Winning civil justice for Michael Brown and Eric Garner

By David B. Rivkin Jr. and Andrew Grossman

The quest for justice for Michael Brown and Eric Garner did not end with the decisions of grand juries not to indict the police officers whose actions led to those men’s deaths. Those frustrated by the grand juries’ dispositions can take comfort in knowing that victims of police violence, as well as their families, can get their day in court.

The family of Garner, who died after being placed in an apparent chokehold by a New York police officer, has already announced plans to sue the officer and the city for $75 million. Michael Brown’s family has not yet said whether they intend to bring a lawsuit against former Ferguson, Mo., police officer Darren Wilson or the city, but their lawyer has indicated the possibility is being considered.

These suits may succeed where criminal charges failed. To protect against wrongful conviction, criminal charges must be proved “beyond a reasonable doubt,” the highest standard in law. By contrast, civil plaintiffs need convince a jury only that their claims are supported by a “preponderance of the evidence” — a hair more than 50 percent.

Both families could bring claims for wrongful death, arguing that the officers failed to exercise appropriate care in the confrontations that resulted in the deaths of their family members. Such a claim by Garner’s family would be particularly strong, given that the New York Police Department long ago banned chokeholds precisely to prevent choking-related deaths. As for Brown, the circumstances of his death are less clear at this time, but a trial would provide an opportunity for all the facts to come out. If the “hands-up-don’t-shoot” narrative is correct, the Brown family should be able to prevail.

And unlike a criminal trial, civil litigation can reach beyond the boundaries of a particular case to bring about broader change. Federal law authorizes claims — which can be brought in state or federal court — for violations of constitutional rights by state officials. Such claims can target both individual officers and, where plaintiffs can show that their injuries are the result of an official policy or practice, the municipality itself.

The most obvious civil rights claim in each case would be for the use of excessive force; courts have ruled that the use of force must be “objectively reasonable” under the Fourth Amendment. Such claims are heavily fact-dependent, turning on — in the Supreme Court’s formulation — “the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” The video of Garner’s death appears to speak directly to these factors: The suspected crime was minor, his threat nonexistent and his actions reflecting frustration with police harassment more than flight or resistance. Again, the evidence concerning Brown’s death is less conclusive.

Both families could also bring claims challenging alleged racial profiling. Typically, such claims argue that a police stop was taken without the reasonable suspicion of criminality required by the Fourth Amendment and was based on race, in violation of the equal protection clause. Profiling claims can be difficult to prove, due to the light burden the law imposes on police officers to justify a brief stop. The officers involved in these cases have already offered reasons for stopping Brown and Garner — walking in the street and selling contraband cigarettes, respectively — that may be sufficient to defeat a profiling claim.

Still, such civil-rights claims could be a powerful way to force changes in policing in Ferguson and New York. Even if the cities themselves are not named as defendants, a finding of liability against an officer would put officials on notice that failure to prevent future abuses will have serious consequences.

Failure to appreciate the important remedies offered by civil law may lead some to draw the wrong lesson from the tragedies in Ferguson and Staten Island: that the protections for those accused of crimes are too strong. But safeguards such as grand juries provide, as the great Justice Joseph Story explained long ago, “security to the citizens against vindictive prosecutions, either by the government, or by political partisans, or by private enemies.” Weakening that security would only further disadvantage communities that already feel they are unfairly targeted by police and prosecutors. If anything, reform should strengthen grand juries for all those accused of crimes to restore what once was a vital check on the power of prosecutors and a protection against the enormous burden of a wrongful indictment.

The mistake on both sides is to assume that victims of crime are entitled to punishment of those they believe are responsible. It is society that is entitled to punish the provably guilty. Criminal prosecution is therefore a poor fit where evidence of guilt is ambiguous or equivocal — as is often the case involving confrontations with police.

What victims are entitled to is compensation for their injuries through civil litigation. That’s why the grand juries’ decisions are not the end of the story for determining police culpability for the deaths of Michael Brown and Eric Garner.

David B. Rivkin Jr. and Andrew Grossman specialize in constitutional litigation at the firm Baker Hostetler LLP.

Source: http://www.washingtonpost.com/opinions/winning-civil-justice-for-michael-brown-and-eric-garner/2014/12/12/01ab521e-815d-11e4-9f38-95a187e4c1f7_story.html

Obama Cynically Cut China Deal To Force Energy Price Hikes On U.S Consumers

Whiplash is an occupational risk for those keeping track of President Barack Obama’s muscular exertions of executive power. In just the few weeks since his party’s shellacking in the midterm elections, the president has made major moves on immigration, Internet regulation, and air pollution, just to name a few.

One problem with activist government is that too many actions that merit serious concern and skepticism fall by the wayside. Among them is the president’s announced climate deal with China, which hit front pages a week after the election before sliding into obscurity, overtaken by so many other events. But like the president’s immigration actions, this actually is something new, and more than a little sinister.

A Method to His Double-Dealing Madness

Taken at face value, the deal doesn’t make any sense—at least, not from the United States national-interest perspective. The United States agrees to costly massive cuts in greenhouse gas emissions: 26 to 28 percent below 2005 levels by 2025, far more than the 17-percent cut the president previously targeted. In return, China agrees to…do nothing for 16 years, until 2030. Its emissions won’t increase beyond their level that year, according to the agreement. While this might appear to be a concession, it really isn’t: although emissions are growing at a rapid clip in China today, most projections see them leveling off right around—you guessed it—2030. In other words, this may be the most one-sided deal since the Dutch purchased Manhattan.

But there is a method to what would otherwise seem to be pure madness. As the numbers suggest, the deal has just about nothing to do with China, which will go on its merry way building coal-fired plants to slake its thirst for cheap and secure energy. But it has everything to do with Americans’ continued reliance on coal-generated electricity.

Radically cutting U.S. greenhouse gas emissions has been a central goal for the president since taking office. The centerpiece of this drive was supposed to be a cap-and-trade system, but that was dead on arrival even when Democrats controlled Congress. So the Environmental Protection Agency (EPA) has been dutifully marching forward with a slew of politically-challenged and legally-questionable regulations, from its first wave of permitting requirements for new facilities emitting greenhouse gases (struck down in part by the Supreme Court) to its proposed “performance standards” for new power plants (withdrawn and then re-proposed following legal objections) to its recently-proposed “Clean Power Plan” to cap emissions from existing power plants (already the subject of litigation and withering criticism).

The China Deal Is Smoke and Mirrors

But unilateral action has its risks. If EPA stumbles at all in its roll-out of the Clean Power Plan, that could delay environmentalists’ goal of regulating existing plants for years, particularly if Obama’s successor doesn’t share his priorities. Even if the agency does meet its internal deadlines, there’s still no guarantee the next administration won’t roll back its plans.

This is where the China deal fits in. It provides political cover by creating the appearance—really, the false impression—that the United States isn’t alone in sacrificing economic growth to lower emissions and, in particular, that the president isn’t putting U.S. businesses at a competitive disadvantage to Chinese industry.

There’s also diplomatic cover, in that the next president will be at least hesitant to walk away from an international agreement, binding or not. Much diplomacy is conducted informally, and, all else being equal, nations and their leaders do well to keep their word.

And there’s a measure of legal cover. To be sure, an executive agreement like this one is not legally binding—a treaty, after all, has to be ratified by the Senate, which the president knows is politically impossible. But the courts are generally more deferential to policy decisions that have foreign-policy consequences, given the president’s unique competence and authority in that area. Expect our bilateral “obligations” to China to occupy a place of prominence in legal briefs defending the Clean Power Plan, which is conveniently referenced in the U.S.-China executive agreement, from the legal challenges that are sure to follow its introduction.

Will the Courts Care?

Savvy as it may be, the China deal is also remarkably cynical and has the air of being too-clever-by-half. Lacking the power to simply change domestic laws—well, at least until recently—President Obama is attempting a partial end-run through the exercise of his potent but carefully circumscribed foreign-policy powers. There’s absolutely no reason the deal had to be with China; the Seychelles or Tonga would have worked just as well.

This treads a bit too close to Justice Scalia’s concern, expressed in a treaty-power decision last year, that the Obama administration’s position was a recipe for circumventing the Constitution’s limitations on federal power. Under an unbounded treaty power, he explained, “negotiating a treaty with Latvia providing that neither sovereign would permit the carrying of guns near schools” would be sufficient to resuscitate the statute prohibiting the carrying of firearms near schools that the Courtpreviously struck down for exceeding Congress’s enumerated powers. Notably, at oral argument, Solicitor General Donald Verilli said it was simply “unimaginable” that the president or Congress would abuse foreign-policy powers to aggrandize their own authority in domestic affairs.

And yet. Remember when it was unimaginable that the president would act unilaterally to alter the legal status of millions of immigrants?

As with the president’s immigration actions, the creative repurposing of executive power that underlies the China deal will have unexpected consequences. If international agreements become just another tool of domestic policy, subject to reconsideration every four or eight years, will it diminish the standing of our word among nations? Or will it ossify U.S. domestic policy, as policy choices are taken off the table to comply with existing agreements?

The key question is whether Congress and the courts will recognize the China deal for what it is—a cynical exercise of bogus internationalism directed entirely at domestic affairs—and treat it accordingly.

Messers. Rivkin and Grossman practice law, with a particular focus on constitutional litigation, at BakerHostetler in Washington DC. Rivkin served at the Justice Department and the White House counsel’s office under presidents Reagan and George H.W. Bush.

Source: http://thefederalist.com/2014/12/03/obama-cynically-cut-china-deal-to-force-energy-price-hikes-on-u-s-consumers/

Obama’s Immigration Enablers

By DAVID B. RIVKIN JR. And ELIZABETH PRICE FOLEY

A few hours before announcing his new immigration policy, President Obama received an opinion blessing its legality from the Office of Legal Counsel. Regrettably, the OLC’s made-to-order legal analysis is shockingly flawed in five major respects.

First, the OLC justified the policy as a prioritization of government’s “limited resources.” But the executive order does more than prioritize. It rewrites existing law. Illegal immigrants won’t be deported if they aren’t a threat to national security, public safety or border security. Beyond these three categories, deportation may be pursued only if it serves an “important federal interest.”

Under current law, by contrast, anyone entering the U.S. illegally is a “deportable alien” who “shall, upon the order of the Attorney General, be removed.” The president’s policy transforms an entire category of aliens deemed deportable into two different categories, whereby some are deportable and some aren’t. This is a shift in kind, not merely degree.

A president prioritizing resources would do what previous presidents have done: enforce the entirety of immigration law, while allowing prosecutors to make case-by-case determinations. By announcing a global policy of nonenforcement against certain categories, Mr. Obama condones unlawful behavior, weakening the law’s deterrent impact, and allows lawbreakers to remain without fear of deportation. As he puts it, “All we’re saying is we are not going to deport you.” These individuals are no longer deportable, although Congress has declared them so.

Second, the OLC incorrectly concludes that the president’s plan involves case-by-case scrutiny. The OLC admits “a general policy of nonenforcement that forecloses the exercise of case-by-case discretion poses ‘special risks’ that the agency has exceeded the bounds of its enforcement discretion.” It argues, however, that there are no “removable aliens whose removal may not be pursued under any circumstances.” And although the policy “limits the discretion of immigration officials . . . it does not eliminate that discretion entirely.”

It is absurd to assert that the theoretical possibility that a small percentage of the more than four million likely applicants may be rejected is meaningful “prosecutorial discretion.” This is illustrated by Mr. Obama’s 2012 Deferred Action for Childhood Arrivals policy. Of 521,815 applications considered on a “case-by-case” basis, only 3% have been rejected. With an approval rate of 97%, the president’s criteria are rubber-stamped. This is a categorical exemption from the law.

Third, even if Mr. Obama’s plan is accepted as case-by-case discretion, it creates a remedy—deferred deportation—for a category that Congress hasn’t allowed and the president lacks authority to create. The OLC memo lumps deferred deportation with other kinds of deportation relief, such as parole, temporary protected status and deferred enforced departure. But each of these has been specifically authorized by Congress, or—in the case of deferred enforced departure—is supported by the president’s foreign-affairs power.

While Congress has authorized deferred deportation for specific categories, lawmakers haven’t authorized it for those to whom President Obama wishes to extend it—the parents of U.S. citizens and lawful permanent residents. The OLC claims that this isn’t important because deferred deportation “has become a regular feature of the immigration removal system that has been acknowledged by both Congress and the Supreme Court.” It cites the 1999 Reno v. American-Arab Anti-Discrimination Committee case.

In that case, members of the Palestinian Liberation Front claimed the Immigration and Naturalization Service’s refusal to defer their deportation constituted discrimination. The court disagreed, ruling that a recently passed statute was “clearly designed to give some measure of protection to ‘no deferred action’ decisions” and deny adjudication of such discrimination claims. The ruling merely acknowledged that Congress didn’t want federal courts hearing discrimination lawsuits based on a failure to grant deferred action. It didn’t consider or endorse the legality of deferred deportation.

The OLC next claims that Congress has “acquiesced” to deferred deportation. It cites statutes authorizing deferred deportation for battered spouses of U.S. citizens, and instances where individuals entitled to visas—such as victims of human trafficking or college students affected by Hurricane Katrina—needed more time to obtain visas or fulfill the visa’s purpose. Congress’s authorization of deferred deportation for narrow categories doesn’t allow a president to create broad new categories, particularly since his deferred deportation creates entitlement to benefits such as work permits, and because the category of aliens created by President Obama’s policy weren’t entitled to stay.

Fourth, the OLC claims that past presidents have taken similar actions, yet it fundamentally misrepresents their legal basis. The primary example is George H.W. Bush ’s 1990 Family Fairness Policy (FFP), which affected an estimated 1.5 million children and spouses of those granted amnesty by the 1986 Immigration Reform and Control Act.

The FFP, however, was consonant with existing statutes. The FFP granted not deferred deportation, but “voluntary departure” for up to one year. Voluntary departure allows deportable individuals to voluntarily depart the country, on their own dime, in lieu of being forcibly removed. Their status as “deportable” individuals never changes.

The FFP was grounded in the then-existing voluntary-departure statute, which stated, “The Attorney General may, in his discretion, permit any alien under deportation proceedings . . . to depart voluntarily from the United States at his own expense in lieu of deportation.” The FFP didn’t contradict existing law or attempt to recategorize deportable aliens.

Fifth, the OLC ignores that the new Obama policy profoundly harms the states, which bear the costs of educating and providing health care to millions of illegal immigrants now allowed to remain. The policy also injures state sovereignty.

In Arizona v. U.S., the Supreme Court ruled in 2012 that federal immigration law pre-empts much of state power over immigration. But when a president unilaterally acts, it deprives states of their police power and representation in Congress, imposing changes without democratic deliberation. While federal immigration law can pre-empt state power, there can be no pre-emption when a president exceeds his constitutional authority by rewriting the law.

The OLC’s memo endorses a view of presidential power that has never been advanced by even the boldest presidential advocates. If this view holds, future presidents can unilaterally gut tax, environmental, labor or securities laws by enforcing only those portions with which they agree. This is a dangerous precedent that cannot be allowed to stand.

Source: http://online.wsj.com/articles/david-rivkin-and-elizabeth-price-foley-obamas-immigration-enablers-1416872973

Mr. Rivkin is a constitutional litigator and served in the Justice Department and White House Counsel’s Office in the Reagan and George H.W. Bush administrations. Ms. Foley is a constitutional law professor at the Florida International University College of Law.

Let the President Decide on Jerusalem

By DAVID B. RIVKIN JR. and LEE A. CASEY
Since the 1990s, Congress has maintained that Jerusalem should be recognized as Israel’s capital. Since Israel’s founding in 1948, presidents have stated that Jerusalem’s status can only be decided as part of a broader peace settlement. On Monday this dispute again reached the Supreme Court, and it offers the justices a unique opportunity to elucidate the proper way to resolve separation-of-power disputes between Congress and the executive.

Zivotofsky v. Kerry involves Menachem Zivotofsky, a 12-year-old Jerusalem-born American citizen. His parents want Israel identified as his birthplace on his passport. Section 214(d) of the Foreign Relations Authorization Act, Fiscal Year 2003, permits this choice, but the secretary of state refused to comply, listing Jerusalem alone as his place of birth. The secretary argues that the law violates established U.S. foreign policy and interferes with the president’s exclusive power to recognize foreign states and their territorial extent.

In the first round of this litigation, the U.S. Court of Appeals for the District of Columbia concluded that this contest presented a political question that the courts could not answer. The Supreme Court reversed that decision, explaining that however “political” the circumstances, the question was a straightforward one of constitutional law suitable for judicial resolution.

The D.C. Circuit reheard the case last year and concluded that section 214(d) is unconstitutional because the president has the exclusive authority to determine the territorial boundaries of foreign states, their capitals and their governments—at least for purposes of U.S. diplomatic intercourse.

This authority is based in clear constitutional text that gives the president the power “to receive Ambassadors and other public Ministers.” Although the court found this language ambiguous (relying instead on historical practice and Supreme Court statements that the president alone has the power to recognize a foreign state as sovereign), the framers used this language precisely and to a purpose.

In their time, as today, the purpose of “receiving” an ambassador was not chitchat. It was a solemn act through which one head of state—usually through acceptance of “credentials” or “letters of credence”—recognizes the legitimacy of a foreign ambassador’s government—the right of his or her opposite number to send and accredit diplomatic representatives.

The critical nature of “receiving” is why, for example, the first American representatives sent to France in 1776 were not “received” by King Louis XVI until the colonies showed they had some chance of success in their war for independence from Britain by winning the battle of Saratoga in 1777. “Receiving” the Americans as diplomats inherently involved France’s recognition of the new country. By contrast, as noted by Emmerich de Vattel in his highly influential 18th-century treatise, “The Law of Nations,” refusing to receive diplomats does a state “a very great injury; it is contesting its sovereign dignity.”

That said, Congress is not powerless. Passports are both diplomatic communications and government documents, and Congress clearly has some constitutional authority to regulate their content—including its powers to regulate foreign commerce, control naturalization, and prescribe rules by which government agencies and departments operate.

Unlike many other separation-of-power cases, the Supreme Court is not presented here with a situation in which one of the political branches is acting outside its authority. Congress and the president are both exercising legitimate constitutional powers, but in a manner that produces conflicting results. As in other areas where competing constitutional imperatives conflict, the court should use a balancing test, which measures the extent of harm suffered by each political branch.

The president prevails when the harms in Zivotofsky are balanced. A law declaring Jerusalem a part of Israel on U.S. passports severely undercuts the president’s exclusive power to recognize other sovereign nations, manifesting that the U.S. position is muddled. By contrast, if Congress is denied this power, the harm it suffers is small, as Congress remains free to regulate many other passport details, such as size, shape, color, or requiring that passages from the Declaration of Independence or Constitution be included.

Some have suggested (including Justice Anthony Kennedy during oral argument) that the branches’ interests can be harmonized by having the president add passport language, disclaiming that the “Jerusalem, Israel” reference denotes formal U.S. recognition of Jerusalem as Israel’s capital. But such a disclaimer accomplishes nothing, giving neither Congress nor the president any solace. And the conveyance of a unified national position on Jerusalem’s status would remain in doubt, potentially undermining the president’s ability to negotiate Middle Eastern peace.

Zivotofsky presents an important opportunity for the Supreme Court to recognize that, when the two political branches clash over lawful but conflicting powers, balancing harms and harmonizing interests is the proper constitutional path.

Messrs. Rivkin and Casey, partners at the firm Baker Hostetler LLP, served in the White House Counsel’s Office and the Justice Department in the Reagan and George H.W. Bush administrations.

Source: http://online.wsj.com/articles/david-b-rivkin-jr-and-lee-a-casey-let-the-president-decide-on-jerusalem-1415319014

You’re a Contractor? Political Contributions Not Allowed

By DAVID B. RIVKIN JR. and ELIZABETH PRICE FOLEY

Law professor Wendy Wagner’s scholarship at the University of Texas captured the attention of the U.S. government, which contracted with her to analyze how federal agencies can better use science in decision making. Unfortunately for Ms. Wagner, her federal contract means that she cannot contribute to any political party, committee or candidate for federal office. So in 2011 she went to court, asserting that the 74-year-old ban on contractor contributions is unconstitutional.

On Sept. 30, the full U.S. Court of Appeals for the D.C. Circuit heard arguments in Wagner v. FEC. The case provides a much-needed opportunity for the courts to demand strong justification for laws curtailing political speech.

The question in Ms. Wagner’s case is whether the ban on contractor contributions furthers the government’s interest in preventing quid-pro-quo corruption—meaning an exchange of dollars for political favors. This is the only interest considered sufficient to justify limits on political contributions, consistent with the First Amendment, under the Supreme Court’s 2010 decision in Citizens United v. FEC, and the D.C. Circuit’s own precedent that year in SpeechNow.org v. FEC.

The government contends that banning contractor contributions prevents quid-pro-quo corruption because if contractors could make donations, candidates might return the favor by helping secure a federal contract. The ban’s genesis lies in the Works Progress Administration scandal of the late 1930s, wherein WPA employees and contractors were strong-armed into making contributions to Democrats as a condition of keeping their jobs or contracts. The WPA’s blatant solicitation shocked the nation, leading to the 1939 Hatch Act, which included broad limits on political activity by federal employees. These included a ban on employee contributions to candidates and a ban on contributions by contractors.

In 1993 the Hatch Act was significantly amended, permitting federal employees to work on political campaigns while off-duty and contribute to candidates. Recipients of federal largess, such as grants, scholarships and benefits like Social Security or disability, also can make political contributions—even though, arguably, their contributions may be made with the goal of securing those benefits. Federal contractors like Wendy Wagner, by contrast, remain unable to make any contributions.

The outcome in Wagner will likely hinge on how closely the D.C. Circuit scrutinizes the connection between the law’s stated goal—preventing quid-pro-quo corruption—and its means of achieving that goal—banning contractor contributions. The fit between the law’s means and ends is loose at best.

For example, the law is oddly narrow. It prohibits contributions by a contracting entity, e.g., a corporation, but it allows the corporation’s employees and officers to make contributions—while sole proprietors like Ms. Wagner cannot. If Ms. Wagner wants to contribute, she can form a corporation, call herself the president, and sign her contract as president of Wagner Inc. If there truly is a risk of corruption, why permit such formalistic evasion of the law and give corporations an unfair advantage over sole proprietors?

Similarly, the law doesn’t ban contractors from fundraising or bundling—activities far more beneficial to political candidates—and it doesn’t ban contributions made before securing a federal contract. Any corruption risk is surely highest at the stage before awards are made, when those vying for contracts may hope that large contributions will win them a contract award.

The law also is oddly broad. It bans contributions to any political party, PAC or federal candidate, even though it is agency bureaucrats—not politicians, parties or PACs—who award contracts. Similarly, the law bans contributions to independent-expenditure groups—so-called Super PACs—such as Planned Parenthood Votes, or the Tea Party Patriots Citizens Fund. Yet none of these Super PACs can influence the awarding of federal contracts. A law that bans contractor contributions to individuals and entities that have no rational connection to the award decision is incapable, by definition, of reducing quid-pro-quo corruption—since the quid (contribution) cannot produce the quo (contract award).

If the D.C. Circuit concludes that the federal contractor ban violates the First Amendment, it will be because the courts now understand that prior restraints on political speech cannot rest on the government’s mere claim that such bans are needed to prevent corruption. When laws restrict citizens’ most fundamental constitutional rights, such as the right to political speech, courts have a duty to put the government to the test—to ensure not only that the laws advance important interests like preventing corruption, but that they are tightly calibrated to further those interests.

In Wagner, the D.C. Circuit will have an opportunity to show that judges take their duty to protect political speech very seriously.

Mr. Rivkin, a partner at the firm Baker Hostetler, served in the Justice Department and the White House Counsel’s Office in the Reagan and George H.W. Bush administrations. Ms. Foley is a constitutional law professor at Florida International University College of Law and the author of “Defending Citizens United,” forthcoming from Prager in 2015.

Source: http://online.wsj.com/articles/david-rivkin-and-elizabeth-price-foley-youre-a-contractor-political-contributions-not-allowed-1413932117

Criminalizing Political Speech in Wisconsin

By David B. Rivkin Jr. and Andrew Grossman

The criminalization of politics is bad enough—just ask Texas Gov. Rick Perry—but a new turn to target citizens as well threatens to permanently warp our political discourse. Like it or not, federal courts will have to intervene to uphold Americans’ First Amendment rights against win-at-any-cost politics.

Wisconsin is ground zero of this phenomenon. A partisan elected district attorney, John Chisholm, reportedly goaded on by his union-steward wife, Colleen, decided to take aim at Republican Gov. Scott Walker after his 2011 “Budget Repair Bill” cut back on public-sector collective bargaining within the state. But Mr. Chisholm didn’t stop there: After an aggressive criminal investigation failed to knock Mr. Walker out of office, the district attorney set his sights on the governor’s philosophical allies, an assortment of conservative citizen groups that supported Walker’s reforms.

The claim was that these groups illegally “coordinated” their speech on the issues with Gov. Walker’s campaign, thereby circumventing campaign-finance regulations. The evidence? Intercepted emails and phone records showing that some of the groups communicated with Gov. Walker’s campaign, mostly on policy issues. That wasn’t enough to bring charges, but it did allow Mr. Chisholm to launch an aggressive criminal investigation targeting Gov. Walker’s supporters, complete with home raids and everything-but-the-kitchen sink subpoenas.

These efforts had the intended effect: Funding for conservative policy advocacy dried up and Gov. Walker’s supporters were forced to redirect their energies from political activism to courtroom litigation.

This is not the first time the political left has used criminal law as a campaign device. It started with the prosecution of former Texas Republican Rep. Tom DeLay —who was finally exonerated in 2013 of trumped-up campaign-finance charges nine years after being charged. Another tactic has been to fund groups like the American Democracy Legal Fund, which has deluged Republican lawmakers with ethics complaints.

Yet the dubious innovation in Wisconsin was to target citizens, banking on the fact that they won’t or can’t fight back. The assumption held true for many groups. But not all of them.

The Wisconsin Club for Growth and its director, Eric O’Keefe, not only challenged the subpoenas directed at the Club, but also brought suit in federal court this year to vindicate their federal constitutional rights. (We represent the Club and Mr. O’Keefe in that action.) The investigation, they argued, was viewpoint-based retaliation for their advocacy in support of Gov. Walker’s agenda, in blatant violation of their First Amendment rights. The district court agreed and in May blocked the investigation, reasoning that the District Attorney Chisholm’s theory of “coordination” was unconstitutional and could only have been adopted in bad faith.

In September, however, a panel of the Seventh Circuit Court of Appeals reversed that decision, on the view that federal courts have no business interfering in state criminal investigations. While visibly distressed by the John Doe investigation, the three-judge panel assumed that the Club and Mr. O’Keefe could simply ask the state court overseeing the investigation for relief.

Easier said then done. While there is a state court overseeing one piece of Mr. Chisholm’s wide-ranging investigation, that court doesn’t exercise control over other conduct by Mr. Chisholm and his associates and doesn’t have the power to consider a First Amendment retaliation claim. And quashing a subpoena—the relief available in that state court—is no substitute for what the Constitution actually guarantees: freedom of speech without fear of government retaliation based on your viewpoint. In effect, the Seventh Circuit’s decision leaves John Doe’s victims out in the cold, so far as their First Amendment rights are concerned.

Unfortunately, Wisconsin may be an early indication of what’s to come. Just as the Delay prosecution touched off a dozen other politically motived cases, the Wisconsin John Doe investigation provides a template for similar mischief across the nation. It suggests that anyone can lob accusations of illegal “coordination” between an officeholder and his allies—and all a partisan prosecutor needs is evidence of a single private meeting or email to justify an intrusive and aggressive investigation. It’s that easy to tie your ideological opponents in knots for months or years on end. After Wisconsin, the temptation to use the law as a political weapon may prove irresistible.

The casualty is citizens’ ability to speak out on matters of public importance and interact with their elected representatives, rights which are at the very core of the First Amendment’s protections. Federal courts exist to enforce federal rights, particularly when they are under siege by state officials. If the federal judges shirk that duty, it will only embolden those bent on misusing criminal law to silence their opponents.

Messrs. Rivkin and Grossman are attorneys at the firm Baker Hostetler LLP. Mr. Rivkin served in the Justice Department and the White House Counsel’s Office in the Reagan and George H.W. Bush administrations.

Source: http://online.wsj.com/articles/david-b-rivkin-and-andrew-grossman-criminalizing-political-speech-in-wisconsin-1412979776

Russia’s actions in Ukraine clearly violate the rules of war

By David B. Rivkin Jr. and Lee A. Casey

While Russia’s aggression against Ukraine tramples the United Nations charter, Moscow gets a free ride on its other transgressions of international law. Few have focused, for instance, on how Russia’s military operations in Ukraine violate the 1949 Geneva Conventions. The failure to challenge this misconduct is profoundly wrong and damages the integrity of this whole body of law.

The Geneva Conventions are a great civilizational accomplishment, tempering how wars are waged. For years, they have been transgressed by non-state actors who fight out of uniform, target civilians, take hostages and engage in torture.  But these critical legal norms are far more threatened when such conduct is embraced (in action if not word) by a sovereign state and a party to the Conventions.

The fact that Russian troops operate in Ukraine in unmarked uniforms, or pretend to be civilians, is a significant Geneva violation. States can and do use commandos who operate with stealth and concealment, as the United States did in both Afghanistan and Iraq. There is a fundamental difference, however, between using special forces in an announced armed conflict and doing so while denying that one’s military is engaged at all, as Russia has done.

Moscow is trying to avoid political and legal responsibility for its actions — and Ukraine is not the only place it is prepared to act. Latvian analyst Janis Berzins has analyzed internal Russian military documents describing Moscow’s “new way of waging war” that includes undeclared wars, undercover destabilization, attacks on civilians to create false humanitarian crisis and psy-op operations. Moscow believes this style of waging war could be particularly effective against neighboring countries with large Russian-speaking populations.

Russia’s denials ring hollow. Moscow has inserted intelligence operatives, Spetsnaz personnel and other elite troops into the region, and some of these individuals have been apprehended by Ukrainian forces. Evidence of Russia’s involvement includes the Russian body armor these forces wear and the specialized and expensive Russian weapons they carry, such as AK-74 automatic rifles and Dragunov sniper rifles.

During the most recent fighting around Slovyansk, Russia’s stronghold in eastern Ukraine, hundreds of Russian personnel and irregulars deployed mortars, heavy machine guns and antitank weapons. The National Security Agency, NATO intelligence services and the Ukrainian government have also intercepted communications indicating that senior officers from Russia’s Southern Military District control Moscow’s operations in eastern Ukraine, as Secretary of State John F. Kerry discussed in meetings last week.

Moscow-led forces have also engaged in an intimidation campaign of assassination and torture against Ukrainian civilians, among the most serious Geneva offenses. Examples include Vladimir Rybak, a local government official in the Donetsk region and a strong supporter of the Ukrainian government, who was kidnapped, tortured and killed. His body was thrown into a river on the outskirts of Slovyansk.

In another palpable violation of the Geneva Conventions, which require military operations to be waged in ways designed to minimize collateral damage to noncombatants, Russian forces have staged assaults on police stations and government buildings in ways designed to maximize civilian casualties. This was done to discredit the Ukrainian government and provide a “humanitarian” justification for further Russian intervention.

Russian forces in eastern Ukraine have seized hostages, including Organization for Security and Co-operation in Europe observers. They have also violated the Geneva Conventions and the customary laws of war byrecruiting Ukrainian civilians and police personnel. In two regions of eastern Ukraine, Luhansk and Donetsk, about 50 percent of local police personnel have reportedly switched sides. The Ukrainian Security Service says Russian banks have been transferring funds to make daily payments to pro-Russian Ukrainians. .

While the responsibility for Russia’s actions in Ukraine begins with President Vladi­mir Putin and other Moscow leaders, the Geneva Conventions require that the Russian military be held accountable for its violations of the laws of war. The first step should be for the United States, NATO and the Ukrainian government to release all of the available information about the Russian offenses, including the names of all individuals involved. The second step should be sanctions that would prevent Russian military officers from traveling to any Western countries regardless of the purpose. No equipment sales or technology transfers to the Russian armed forces should be approved, and no Western military should buy Russian weapon systems or equipment.

Because military establishments, by their nature, value respect and esprit de corps, ostracizing Russia’s armed forces could have a significant impact on Moscow’s behavior, getting its attention in real and immediate ways. They would also underscore the strong Western commitment to upholding the laws of war in general and the Geneva Conventions in particular.

Source: http://www.washingtonpost.com/opinions/russias-actions-in-ukraine-clearly-violate-the-geneva-conventions/2014/05/06/74c8fcde-d22f-11e3-937f-d3026234b51c_story.html

David B. Rivkin Jr. and Lee A. Casey are partners in the Washington office of Baker & Hostetler; they served in the Justice Department under presidents Ronald Reagan and George H.W. Bush.