Emoluments case It's my understanding that the Trump Administration is or was facing two emoluments related cases. The first regarded a hotel and the case was dismissed. The second was brought by 198 members of Congress and I can't find out any current information about it. The last thing I read was in April 2019. What's the current situation with regard to this case?
According to this CNBC story the case brought by members of Congress (Blumenthal v. Trump) was dismissed for lack of standing by a three-judge panel at the Circuit Court level. As reported earlier a federal district court judge had allowed the case to proceed. This 2017 Politico story reported on the dismissal of an earlier suit on the same issue, also for lack of standing. The AP story &quot;Supreme Court ends Trump emoluments lawsuits&quot; reports that in Jan 2021 the US Supreme Court dismissed remaining cases on the issue as moot, since Trump was no longer President. In the piece &quot;Supreme Court Ducks an Opportunity on Trump Emoluments Cases&quot; by Ciara Torres-Spelliscy of the Brennan Center, the author reviewed the history of the constitutional provisions, expressed the view that rump had violated them, and suggested that new legislation should be passed to deal with any future cases of a similar sort. So far as I know, no such legislation has been introduced to date.
This is one of the things Martha Stewart was convicted of. 18 USC 1001 is the US federal law requiring truthfulness. That statute forbids you to falsify, conceal, or cover up a material fact. One limitation on how broad this law is, is that it has to be a matter "within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States". If your neighbor is an FBI agent and he asks if you're the one who broke his window, and you lie, that's not a federal matter. Another limitation is that the lying has to be material. The essential part of the law is subsection (a). Subsection (b) then states an exception: (b) Subsection (a) does not apply to a party to a judicial proceeding, or that party’s counsel, for statements, representations, writings or documents submitted by such party or counsel to a judge or magistrate in that proceeding. Then you also owe a lesser duty of truthfulness to the legislature. Taking note of US. v. Yermian, it is not required that the person you lie to be a federal officer. Yermian lied to his employer, who was a defense contractor, and the fact that the relevant form was submitted to the government for scrutiny is what made it a matter in federal jurisdiction. Comparing the wording of 1001 to the perjury statute, the operative expression for perjury involves statements "which he does not believe to be true", we can see that the perjury statute requires telling the literal truth (see Bronston v. US), which allows so-called lies of omission (of a particular subtype: much more could be said about that). In contrast the lying statute forbids both literally false statements and concealing of the truth. I don't have cases at my fingertips that indicate how broad your truthful answers have to be, for example if you think the FBI is trying to put away a friend and ask you about what he did on June 14, and you know that he did a bad thing on June 13, would it be lying in the relevant sense to conceal that fact which they didn't ask about. [ADDENDUM] A session of perusing cases has led to a tiny bit of further information. A literal reading of the statute says that you are in violation of the law if you falsify a fact (sloppy epistemology, unless it refers just to altering records and evidence), or conceal a fact, and the courts recognise this as a fundamental division. As for falsifying, the way that has been applied is to refer to cases where the accused makes a statement which asserts something that he knows to be untrue. Thus, saying "No" to a question when the truth is "Yes" is a violation. A propos concealment, in US v. Diogo 320 F.2d 898 the court states that False representations, like common law perjury, require proof of actual falsity; concealment requires proof of wilful nondisclosure by means of a 'trick, scheme or device.' This case is pre-Bronston so there is mixing of concepts from perjury law and lying law, which would not happen now, but we can steering clear of their perjury citations. The crucial fact is that accused(s) were technically married in New York, for immigration purposes, and they were accused of a 1001 violation for having indicated that they were married. Part of the government's case was that such a marriage is not valid, and the court rejected that conclusion. The government's second prong was to maintain that the court "should affirm appellant's convictions on a theory of concealment", and this too the court rejected, saying "proof of their ulterior motives in marriage would not be tantamount to proof of willful and knowing concealment of these material facts". What they said on the forms was literally true, and they did not have a duty to volunteer information that they probably knew the government was interested in. Contrarily in a later case, US v. Zalman 870 F.2d 1047 we are told that the underlying purpose of a marriage is a material fact which bears upon the validity of the marriage, and that any false or fraudulent misrepresentation regarding the actual purpose of a marriage in order to gain status as a resident of the United States can be punished under 18 U.S.C.A. § 1001 so you have to be more truthful than the literal truth standard. There are also circumstances where there is an independent duty to give information, such as reporting income to the IRS. In US v. Hernando Ospina 798 F.2d 1570 the court maintained It is clear that in order to support a section 1001 concealment conviction there must be a legal duty to disclose the facts the defendant was convicted of concealing citing US v. Tobon-Builes 706 F.2d 1092, where again there was a legal duty to report "existence, origin, and transfer of approximately $185,200 in cash". In other words, it is not clear what information you are allowed to not volunteer when asked a question in a federal matter.
First of all, to clarify some numbering, HR 4635 (107th Congress) was not actually passed. The language was passed as part of HR 5005, becoming Public Law 107-296, and this provision now appears at 49 USC 44921. The exact text of this provision is: A Federal flight deck officer shall not be liable for damages in any action brought in a Federal or State court arising out of the acts or omissions of the officer in defending the flight deck of an aircraft against acts of criminal violence or air piracy unless the officer is guilty of gross negligence or willful misconduct. The language makes it clear that this is only referring to civil liability. So, if the officer is defending the flight deck, and they are sued for damages resulting from their actions, the plaintiff will not win (assuming the law is correctly applied). But this law says nothing about whether or not they can be prosecuted for a crime. In any case, the officer in your example does not appear to have been defending the flight deck, so this law wouldn't apply at all. In your example, the officer's defense against a murder charge would probably be based on defense of others. There is a discussion on Justia. It seems that a key question would be whether shooting the unruly passenger was proportional - was there a reasonable fear that the passenger was actually going to kill someone?
First of all, Masterpiece Cakeshop v. Colorado Civil Rights Commission 584 U.S. ___ (2018) (Docket via Justia) was not settled on the merits. The Commission decision against the cake maker was overturned on procedural grounds, and no final decision on the merits has been made to date, to the best of my knowledge. And as Trish points out, the baker claimed that the law was, in effect, forcing him to use his individual artistic talents to make a statement endorsing a view that he deemed religiously wrong. Note that anti-discrimination laws are not an inherent right, they are statutes, created in the US by Congress and the state legislatures, and they prohibit just what the legislators have chosen to prohibit. For most of the history of the US there were no such laws, and Congress could repeal them tomorrow if it chose. So in a sense the only real reason why the laws grant certain religious exemptions is because Congress (or the various state legislatures) has said so. The actual exemption is found in 42 U.S. Code § 2000e–1 (a) which provides that: This subchapter shall not apply to an employer with respect to the employment of aliens outside any State, or to a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities. Thus it exempts a &quot;religious corporation, association, educational institution, or society&quot; from complying with that part of the anti-discrimination law that refers to employment. That would particularly be 42 U.S. Code § 2000e–2 (a) which provides that: (a) Employer practices -- It shall be an unlawful employment practice for an employer— (a) (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or (a) (2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin. There is a further similar but more limited exemption in 42 U.S. Code § 2000e–2 (e) It would pretty obviously violate the free exercise clause to require a religious organization to hire, say, priests, ministers, or other religious leaders regardless of religion. But the exemption goes farther than that. A church may discriminate on religion, or on race or sex, say, in hiring janitors or other people whose functions have nothing to do with religion. Nothing in the US Constitution requires that broad an exemption. But on the other hand, nothing forbids it either. That was the decision of Congress, and was no doubt in part the product of a political compromise. There is a long history in the US of providing churches and other religious organizations a degree of exemption from ordinary laws, and this is in line with that tradition. Beyond that, why this particular exemption and not a somewhat narrower one was chose, is a matter of politics, not law. The question asserts: Government sanctioned religions prayer is already illegal per &quot;Engel v. Vitale&quot;. That is an over-broad reading of Engel v. Vitale, 370 U.S. 421 (1962). In that case (as the Wikipedia article puts it): the Court ruled that it is unconstitutional for state officials to compose an official school prayer and encourage its recitation in public schools, due to violation of the First Amendment. ... The Court held that the mere promotion of a religion [by the government] is sufficient to establish a violation, even if that promotion is not coercive. The case focused on the fact that the government had composed the text of the prayer in question, and that encouragement to recite it was a matter of official government policy. That is quite different from permitting private individuals or organizations to say voluntary prayers, or make hiring decisions based on religious distinctions.
The judgment in Students for Fair Admissions Inc. v. President and Fellow of Harvard College, 600 U.S. ___ (2023) was in relation to relief sought by the plaintiffs against Harvard and University of North Carolina. This is more apparent by reading the judgments below. See e.g. 397 F. Supp. 3d 126 (D. Mass. 2019). SFFA seeks &quot;declaratory judgment, injunctive relief, attorneys' fees, and costs&quot; against the defendant &quot;President and Fellows of Harvard College (Harvard Corporation).&quot; SFFA sought the same remedies against University of North Carolina: 567 F. Supp. 3d 580 (M.D.N.C. 2021). Thus, there is no order against the federal executive. The federal executive can continue providing funding. It is Harvard and U.N.C. that are enjoined.
You would think so, but no While at first glance, President Trump sending a staff member to testify under oath in his place (to nullify any personal risk of perjury?) appears to epitomize the concept of &quot;hearsay&quot;-- a statement that: (1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement --there are some subtle but important distinctions and exceptions in play. I'm going to list them off in increasing order of relevance. FOIA penalties are civil, not criminal The official DOJ website lists off the penalties for Freedom of Information Act violations: The court may award reasonable attorney fees and other litigation costs against the government when the complainant substantially prevails. See 5 U.S.C. Sec. 552(a)(4)(E). Action Against Individual Employees: Sanctions may be taken against individual agency employees who are found to have acted arbitrarily or capriciously in improperly withholding records. Additionally, the court must award attorney fees and other litigation costs against the government. When the statutory requirements are found by the Court to have been met, the Merit Systems Protection Board (MSPB) must promptly initiate a proceeding to determine whether disciplinary action is warranted against the office or employee who is primarily responsible for the withholding. The MSPB, after investigating and considering the evidence, submits its findings and recommendations to the agency concerned which then is required to take the corrective action recommended by the Board. See 5 U.S.C. Sec. 552(a)(4)(F). Additionally, there now exists independent jurisdiction for such MSPB investigations under 5 U.S.C. Sec. 1206(e)(1) (1982). Failure to comply with a court order to produce the records in question may also result in punishment for contempt for the responsible employee. See 5 U.S.C. Sec. 552(a)(4)(G). So the strongest penalty against any individual government official who violated FOIA would be losing their job, or civil contempt of court. In principle the prohibition against hearsay applies equally to civil cases as criminal ones; in practice, because the stakes are lower, courts may take a somewhat looser attitude towards hearsay in civil cases than they would in a similar criminal case. Rule 807(a), &quot;Residual Exceptions&quot; Rule 807(a) gives courts large latitude to determine whether or not to admit hearsay evidence: (a) In General. Under the following conditions, a hearsay statement is not excluded by the rule against hearsay even if the statement is not admissible under a hearsay exception in Rule 803 or 804: (1) the statement is supported by sufficient guarantees of trustworthiness–after considering the totality of circumstances under which it was made and evidence, if any, corroborating the statement; and (2) it is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts. In this situation, the presiding judge, Reggie Walton of the D.C. District Court, clarified what he would consider &quot;sufficient guarantees of trustworthiness&quot;: U.S. District Court Judge Reggie Walton issued the rare order to the White House last week after expressing dissatisfaction with a previous explanation submitted by the Justice Department’s top career official, Associate Deputy Attorney General Bradley Weinsheimer. Weinsheimer said he had checked with an unidentified official in the White House counsel’s office and determined that no new declassification was triggered by Trump’s latest tweets. However, Walton said given Trump’s suggestions of a rogue element undercutting his orders, some assurance directly from the president or someone who had spoken to the president was necessary. As Meadows had, one presumes, literally spoken to the president, this satisfied the presiding judge's own explicit standard of &quot;sufficient guarantees of trustworthiness&quot; for when hearsay may be admitted into evidence. Rule 807(a)(2) is also relevant here, in its caveat that hearsay may be accepted into evidence when it is &quot;more probative...than any other evidence that the proponent can obtain through reasonable efforts&quot;. Arguably, forcing the POTUS to neglect his duties running the country and &quot;ending the pandemic&quot; long enough to testify in what is, in many ways, a run-of-the-mill FOIA case, would take too much effort to be &quot;reasonable&quot;. Which brings me to the next point: Rule 804(a)(1) and Rule 804(b)(5), &quot;Unavailability of the Declarant&quot; Rule 804(a)(1) discusses a specific exception to the hearsay rule when the declarant can't or won't personally testify: (a) Criteria for Being Unavailable. A declarant is considered to be unavailable as a witness if the declarant: (1) is exempted from testifying about the subject matter of the declarant’s statement because the court rules that a privilege applies As POTUS, it makes sense that Trump would have some degree of privilege or immunity from being deposed. If a sitting President could be dragged into court at will over any government litigation, no matter how mundane, to personally testify, it would be impossible to perform the functions of their office. Think about all of the live issues winding their way through the courts right now that Trump has tweeted about. Now, imagine the demands on his time if he was dragged into court to testify regarding every single one: &quot;Sorry Angela Merkel, I have to cancel our international summit this year, I'm giving a live deposition in 50 different court cases in the next three weeks and I don't have time to do 'foreign policy' right now. Hope no new World Wars break out! Good luck!&quot; Of necessity, a POTUS has to be permitted to delegate 99.9% of legal representation on matters of public policy to other Executive Branch officials, when it comes to who actually needs to be physically present in court. And since he is privileged from personally testifying, that means exception 804(b)(5) applies: (b) The Exceptions. The following are not excluded by the rule against hearsay if the declarant is unavailable as a witness: .... (5) [Other Exceptions .] [Transferred to Rule 807.] We discussed how Rule 807 applies in this circumstance up above. But I want to circle back to the idea that the President has to be able to delegate statements of official policy to other authorized government representatives, such as Meadows, because of the clinching exception: Rule 803(8)(A)(i): Public records of governmental policy aren't excluded by the hearsay rule Rule 803(8)(A)(i) tells us that: statements of public policy (such as, whether the government is going to declassify, or has already declassified, every document relating to the Russia investigation, specifically including Mueller report and FBI interview redactions) made by public offices or their official representatives (such as the POTUS's chief of staff, authorized to speak on behalf of the POTUS, clarifying the Executive Branch's stance on declassification) are not excluded by the hearsay rule: The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness: .... (8) Public Records. A record or statement of a public office if: (A) it sets out: (i) the office’s activities This makes sense given the purpose of the rule against hearsay. It's supposed to prevent innuendo and rumor from sneaking into the factual record when the facts are in dispute: &quot;I heard the defendant's mom say the defendant said he did it,&quot; related by the defendant's mom's bingo buddy, would deservedly raise some eyebrows around the bingo table, but isn't the kind of solid evidence an impartial trial requires. Statements of public policy and government action by public officials, on the other hand, have a lot more authority and credibility than what a friend of a friend of the defendant heard the friend say the defendant said. Meadows isn't (just) some random golf buddy of the President who overheard what the President was thinking when he made these tweets; he's the President's official delegate to the court, conveying the Executive Branch's official position on declassification. Such official statements are ordinarily presumed maximally trustworthy and reliable, at least partly for logistical reasons. Similar to how we can't ask Trump to cancel all the COVID task force meetings to clear his schedule and testify about some tweets, we can't drag every government officer who makes an out-of-court official public statement or record into court to certify it--at least, not every single time. The judicial branch of the government takes the word of other branches of the government mostly at face value†, and does not consider public records or statements in an official capacity as &quot;hearsay&quot; to be excluded from evidence. So the TL;DR version is: No, Meadows coming into court to convey this statement on behalf of his boss would not be excluded by the hearsay rule. †Significantly, statements or records regarding policy might be excluded as hearsay, per 803(8)(B), if the opposition demonstrates that the statement or record is somehow fishy or unreliable: &quot;(B) the opponent does not show that the source of information or other circumstances indicate a lack of trustworthiness.&quot; But in this instance, in order to demonstrate a &quot;lack of trustworthiness&quot;, the plaintiffs in the case--BuzzFeed, CNN, and the Electronic Privacy Information Center--would have to show that the government was actually declassifying and unredacting all material related to the Russia investigation, contrary to what Meadows claimed in court. Since the government is not actually doing this, the President's social media rants notwithstanding, the plaintiffs would be unlikely to prevail if they tried to use 803(8)(B) to get Meadows' testimony excluded as hearsay.
The example that you have given in your question regarding the travel ban does not actually constitute contradiction since one federal judge chose to issue an order but the other does not, thus the actions taken does not contradict. However, what you described actually happened before with the first travel ban (EO 13769). A federal judge in Boston, Judge Nathaniel Gorton, refused to extend a temporary injunction against the travel ban. However, another federal judge in Seattle then granted a temporary restraining order Friday that’s effective nationwide. As this CBS article states: Meanwhile, in a seemingly contradictory ruling, a federal judge in Boston refused to extend a temporary injunction against Mr. Trump’s travel ban. U.S. District Judge Nathaniel Gorton late Friday declined to renew an order prohibiting the detention or removal of persons as part of Trump’s executive order on refugees and immigrants. In this case, Judge Gorton declined to extend a temporary injunction against the travel ban. So, legally, nothing changes since he did not issue any new order or temporary injunction; the EO (travel ban) will stay as it is and when the existing temporary injunction expires, the EO will be back in force. Even yesterday, the federal judge in Hawaii issued a temporary restraining order which blocked the travel ban from being enforced. However, the federal judge in Maryland only blocked part of the travel ban, ruling that the most important section — banning travel from half a dozen countries — could not be enforced. The Hawaii court ruling would still &quot;take precedence&quot; since the temporary restraining order blocked the whole EO. Thus, it can be seen that there are mainly three ways for federal judges to rule: Grant a temporary restraining order for the travel ban. Block part of the order. Decline to issue any order; the travel ban will remain as is. To conclude, whenever a federal judge issues a temporary restraining order, it will always be in force as it would &quot;overwrite&quot; the other federal rulings in which the judges blocks part of the order or do not issue any order.
The situation is that Executive Order 2020-33 is no more, and a new order, 2020-68 exists. The old orders to stay home are now copied under this order, but it may be necessary for her to re-issue (a subset of) the orders so that they are pursuant to #68 and not #33 (live by the technicality, die by the technicality). If she does not do that quickly, I expect there to be legal challenges. The law (30-403) doesn't say that orders issued pursuant to a declaration of a state of disaster expire when the authorizing declaration expires, but one can reasonably infer that that is what the legislature had in mind when this law was passed. But that is a matter for the courts to decide. Deference to the executive, which is the usual way that courts operate, would favor an interpretation where saying "All previous orders that rested on Executive Order 2020-33 now rest on this order" counts as re-issuing the same orders with a new number in the text. The law does not say that the circumstances authorizing an emergency order have to be completely different. Perhaps the legislature will revise the law in the future, but it is what it is right now.