiance for protection, former slaves obviously didn't qualify. Thus, the Barnett-Wurman theory would defeat the central purpose of the Citizenship Clause. That alone is reason to reject it.

Another problem with their analysis is that they rely almost exclusively on sources interpreting the nature of citizenship before enactment of the Fourteenth Amendment, such as the 1862 Bates opinion. But the whole point of the Citizenship Clause was to expand the range of people eligible for birthright citizenship, to include former slaves. Thus, we should not assume that the Citizenship Clause is limited by previous understandings.

Barnett and Wurman do not consider extensive evidence from the period during and immediately after enactment, of the kind canvassed by scholars such as Michael Ramsey in his detailed 2020 article on this subject. That evidence, as Ramsey explains, strongly supports birthright citizenship for the children of undocumented migrants.

Barnett and Wurman argue that the traditional view cannot explain seeming anomalies, such as "the status of children born to citizens residing within enemy-occupied territory, who appear to have been considered citizens if their parents remained loyal… [a]nd… the status of children born to foreigners on foreign public vessels in U.S. waters, who were not considered citizens." These aren't actually anomalies at all. As the Supreme Court ruled in 1812, foreign public vessels in US territorial waters remain under the sovereignty of their governments, and therefore are not within US jurisdiction. Citizens residing within enemy-held territory remain under an obligation to follow US law, and that duty can be enforced upon them in a way it cannot be on foreign troops (for example through prosecutions undertaken after the US recaptures the territory).

Finally, it's important to remember that, as Gabriel Chin and Paul Finkelman have shown, the freed slaves whose children were covered  by the Citizenship Clause included a large population that had entered the US illegally, by virtue of being brought in after the federal government banned the slave trade in 1808. This shows that illegal entry was not considered a barrier to being under US jurisdiction.

Even if valid, the Barnett-Wurman theory only partially justifies Trump's order. That order excludes not just children of illegal entrants, but those born to migrants who entered legally on temporary visas. But their argument fails with respect to children of the undocumented, as well. At the very least, it is not strong enough to overcome decades of contrary precedent and practice, thereby subjecting hundreds of thousands of innocent children to the trauma of deportation.

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[Eugene Volokh] "It Is a Fact That the Body of Water … Is Called the Gulf of America"?

[Place names in American English are defined by what American English speakers call them, not what the President tells us to call them.]

I hope to blog soon about the First Amendment questions raised by President Trump's excluding the AP from the Oval Office and Air Force One because of the AP's refusal to call the Gulf of Mexico "the Gulf of America." (Turns out the precedents on this subject are complicated.) But I wanted to start by briefly discussing the underlying language question. Here's an excerpt from Wednesday's White House press briefing:

QUESTION: But isn't it retaliatory in nature, is the argument, because the reason that the AP was barred, which they said was because they're not using the phrase Gulf of America, they're using Gulf of Mexico in line with their standards. And so the question here is, is this setting a precedent that this White House will retaliate against reporters who don't use the language that you guys believe reporters should use?

And how does that align with the First Amendment commitment that you were just talking about?

KAROLINE LEAVITT: I was very upfront in my briefing on day one that if we feel that there are lies being pushed by outlets in this room, we are going to hold those lies accountable. And it is a fact that the body of water off the coast of Louisiana is called the Gulf of America. And I'm not sure why news outlets don't want to call it that, but that is what it is. The secretary of Interior has made that the official designation, and the Geographical Identification Names Server and Apple has recognized that, Google has recognized that.

Pretty much every other outlet in this room has recognized that body of water as the Gulf of America. And it's very important to this administration that we get that right, not just for people here at home, but also for the rest of the world. Sure.

Likewise, here's a Tweet from the White House Deputy Chief of Staff Taylor Budowich:

The Associated Press continues to ignore the lawful geographic name change of the Gulf of America. This decision is not just divisive, but it also exposes the Associated Press' commitment to misinformation. While their right to irresponsible and dishonest reporting is protected by the First Amendment, it does not ensure their privilege of unfettered access to limited spaces, like the Oval Office and Air Force One. Going forward, that space will now be opened up to the many thousands of reporters who have been barred from covering these intimate areas of the administration. Associate Press journalists and photographers will retain their credentials to the White House complex.

This, it seems to me, just isn't right. The name for a geographical feature is a linguistic and sociological question: In a particular language (or dialect), a thing's name is what speakers of that language call it. Sometimes speakers have different names for the same thing, in which case each is a legitimate name. (Among American speakers of English, for instance, the U.S. can be called "America," "the U.S.," "the States," and more.)

It is not a legal question that can be settled by a "lawful geographic name change," or a scientific question, or a question that can be resolved by the government. Pennsylvania may call itself a Commonwealth, but it's also a state. If the Governor of Pennsylvania insisted that everyone should call it a Commonwealth, we could still continue to call it a state. (As it happens, the U.S. Constitution calls all the states, expressly including Pennsylvania, "states," and the Pennsylvania Constitution also refers to it as a state at times, but that's not the important point; the important point is what American speakers of English call Pennsylvania.)

Likewise, the government of Turkey apparently wants people to call the country Turkiye, but that imposes no obligation on English speakers who have long called it Turkey—just as the Turks have no obligation to call the country they call "İngiltere" by its English name of "England." It's not a "lie" when Americans call the country Turkey, no matter what the Turkish government thinks. It's not "a fact that the" country that occupies that territory "is called" Turkiye. Indeed, it's a fact that it's not generally called Turkiye in English (though perhaps one day it might be, if English speakers eventually decide to go along with this).

Likewise, it's not a "lie," "irresponsible," or "dishonest" when people call the Gulf of Mexico "the Gulf of Mexico," and it's not a fact that it's called "the Gulf of America." It may be called that by President Trump and his subordinates in the Executive Branch, but he doesn't get to determine what's a "fact" on this for the rest of us.

Now that seems to me particularly clear for geographical features that are mostly outside the U.S., such as the Gulf. (What would we think if the Governor of Kentucky announced that the Ohio River should henceforth be called the Kentucky River?) But I don't think my point relies on that. The English name of "Turkey" isn't subject to the control of the Turkish government, and the English name of places even within the U.S. isn't subject to the control of the U.S. government.

When Mount McKinley was renamed Mount Denali by the Obama Administration, that didn't make it a "lie" for people to keep calling it Mount McKinley. The "fact," I expect, was that the mountain had two names at that point, with some people calling it one thing and others another. Now it's been renamed back to Mount McKinley, and the fact remains that it's both Mount McKinley and Mount Denali.

To be sure, over time place names do change, and a governmental renaming can help influence that. I expect very few people still call "New York" "New Amsterdam," except as some sort of historical joke. And of course a governmental decision can lead to one name having one political connotation and another having another. (In this respect, it's those decisions that are "divisive.") I am told, for instance, that this is so with the Burma vs. Myanmar question, and with .

Again, whether the President may retaliate this way against a media entity that doesn't go along with his wishes is a separate matter, which I hope to blog about soon. I also appreciate that the whole dispute is likely mostly absurdist political theater.

But, theater or not, framing this as a matter of "lies" or "dishonest[y]" or "misinformation" or rejection of "lawful" decisions strikes me as wrong. It mischaracterizes the way place names actually operate in English (and I expect in most other languages). And it seeks to arrogate to the government—or, more precisely, to the President—power over the English language and its speakers.

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[Josh Blackman] Today in Supreme Court History: February 15, 1790

2/15/1790: Justice John Rutledge takes oath.

Justice John Rutledge

 

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[Eugene Volokh] Friday Open Thread

[What's on your mind?]

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[Eugene Volokh] "On Emil Bove's Directive to Danielle Sassoon"

A perspective from the decidedly conservative Ed Whalen, writing at the National Review Online:

In an act of courage and integrity, Danielle Sassoon, Donald Trump's own hand-picked interim United States Attorney for the Southern District of New York, resigned yesterday over acting Deputy Attorney General Emil Bove's insistence that she move to dismiss without prejudice the pending criminal charges against New York City mayor Eric Adams. For fuller background on the matter, I encourage you to read Andy McCarthy's excellent Corner post yesterday.

Here I will offer some observations on the remarkable exchange between Bove and Sassoon: Bove's February 10 directive to Sassoon, Sassoon's February 12 letter to Attorney General Pam Bondi, and Bove's February 13 reply….

Read the post for more, and see also Whalen's Hagan Scotten, Lead Prosecutor of Eric Adams, Resigns in Awesome Letter. I don't have well-informed views on the controversy myself, but Whalen's views struck me as worth passing along, especially given that Whalen has supported at least some of the Trump Administration's other recent actions.

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[Josh Blackman] "Fools" Rush In the Department of Justice

[Another day, another resignation letter.]

The fallout continues from the Eric Adams case. Yesterday, I wrote about Danielle Sassoon's resignation, and Emil Bove's response. Today, Hagan Scotten, another Assistant United States Attorney resigned with a formal letter.

Again, there is much to discuss about the Sassoon-Bove exchange, which I will do in the future after I've had some more time to reflect. Here, I will reflect on one passage in Scotten's letter:

I can even understand how a Chief Executive whose background is in business and politics might see the contemplated dismissal-with-leverage as a good, if distasteful, deal. But any assistant U.S. attorney would know that our laws and traditions do not allow using the prosecutorial power to influence other citizens, much less elected officials, in this way. If no lawyer within earshot of the President is willing to give him that advice, then I expect you will eventually find someone who is enough of a fool, or enough of a coward, to file your motion. But it was never going to be me.

In recent years, the Department of Justice has prosecuted public officials in high profile cases. In several of those cases, the Supreme Court unanimously reversed the convictions.

In McDonnell v. United States (2016), the Court held that an "official act" must involve a formal exercise of governmental power on something specific pending before a public official. DOJ though it knew what was a proper exercise of government power. The Supreme Court disagreed. Could it be said that the scores of DOJ employees who brought this ill-fated prosecution were "fools"? Do you know who was the Chief of the DOJ Public Integrity Section at the time? Jack Smith. Was it foolish for a prosecutor to indict a former Governor in a case that garnered zero votes at the Supreme Court?

Jack Smith also led the prosecution of John Edwards, the former Senator and Vice Presidential Candidate. Smith relied on a dubious theory of campaign finance law, and the case yielded a deadlocked jury and a mistrial. (When Smith reported that he had enough evidence to convict Trump, I thought back to the Edwards case.) DOJ did not try that theory again. Was it foolish to bring this prosecution of a former public official when the jury wouldn't even convict?

Fast forward to Kelly v. United States (2020). This prosecution arose from the so-called Bridgegate scandal. The United States indicted members of Governor Chis Christie's administration. The Supreme Court unanimously reversed the conviction. Justice Kagan ruled that the scheme, which did not aim to obtain money or property, could not violate the federal fraud law. Was it foolish to indict a public official in a case that garnered zero votes at the Supreme Court?

In 2023, the Supreme Court decided Ciminelli v. United States and Percoco v. United States. These cases arose over scandal involving funding for a Buffalo Bills stadium project. In both cases, the Supreme Court unanimously reversed the convictions. Was it foolish to bring these cases that garnered zero votes at the Supreme Court?

Sensing a pattern? Another public corruption case pending this term, Kousisis v. United States, will likely yield a reversal. And I think the prosecution against Senator Menendez will meet a similar fate, if he is not pardoned. That doesn't even factor in Alvin Bragg's conviction of Trump, which will almost certainly not stand up on appeal. Lawfare all the way down. Maybe, just maybe, federal prosecutors are not in the best position to determine whether public official abused their power.

I appreciate that Scotten thinks that the Trump DOJ's approach to criminal prosecution is "foolish." I think much the same can be said for how federal prosecutors have approached public corruption cases for some time. And you don't have to take my word for it. Add up all of the unanimous Supreme Court rulings.

What we have here are two very different conceptions of the federal criminal justice system. On the one hand, Sassoon and her colleagues defend the traditional notion that "independent" prosecutors have the benighted power to define what is in the public good. They can define when public officials abuse their power, and can punish those actions with criminal sanctions. (We saw similar arguments during the first Trump impeachment.) Those defending Sassoon are invested in the DOJ club, and the continuation of its longstanding practices.

President Trump, through Bove, articulate a different perspective. The President, as head of the executive branch, can make his own determination of what is in the public good, and determine when public officials are abusing their power. Trump, perhaps more than any living person, is uniquely situated to make this sort of judgment. From the moment he was sworn in, he faced nonstop litigation (remember the Emoluments Clauses?) and two impeachment trials. After he left office, he was indicted in several courts based on novel and dubious theories of criminal liability. Who can forget the efforts to disqualify him under Section 3--which also led to a unanimous Supreme Court reversals? And despite all that happened, Trump still won re-election. Distinguished prosecutors thought they knew what was in the public good. The voters disagreed.

There will likely be more resignations. But I think little more is left to be said here. There are two diametrically-opposed views on display. And only one such view can prevail.

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[Josh Blackman] FTC Bans Political Appointees From Being ABA Members

[The ABA has been planting the seeds of its own demise for decades. ]

In April 2023, I wrote a column for the ABA Journal titled "The ABA needs ideological diversity to ensure its future." I concluded:

If the ABA does not arrest its progressive lurch, the organization risks its own obsolescence. Model Rules will not be adopted. Evaluations of judicial nominees will be ignored. The accreditation monopoly will cease. And so on. A decline in membership will be the least of the ABA's problems. The ABA can either adapt to a new political reality or fade away like the guilds of yore.

Over the following year, I attempted to work within the ABA to reform the organization. I joined a caucus formed to promote viewpoint diversity within the ABA. I even spoke at the Midyear Meeting, where I explained in clear terms how the ABA's fixation on leftist politics and DEI would spell its demise. My remarks were met with shock. I was called a racist and worse. People objected to my presence on the panel. One person in the audience said that she would defend the ABA's DEI efforts till the bitter end, even if she was the last member. She may yet get her wish. For reasons I will discuss more fully another time, I resigned from the Caucus. In short, I thought the ABA was beyond repair, and my time could be spent better doing other things.

Today, Andrew Ferguson, the Chairman of the Federal Trade Commission, hammered what may be the first nail in the ABA's coffin.

For many years, federal antitrust enforcers and the private antitrust bar have enjoyed a cozy relationship facilitated by the Antitrust Law Section of the American Bar Association (ABA). The ABA's long history of leftist advocacy and its recent attacks on the Trump-Vance Administration's governing agenda, however, have made this relationship untenable. I therefore have concluded that it does not advance the interests of the United States government for Federal Trade Commission (FTC) political appointees to hold leadership positions in the ABA or to participate in ABA events. Accordingly, I prohibit FTC political appointees from holding leadership positions in the ABA, participating in or attending ABA events, or renewing any existing ABA memberships. I further prohibit the FTC from expending any funds to facilitate any employee's membership in the ABA or participation in, or attendance at, an ABA event.

The FTC is first, but it will not be last. I suspect all federal agencies will follow suit. Whatever difficulties the ABA had with membership numbers will become far worse. And I fully expect the Department of Education to revoke the ABA's accreditation power. The ABA will be left with little reason to exist--at least not at such a large size. There will be no real influence left.

It didn't have to end this way. The ABA could have arrested its decline. Instead, it was captured by leftist groups, and tied itself to the DEI mast.

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