Law School News

Updated: 1 hour 34 min ago

SCOTUS Will Hear Partisan Gerrymandering Case Litigated by Stephanopoulos and Informed by His Research

Mon, 06/19/2017 - 10:10
Justices to Hear Major Challenge to Partisan Gerrymandering Adam Liptak The New York Times June 19, 2017

WASHINGTON — The Supreme Court announced on Monday that it would consider whether partisan gerrymandering can violate the Constitution. The case could reshape American politics.

[...]

The new standard proposed by the challengers tries to measure the level of partisan politics in legislative maps by counting “wasted votes” that result from the two basic ways of injecting partisan politics into drawing legislative maps: packing and cracking.

Packing a lot of Democrats into a single district, for instance, wastes every Democratic vote beyond the bare majority needed to elect a Democratic candidate. Cracking, or spreading, Democratic voters across districts in which Republicans have small majorities wastes all of the Democratic votes when the Republican candidate wins.

In a 2015 article, Nicholas O. Stephanopoulos, a law professor at the University of Chicago and a lawyer for the plaintiffs, and Eric McGhee devised a formula to measure partisanship. The difference between the two parties’ wasted votes, divided by the total number of votes cast, yields an efficiency gap, they wrote.

Read more at: 

https://www.nytimes.com/2017/06/19/us/politic...

Faculty:  Nicholas Stephanopoulos

Omri Ben-Shahar Explains How Amazon Will Democratize Whole Foods

Fri, 06/16/2017 - 16:49
How Amazon Will Democratize Whole Foods Omri Ben-Shahar Forbes June 16, 2017

Amazon is said to have “sent a shockwave” through the grocery industry when it announced its plan to take over Whole Foods Market, the high end grocery chain. The immediate speculation surrounds the potential losers—mostly the dominant grocers like Walmart.

[...]

The biggest winners are the people who could not, in the past, afford Whole Foods, but now will. And they far outnumber the existing Whole Foods customers. Despite its hype, Whole Foods is still a small niche grocer, capturing only 1.7 percent share of the grocery store market. It has been trying to reach broader sectors of less affluent shoppers, but with diminishing success. With the steady expansion of leading supermarkets like Walmart and Krogers into the “corporate organics” arena, Whole Foods’ sluggishness was perhaps the ultimate cause for the Amazon sale.

Amazon has long been aiming to harness its efficient inventory and delivery systems into becoming a major player in the grocery business. Now, its grocery line will no longer be generic, but would instead carry the pizzazz of perhaps the most prestigious grocery brand in the country. With low-cost warehouse and distribution network and less labor-intensive in-store service (maybe replacing friendly bakers and baristas with robots), costs could decline significantly. Amazon might eventually shed Whole Foods’ overpriced reputation, commonly nicknamed by those unable to afford its price tags as “whole paycheck.” Amazon has a consistent track record of pricing goods so close to their cost, operating on slim, almost invisible, profit margins. This might be the opportunity for mainstream consumers—especially those in the Amazon Prime network—to venture into the grazing fields of select foods.

Read more at: 

https://www.forbes.com/sites/omribenshahar/20...

Faculty:  Omri Ben-Shahar

Martha C. Nussbaum on Anger and Forgiveness (Audio)

Fri, 06/16/2017 - 12:15
Ep19 – On Anger and Forgiveness Philosophy Bakes Bread June 15, 2017

n this nineteenth episode of the Philosophy Bakes Bread radio show and podcast, co-hosts Dr. Anthony Cashio and Dr. Eric Thomas Weber interview Dr. Martha Nussbaum of the University of Chicago on the topic of “Anger and Forgiveness,” the subject of her recent book by that name, which is available both as a printed book and as an audio book. Dr. Nussbaum has been named one of the most influential living philosophers. She was the recipient of the 2016 Kyoto Prize, and then, in 2017, gave the Jefferson Lecture, the highest honor that the U.S. government can bestow in the humanities. The video of her lecture is available online here.

Dr. Nussbaum has written many books and is known especially for the “capabilities approach” to human development, such as in her 2000 book, Women and Human Development: The Capabilities Approach, and later in Frontiers of Justice: Disability, Nationality, Species Membership (2006), as well as Creating Capabilities: The Human Development Approach, released in 2011. Dr. Nussbaum is also known for her work on emotions, such as in Political Emotions: Why Love Matters for Justice, as well as for her work on higher education, as in Not for Profit: Why Democracy Needs the Humanities.

Listen for our “You Tell Me!” questions and for some jokes in one of our concluding segments, called “Philosophunnies.” Reach out to us on Facebook @PhilosophyBakesBread and on Twitter @PhilosophyBB; email us at philosophybakesbread@gmail.com; or call and record a voicemail that we play on the show, at 859.257.1849. Philosophy Bakes Bread is a production of the Society of Philosophers in America (SOPHIA). Check us out online at PhilosophyBakesBread.com and check out SOPHIA at PhilosophersInAmerica.com.

Read more at: 

https://www.philosophersinamerica.com/2017/06...

Faculty:  Martha C. Nussbaum

Omri Ben-Shahar on the Curious Battle Over the Nutrition Label

Fri, 06/16/2017 - 11:12
FDA Versus Michelle Obama: The Curious Battle Over The Nutrition Label Omri Ben-Shahar Forbes June 16, 2017

It is hard to think of a single regulation that all groups—liberals, conservatives, even anarchists—love. But there is one, and it has just been dealt a serious blow by Trump’s FDA. It is the Nutrition Facts label on food, a regulation that many consider the cornerstone of a good diet. The FDA decided this week to roll back a new regulation--a Michelle Obama legacy--that would have modernized the look of the nutrition label.

The fight over the nutrition label is a story of great irony, because—notwithstanding the adoration it receives—in its twenty-five years of existence it has not affected how people eat. The hard work that the Obama administration put to reform the nutrition label would not have made a difference. There may be good reasons to criticize the Trump FDA for sacking various Obama-era healthy eating initiatives, but the nutrition label crusade is not worth the candle.

The legend of the nutrition label is a fascinating story of regulatory hype devoid of supporting evidence. Launched a generation ago, when Americans were getting fatter, the label looked like a great idea. Give people information about the content of the food to help them make more informed and healthy eating choices. The label prominently displayed the (obsessively counted) caloric score, accompanied by measures of fat, carbs, sodium, and cholesterol. It was subsequently tweaked—less clutter, better font, more realistic “serving size”—making it one of the most familiar templates of disclosure in our society.

Read more at: 

https://www.forbes.com/sites/omribenshahar/20...

Faculty:  Omri Ben-Shahar

Daniel Hemel and Eric Posner: "The Case for Obstruction Charges"

Thu, 06/15/2017 - 16:03
The Case for Obstruction Charges Daniel Hemel and Eric Posner The New York Times June 15, 2017

Robert S. Mueller III, the special counsel investigating Russian interference in the 2016 election, appears to be looking into whether President Donald Trump obstructed justice.

It is not easy to prove that a president committed the crime of obstruction, but if publicly reported facts are accurate, Mr. Mueller is likely to find that he has a strong case against Mr. Trump.

Obstruction of justice is a serious offense that lay at the core of Bill Clinton’s impeachment and forced the resignation of Richard Nixon. The Watergate-era cliché “The cover-up is worse than the crime” misses the point that the cover-up is a crime. Congress has made it a felony for any person — including the president — to “corruptly” interfere with a proceeding before a federal agency. Powerful evidence has emerged in recent weeks suggesting that President Trump did indeed interfere with the F.B.I. investigation of Mr. Trump’s former national security adviser, Michael Flynn, which is part of the broader Russia inquiry.

Read more at: 

https://www.nytimes.com/2017/06/15/opinion/th...

Faculty:  Daniel Hemel Faculty:  Eric A. Posner

Craig Futterman Speaks at Press Conference for Lawsuit over Federal Oversight of Chicago Police (Video)

Thu, 06/15/2017 - 10:05
Lawsuit, citing ‘thin blue line,’ seeks federal court oversight of CPD Jon Seidel, Fran Spielman and Mitch Dudek Chicago Sun-Times June 14, 2017

Accusing Mayor Rahm Emanuel of trying to cut a “back-room deal” with U.S. Attorney General Jeff Sessions, lawyers for Black Lives Matter Chicago and other community groups filed a class-action lawsuit Wednesday seeking federal oversight of the city’s police department.

The 132-page complaint immediately blew up the debate over police reform in Chicago. It may force City Hall to the negotiating table after the mayor tried to abandon the idea of a federal monitor. Or, it may lead to a lengthy court battle.

Read more at: 

http://chicago.suntimes.com/news/black-lives-...

Faculty:  Craig B. Futterman

Craig Futterman: If the City is Willing to Follow Through on Police Reform, "We Can Do It Tomorrow"

Thu, 06/15/2017 - 09:46
Civil Rights Groups Sue Chicago Over Abuses by Police Richard A. Oppel Jr. The New York Times June 14, 2017

After the lawsuit was filed Wednesday, the city’s corporation counsel, Ed Siskel, said the city agreed that reforms were necessary, and he criticized the Department of Justice for not following through “with their commitment to a consent decree.”

“The substance of the reforms that we are all trying to achieve is not really in question,” Mr. Siskel said. “It is matters of process that we are discussing.”

He added: “What is not in any doubt is that the road we are on and committed to is a road towards real and lasting, sustainable reform in the police department, and we are not getting off that road.”

But Craig B. Futterman, a University of Chicago law professor who is one of the lawyers representing the plaintiffs in the lawsuit, said if the city really was willing to follow through on its pledge to negotiate a federal consent decree, the new lawsuit gave them that opportunity.

“We can do it tomorrow,” he said.

Read more at: 

https://www.nytimes.com/2017/06/14/us/civil-r...

Faculty:  Craig B. Futterman

Futterman: Without Police Oversight "We'll Be Having the Same Conversation After the Next Scandal"

Thu, 06/15/2017 - 09:36
Federal lawsuit seeks to force court oversight of Chicago police reform Dan Hinkel The Chicago Tribune June 14, 2017

The roughly 130-page lawsuit — which seeks class-action status — invokes police uses of force dating to the 1968 Democratic National Convention and the killing of Black Panther Fred Hampton in arguing that violence and racial discrimination remain structural features of the department to this day. The suit contends that police routinely beat, deploy Tasers on and shoot African-Americans and Latinos with the protection of a "code of silence" and little risk of discipline.

Though the suit seeks money for the individual plaintiffs, it is distinct from most litigation filed against police because it also seeks an injunction to force the department to adopt reforms. Those reforms are not fully specified in the lawsuit but would be hammered out if the litigation succeeds.

Indeed, the lawsuit's chief goal is an order empowering a judge to enforce reforms that could include those endorsed by the Obama administration's U.S. Department of Justice in its report from January criticizing Chicago police as badly trained, poorly supervised and prone to using excessive force, said Craig Futterman, a University of Chicago law professor and a member of the plaintiffs' legal team.

Without court oversight, Futterman said, "We'll be having the same conversation after the next scandal."

Read more at: 

http://www.chicagotribune.com/news/local/brea...

Faculty:  Craig B. Futterman

Craig Futterman on Police Reform Lawsuit: "This Is a Real Test for the Mayor"

Thu, 06/15/2017 - 09:30
Court oversight of Chicago police reforms sought in lawsuit Michael Tarm The Washington Post June 14, 2017

Several leading community groups, including a local Black Lives Matter organization, filed a class-action lawsuit against Chicago on Wednesday in a bid to bypass or even scuttle a draft agreement between the city and the U.S. Department of Justice that seeks to reform the nation’s second largest police force without federal court oversight.

The 132-page lawsuit filed in U.S. District Court in Chicago argues that an overhaul of Chicago’s 12,000-officer force in the wake of a damning civil rights report in January can’t work without the intense scrutiny of a court-appointed monitor answerable to a judge.

[...]

Craig Futterman, a University of Chicago law professor and one of the more than a dozen plaintiff attorneys involved in the legal action, said reports about the draft agreement — which he called “a backroom deal without any teeth” — influenced the decision to sue now.

“This is the community stepping up when the government refuses to act and when it has long been clear that the city is incapable of acting on its own,” he said.

Read more at: 

https://www.washingtonpost.com/national/group...

Faculty:  Craig B. Futterman

Craig Futterman on Police Reform Lawsuit: "Enter A Binding Agreement With Us Today"

Thu, 06/15/2017 - 09:26
Black Lives Matter Files Lawsuit to Force Chicago Police Reforms Amanda Vinicky Chicago Tonight June 14, 2017

“This is the same Jefferson Sessions who has demonstrated his lifelong hostility to the rights of black and brown folk,” said the plaintiff’s lead attorney, Craig Futterman, a University of Chicago law professor and founder of the Civil Rights and Police Accountability Project at the Mandel Legal Aid Clinic. “The ball is now in the mayor’s court. If Mayor Emanuel is committed to real change in Chicago, if the mayor is really committed to ending Chicago Police Department’s pattern and practice of civil rights violations, committed to ending the lack of police accountability that has caused so much harm to so many people (including the thousands of good officers who do their thing), he’s got to live up to his commitment. And that means: Enter a binding agreement with us today.”

Read more at: 

http://chicagotonight.wttw.com/2017/06/14/bla...

Faculty:  Craig B. Futterman

Daniel Hemel Explains the Case that Trump Committed Obstruction of Justice

Thu, 06/15/2017 - 09:13
The case that President Trump committed the crime of obstruction of justice, explained Daniel Hemel Vox June 15, 2017

Special counsel Robert Mueller is now investigating whether President Trump has committed obstruction of justice, the Washington Post reports. This news should shock precisely no one: Mueller’s mandatespecifically authorizes him to investigate obstruction of justice allegations arising out of his probe. But the report underscores the seriousness of the obstruction allegations against Trump — and the strength of the evidence already amassed.

In a nutshell, the case against President Trump consists of the following: The President intimated to then-FBI Director James Comey in February that Comey ought to shut down the bureau’s investigation of former Trump national security adviser Michael Flynn. When Comey rebuffed him, President Trump sought to enlist Director of National Intelligence Daniel Coats in an effort to stop the Flynn probe.

Making matters worse, President Trump then fired Comey and said publicly that the firing was related to the Russia investigation — a statement that might be interpreted as an implicit threat to Comey’s replacement that he should bring the probe to a halt if he wanted to keep his job. Whether or not any of these actions would amount to obstruction in isolation, they sum up to a course of conduct that might very well place President Trump on the wrong side of the criminal law.

Trump may be shielded from criminal indictment by virtue of his status as president, and he may remain shielded from impeachment by virtue of the fact that his own party controls both chambers of Congress. On the law, though, the argument that Trump is guilty of obstructing the FBI’s Flynn probe is quickly gathering steam.

Read more at: 

https://www.vox.com/the-big-idea/2017/6/8/157...

Faculty:  Daniel Hemel

Martha C. Nussbaum Interviewed on Hate and Gay Rights (in Korean)

Tue, 06/13/2017 - 14:08
Those who fear unwanted changes would seek victims who are like witches Ahn Hee Kyung Kyunghyang Shinmun June 12, 2017

2017년 서울국제여성영화제에서 주최한 청년여성 영상 제작 프로젝트에 대한민국의 20대 여성이 그들의 문제를 다룬 공동체영화 7편을 선보였다. 영화는 귀기울여주는 ‘안전한 관객’ 앞에서 가부장 사회에 대한 뜨거운 분노를 표현한다. 그들은 성적 불평등을 토로하는 데 있어 자신의 아버지라 해도 오빠라 해도 이 사회의 남성이 받아야 할 비난의 화살을 비켜갈 수 없다는 강한 분노를 드러냈다. 이렇듯 여성혐오 못지않게 남성혐오 또한 우리 사회 속에서 끓고 있다. 닭이 먼저냐 달걀이 먼저냐 할 것 없이 대립의 날이 날카로워진 상태다. 여기에 지난 대선토론에서 불 지펴졌고, 군 동성애자 색출 논란으로 사회문제화되고 있는 소수자에 대한 혐오는 더 이상 없는 척 덮어버리지 못하는 단계가 되었다. 세계 정세 또한 혐오정치가 기승을 부린다. 미국의 도널드 트럼프와 프랑스의 마린 르펜이 이민자 혐오로 대중을 편갈랐고, 수니파 극단주의 무장단체 이슬람국가(IS)가 동성애자를 처형하며 권력 강화에 나섰다. 약자는 언제까지 ‘나중에, 다음에’라는 약속에 가만히 있어야 할까?

21세기를 대표하는 세계의 지성 중 한 명인 법철학자 마사 누스바움(70)을 지난달 9일 만나 인터뷰했다. 누스바움은 노벨 경제학상 수상자인 아마티아 센과 함께 국내총생산(GDP)이 아닌 인간의 행복에 주목하는 ‘역량이론’을 창시했다. 현대사회에서 작동하고 있는 다양한 혐오의 본질을 추적하며 사회구조가 삶의 존엄을 지켜낼 수 있는 방향은 무엇인지 함께 짚어봤다.

Read more at: 

http://news.khan.co.kr/kh_news/khan_art_view....

Faculty:  Martha C. Nussbaum

Eric Posner and Daniel Hemel: "Meta-Obstruction of Justice"

Tue, 06/13/2017 - 09:41
Meta-Obstruction of Justice Eric Posner and Daniel Hemel Ericposner.com June 13, 2017

Can a President be guilty of obstruction of justice for firing a special counsel who is investigating whether the President committed obstruction of justice?

The question might not be hypothetical. A friend of the President, Newsmax Media CEO Christopher Ruddy, told PBS NewsHour Monday evening that Trump is “perhaps considering terminating the special counsel.” Ruddy reportedly reiterated that view in a text message to the Washington Post.

As a constitutional matter, Trump would probably have to direct the Deputy Attorney General, Rod Rosenstein, to do the firing. If Rosenstein refused, then President Trump could fire Rosenstein. Ultimately, he could almost certainly find someone at the Justice Department (or elsewhere in his Cabinet) who would issue the order to terminate Mueller, though this might require a few more firings along the way.

Read more at: 

http://ericposner.com/meta-obstruction-of-jus...

Faculty:  Eric A. Posner Faculty:  Daniel Hemel

The Washington Post on Stephanopoulos's Efficiency Gap

Mon, 06/12/2017 - 13:11
Supreme Court could tackle partisan gerrymandering in watershed case Robert Barnes The Washington Post June 12, 2017

Whitford and his fellow plaintiffs asked the Wisconsin court to use a new approach to gauge how Republican mapmakers hurt Democrats with the main tools of gerrymandering: “packing” and “cracking.” These refer to packing like-minded voters, such as supporters of the same party, into a limited number of districts or cracking their influence by scattering them across districts in numbers too small to make an impact.

University of Chicago law professor Nicholas O. Stephanopoulos and his political scientist colleague Eric McGhee, of the Public Policy Institute of California, called their theory the “efficiency gap.” Under their approach, every voter packed into a district above the threshold needed to elect a candidate from his party creates a “surplus” vote. And someone in a cracked district, who votes for a candidate that is unable to win, is a “lost” vote. Surplus and lost votes are considered wasted votes.

The efficiency gap measures the difference between the wasted votes of the two parties in an election divided by the total number of votes cast. In an ideal scenario, where individual votes have as much impact as possible, the efficiency gap would be zero. The gap in Wisconsin was 13.3 percent in 2012.

Read more at: 

https://www.washingtonpost.com/politics/court...

Faculty:  Nicholas Stephanopoulos

Los Angeles Review of Books: "Sex and the Constitution" is "Titillating and Humorous"

Mon, 06/12/2017 - 12:51
A “Christian Nation” with an Enlightenment Constitution Alyson Claire Decker Los Angeles Review of Books June 10, 2017

UNLIKE THE BOOKS usually prescribed for Constitutional Law classes, Geoffrey R. Stone’s Sex and the Constitution is rather titillating and humorous. From descriptions of ancient Greek dildos to a charming story of Supreme Court law clerks having to describe, out loud, the erotic films that were being screened in preparation for various obscenity cases to Justice Harlan, who was losing his eyesight, there is something for everyone — including the legal practitioner, the history buff, and the casual reader. The vivid descriptions of hard-core pornography can become tiresome, though, and even detract from the focus of the book: the application of the Constitution to “sex” laws.

Sex and the Constitution is divided into two sections. The first deals with the history of how we have celebrated, condemned, and attempted to control sex and sexual expression from the Ancient Greeks to the legacy of Anthony Comstock (more on him later). The second half focuses on the real question posed by the book: how has the Constitution, which says nothing expressly about sexual rights and freedoms, become the primary method by which reproductive and homosexual rights are established and protected in the United States? One might ask why Stone spends so much time exploring the sexual norms of ancient civilizations and early America, but it is precisely because the Constitution does not enumerate sexual rights that historical context has become increasingly relevant. In fact, multiple Supreme Court justices have turned as far back as antiquity to ground their decisions in historical and traditional cultural precedents.

Read more at: 

https://lareviewofbooks.org/article/a-christi...

Faculty:  Geoffrey R. Stone

The Atlantic Dives Deep Into Rappaport's Work on How Insurers Can Influence Police

Mon, 06/12/2017 - 12:27
How Insurance Companies Can Force Bad Cops Off the Job Rachel B. Doyle The Atlantic June 10, 2017

While much attention has been paid to the issue of police misconduct —with 14 cities pursuing consent decrees with the Department of Justice—what is less well known is how liability insurers can put a private-sector spin on reform, by demanding structural changes in the police departments that they cover. In April, a paper by the University of Chicago law professor John Rappaport detailed the effects these companies have had on police forces across America.

In Wisconsin, for instance, an insurer in 2002 recommended new training and supervision of SWAT teams in the Lake Winnebago area in the aftermath of two botched drug raids. In 2010, a police chief in Rutledge, Tennessee, was fired to appease the town’s liability insurer after assault allegations were leveled against him. In many other states, police forces have been asked to adopt new policies regarding body cameras, strip searches, and use of force.

Although an outside company exerting influence on local police may not seem compatible with good governance, there are hidden advantages to insurers’ monitoring police departments and suggesting improvements. For one, insurance companies are apolitical. “I think the debates about policing have become so fraught and so inflammatory,” Rappaport told me. “To have this big, well-heeled institution saying, ‘We’re not interested in that debate, we just want to get those numbers down’—it can make reform more palatable because it takes the electricity out.”

Read more at: 

https://www.theatlantic.com/politics/archive/...

Faculty:  John Rappaport

Eric Posner: Alleged FBI Interference Unlikely to be Resolved in Court, "Ultimate Remedy is Political"

Fri, 06/09/2017 - 10:09
Democrats underestimate legal hurdles to bringing down Trump David J Lynch, Sam Fleming and Demetri Sevastopulo Financial Times June 9, 2017

The former FBI director on Thursday told the Senate intelligence committee that he is “sure” that special counsel Robert Mueller is considering whether the president obstructed justice by asking Mr Comey to stop investigating former national security adviser Michael Flynn. 

For Senator Cory Booker, who tweeted that Mr Comey “established a foundation” for charging the president with a crime, that raised the prospect of using legal means to hold the president accountable. 

But the controversy over Mr Trump’s alleged interference in an FBI investigation is unlikely to be resolved in court. “The ultimate remedy is political,” says Eric Posner, a constitutional law specialist at the University of Chicago.

Read more at: 

https://www.ft.com/content/1184fc7a-4c90-11e7...

Faculty:  Eric A. Posner

Eric Posner: Comey's Testimony Strengthened the Case for Obstruction

Fri, 06/09/2017 - 10:00
Is Trump closer to obstruction of justice? Joel Gunter BBC June 9, 2017

Eric Posner, a law professor at the University of Chicago, also said that Mr Comey's oral testimony had changed the legal picture.

"Comey may not have added specific pieces of information, but the way he presented himself and consistency of his account, and the coherency of the account, all of these things are important," he said.

"In his oral testimony, he made it clearer that he believed Trump was trying to obstruct justice. He said that when Trump used the word hope, he understood that to be a command of some sort, and that strengthens the case for obstruction.

"It was a borderline case before, now it is somewhat stronger."

Read more at: 

http://www.bbc.com/news/world-us-canada-40208812

Faculty:  Eric A. Posner

Eric Posner on Whether the President Can Commit the Crime of Obstruction of Justice

Fri, 06/09/2017 - 09:53
Can the President Commit the Crime of Obstruction of Justice? Eric Posner Ericposner.com June 9, 2017

Alan Dershowitz says no:

The president can, as a matter of constitutional law, direct the attorney general, and his subordinate, the director of the FBI, tell them what to do, whom to prosecute and whom not to prosecute. Indeed, the president has the constitutional authority to stop the investigation of any person by simply pardoning that person.

His argument is that the obstruction of justice statutes can’t apply to the president because the president possesses the constitutional authority to stop an investigation—by issuing an order to the attorney general or FBI director, by firing them if they do not obey the order, or by pardoning the person under investigation. Any interpretation of the obstruction of justice statute that blocked this authority would violate the Constitution. (Dershowitz agrees that Congress can impeach the president for obstruction of justice but only because impeachment is a political process; on this, see below.)

This argument is superficially appealing but I don’t think it’s right. To see why, imagine that Congress passes a statute that says (for example): “the president may not order the FBI director to stop an investigation of the president or any other executive branch official.” If Dershowitz is right, this statute would violate the Constitution and be struck down by a court.

Read more at: 

http://ericposner.com/can-the-president-commi...

Faculty:  Eric A. Posner

Daniel Hemel: "Comey’s Testimony Strengthened the Case that President Trump Obstructed Justice"

Fri, 06/09/2017 - 09:49
Comey’s testimony strengthened the case that President Trump obstructed justice Daniel Hemel Vox June 9, 2017

“I take the president at his word that I was fired because of the Russia investigation,” former FBI Director James Comey told the Senate Intelligence Committee on Thursday. But he specifically declined to say, during his much-anticipated testimony, whether President Trump’s request that the bureau back off its investigation into former National Security Adviser Michael Flynn rises to the level of obstruction of justice.

Still, Comey’s testimony, as well as the written statement that preceded it and the testimony of other intelligence chiefs a day earlier, bring us closer to determining whether President Trump has committed obstruction. In a nutshell: The case that President Trump has violated federal criminal law is substantially stronger than it was at the beginning of the week, though it is still not open-and-shut.

And while the constitutional standard for impeachment and removal—“high Crimes and Misdemeanors”—is much disputed, there is widespread agreement that the phrase encompasses the crime of obstruction.

Trump may be shielded from criminal indictment by virtue of his status as president, and he may remain shielded from impeachment by virtue of the fact that his own party controls both chambers of Congress. On the law, though, the argument that Trump is guilty of obstructing the FBI’s Flynn probe is quickly gathering steam.

Read more at: 

https://www.vox.com/the-big-idea/2017/6/8/157...

Faculty:  Daniel Hemel

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