The Wisconsin Judicial Election is good for Democrats, but bad for democracy

My new piece in the Daily Beast, titled “Merit over Money: Judicial Elections Are a Mess—Here’s How to Fix the Problem”:

“On Tuesday evening, progressives were celebrating the results for the Wisconsin Supreme Court race. And for good reason: a 56 percent to 44 percent win for a liberal candidate, Rebecca Dallet, in a state that Trump had won is a big deal. But the event itself is nothing to celebrate. Judicial elections—and especially non-partisan judicial elections—are bad for law and democracy…”

I argue that merit selection is a better system for constitutional protections and an acceptable compromise with those who seek more accountability.

Political Questions and Courageous Answers

Here is my essay in Slate on what the Supreme Court should learn from last week’s Emoluments decision as it grapples with partisan gerrymandering.

Correcting one sentence: One key drafter, Gouverneur Morris, discussed this scandal at the Philadelphia Convention, and two major legal commentators cited it to explain the Emoluments Clause, suggesting that there was a particular concern about chief executives’ financial entanglements with foreign states.

Trump and Dowd may have attempted to obstruct justice with pardons.

The New York Times is reporting today that Dowd, Trump’s personal lawyer, floated the offer of pardons to Manafort and Flynn, implicitly some kind of deal for their silence.

“But even if a pardon were ultimately aimed at hindering an investigation, it might still pass legal muster, said Jack Goldsmith, a former assistant attorney general in the George W. Bush administration and a professor at Harvard Law School.

“There are few powers in the Constitution as absolute as the pardon power — it is exclusively the president’s and cannot be burdened by the courts or the legislature,” he said. “It would be very difficult to look at the president’s motives in issuing a pardon to make an obstruction case.”

The remedy for such interference would more likely be found in elections or impeachment than in prosecuting the president, Mr. Goldsmith added.”

I respectfully disagree, for reasons I’ve explained before here and following up counterarguments here. If a president could be guilty of selling pardons (bribery, surely!), he could be guilty of offering pardons to obstruct justice.

I still don’t think a president can be indicted while in office. Impeach and remove first, then prosecute. But I do think John Dowd could be in serious trouble. Attorney-client privilege does give him the privilege to attempt to obstruct justice.

Pixar v. Disney Bracket


Today, @smjxmj posted a Pixar v. Disney bracket on Twitter. It’s a great idea, but I thought the seeding structure was way off, and his results were mostly off. (His championship was Monsters Inc over Mulan. All-time great movies like Frozen and Moana faced off early. It also wasn’t clear who was a #2 seed, etc.) So I suggested seeding in an objective way, based on gross box office, rather than seeding by subjective quality. I thought this would set up some interesting quantity (of cash) vs. quality match-ups.

With my friend Josh Tate’s help (fellow legal historian with more twitter-ological chops than I have), you can vote on our brackets on Twitter! Find at @jedshug and @JCTate1215 to vote on Twitter polls.

Based on a little research, here are the seedings on the Pixar side, adjusted for inflation.

  1. Finding Nemo
  2. Dory
  3. Toy Story 3
  4. Toy Story 2
  5. Monsters Inc
  6. Coco
  7. Toy Story
  8. Inside Out
  9. Incredibles
  10. Up
  11. Cars
  12. Monsters U.
  13. Bug’s Life
  14. Wall-E
  15. Ratatouille
  16. Brave

Continue reading “Pixar v. Disney Bracket”

Princeton’s Politics and Polls Podcast

I was happy to speak with Sam Wang on Princeton’s Politics & Polls Podcast on Trump, Russia and Mueller. I had a chance to talk about Manafort/Gates, Flynn, Kushner/Qatar/Rosneft, the law of conspiracy, pardons, quo warranto, etc. I noted to Sam that one indication that Trump takes Mueller’s investigation seriously is that he had never referred to Mueller by name, by Twitter or otherwise. This podcast was recorded before Trump went after Mueller last weekend by name after McCabe was fired, which seems to signal an escalation of tensions.

The Fiduciary Executive: Sessions and Trump cannot fire Mueller

Here’s the second installment in my series with my friend and colleague Ethan Leib on the fiduciary limits on the executive branch, in Slate this week. Sessions should not be able to fire McCabe, and nor should he or Trump be able to fire Mueller, because of the fiduciary obligation under the Constitution and their oath of office to “faithfully execute” the law.

Here’s the legal procedural pay-off:

“American courts have given the language of “faithful execution” in the context of public officials enforceable meaning in past precedents, binding public officials to good faith and loyalty. For example, one case in federal court has held poultry inspectors at the Department of Agriculture to have enforceable public fiduciary obligations to the United States; another has held a former CIA agent to a fiduciary duty of confidentiality. It could be possible for Mueller to seek an injunction from a federal court based on these arguments to block his firing from any official acting for self-protection against the public interest.”

Hypocrisy alert: the death penalty

1. is calling for the execution of drug dealers.

2. Russian organized crime engages in drug trafficking.

3. Has Trump considered whether someone who launders money for Russian mobsters through NY real estate might be considered a kind of drug dealer/trafficker?

(Just to be clear, I am 100% opposed to the death penalty. I’m just noting the potentially glaring hypocrisy, similar to his hypocrisy about due process and the Central Park 5 he wanted to execute.)