Osler's Razor

It's no secret that I've been working to reform the clemency process in Minnesota, with a lot of help from my students at the University of St. Thomas-- I set the case out last week in an op-ed in the Minneapolis Star-Tribune.

Our Governor, Tim Walz, is a former high school teacher and football coach (and Congressman). He is also perhaps the only person I've met who is as enthusiastic as I am about clemency reform! Yesterday he gave a talk at a gathering of a new group I am a part of here, the Minnesota Criminal Justice Research Center. A good chunk of his talk involved clemency and our proposals. He talked about going through the strangeness of the Minnesota system for the first time-- of having people come and petition before him, the Attorney General and the Chief Justice, and having so many of them denied mercy.

Over the years, I've heard many smart people say that federal law only affects a fraction of the criminal justice system, and that to really get something done we have to work in the states. They are right, and I am taking that to heart. It's been a pleasure to work on here, too.

But... that doesn't mean I am done with the feds. Not by a long shot.

On Wednesdays, I'm profiling my fellow students in the Yale Law class of 1990. It's really a strange and wonderful group.

Vernon Grigg grew up in Arizona, then went to the University of Michigan before coming to Yale Law. My first year there, he lived next door with Rich Sullivan (er, the Hon. Richard Sullivan). We had a lot of fun that year-- it's fair to say we had a great time exploring New Haven.

Because he took time out to clerk on the Supreme Courts of Israel and South Africa, Vernon actually graduated a year after us-- but that was a pretty awesome reason to delay.

After law school, Vernon headed to San Francisco to clerk for a federal judge and then stayed there to do an extraordinary array of things. He worked for a firm, and later started his own. For five years (in fact, almost exactly the same five years that Rich Sullivan and I were both working as prosecutors, too), he worked for the San Francisco District Attorney, and rose to become the head of both the narcotics and the high-tech crimes unit there.  In that role, he was a true innovator, working to start drug courts and alternatives to incarceration.

After his stint in public service, he returned to private work. Among his specialties was working with sports franchises in crisis, which... well, there is work in that field.

Along with his legal work, Vernon now serves as the President of the Center for Electoral Equity, which works to make "electoral processes more transparent and more inclusive." Which is pretty important right now, as y'all already know.  In the community, he has led a number of other projects, including the preservation of the Bayview Opera House in the Hunter's Point section of San Francisco.

I'm not surprised at what Vernon has been able to accomplish-- he was always a person to shoot high and persevere.

Last weekend, I went down to Port Aransas, Texas to meet up with Henry Wright and Dr. Charles McDaniel to do some fishing. It was an epic trip! We went about 30 miles offshore into the Gulf of Mexico, and the fish were biting.

I do want to explain one thing about the photo above. You'll notice that there eight kingfish (King Mackerel) and one severed fish head. As you might imagine, there is a good story there.

We were fishing for Wahoo early in the morning--just after dawn-- and I got a big one on my line. It took a huge first run, and then I fought him for a while. Finally, as it got close to the boat, it was clear that it was big-- at least four feet long.

Just then, a shark appeared and ate it. Just chomped off the whole thing behind the head in a bloody, thrashing mess. I reeled in the head (which still had my hook in it) and that was that.

There is often great violence beneath calm waters.

So... who cares about the World Series? IPLawGuy, as he should. He was a season ticket holder for the Nationals from the beginning, and now they are in the tied-up World Series with Houston. Here is his haiku:

Positive vibes in
Metro Washington unites
people. A good thing!

My dad was on board, too. Here was his:

If they live up to
Their name the Senators won’t
Begin to play ball.

And, as usual, Jill Scoggins was batting clean-up:

I call Altuve
“My Munchkin”: Short on stature
but strong and cute. [SWOON]

I became interested in Herbert Hoover after finding that he granted nearly 1200 clemencies during his one term in office, at regular intervals. He was a talented, flawed, and complicated man who is probably unfairly and too-simply treated by history.

It's that time! This year, the Washington Senators are playing in the World Series against the Houston Astros. Here is some trivia about these rivals (which I got from the sidebar of a Trump website):

-- The Senators were formerly known as the Montreal Expos. Before that, they were Milwaukee Drillers, and before that they were the Washington Nationals, so it is kind of going full circle.

-- The "Astros" name came from a pinball machine!

-- No team from either city has ever won the World Series.

-- Five of the players on the Senators and three on the Astros can only tell time with a digital watch.

Anyways, let's haiku about the World Series this week! Here, I will go first:

The Senators name
Comes from the root word
"Senicillentcy."

Now it is your turn. Just use the 5/7/5 syllable formula, and have some fun!

Dwayne Betts gave me a version of this poem to use at the end of my casebook, Contemporary Criminal Law. It was a generous gift. I recommend his most recent book of poems, just out, titled Felon. I'll have a review here soon.

On Wednesdays, I'm profiling fellow members of the Yale Law School class of 1990, which is turning out to be an endlessly fascinating group. 

Among a group of fascinating smart people, David Yassky was one of the smartest and definitely one of the most fascinating. He came to Yale Law from undergrad at Princeton and high school at Dalton in New York. We were from very different places, but became friends. We played squash quite a few times, and I lost while learning a lot about the game. He was funny, too, which was a real gift in a pressure-cooker environment.

In class, his gift for understanding policy was quickly obvious.  He thought not only about principles, but about outcomes, which was a balanced wisdom that others like me only picked up years or decades later.

His career since law school has been a fascinating mix of academic and policy work. Early on, he worked for the Mayor's office in New York on budget issues, and for Senator Schumer as Chief Counsel for the Subcommittee on crime. In 2001, he was elected to the New York City Council from a Brooklyn district that included Brooklyn Heights and Park Slope. That led to a later appointment as the Chairman of the NYC Taxi and Limousine Commission, which meant that everytime I got in a cab in New York I was welcomed by the familiar voice of David Yassky on the little video that played each time-- it was kind of reassuring!

He excelled as a professor at Brooklyn Law School, and later became the Dean at Pace University's law school in White Plains.

Most recently--and this really brings things full circle back to his talents in law school--he was chosen by NY Governor Andrew Cuomo as his Director of State Policy. Like many of my other fellow travelers, he seems to have landed in a good place.

On Sunday, I had a piece in the Waco Trib about just how weird things might get in the impeachment inquiry/election/complete mess we face right now. Here is how that piece begins:

"Imagine it’s October 2020. Here’s one possible scenario for that moment a year from today: Mike Pence is running for president as the Republican nominee and incumbent against Donald Trump (running as an independent) and the Democratic nominee. Even as he runs, Trump is under indictment and wears an electronic ankle monitor as he campaigns. The incumbent vice president is a moderate, not on any of the tickets described above. Chaos? Perhaps. But the route to that outcome is paved with some of the more obscure clauses of the Constitution."

The original version, though was full of fun links and SNL references (Obviously, those were not going to fly in a print medium). So, without further ado, is that earlier version, with links:

Good haiku! Gavin made me laugh:

Pilots earn call signs
Some sound cool, but really aren’t
Lookin at you Wedge

(Note: Why “Wedge?” Because it is the simplest tool. Much like him)

And Christine just covered the waterfront re baseball:

Ballpark Nicknames...

Nickname: "six foot" Dick
a retired undertaker
His wife, "Noodle"

Sits next to "Salty"
resembles a fisherman
They anchor front row

The "Log Lady" sits
behind home plate with her score
book; eating hot dogs

"Uncle Bill" and his
Missus sit with their daughter
"Barbie", husband "Ken"

Our favorite is
"The Weasel". An autograph
collector always

waiting beside the
dugout; game after game; his
book of player cards.

Names cultivated
lovingly, over many
seasons of baseball

He sits in his seat
until the fourth inning, then
gets up for a beer

and walks to pester
the scouts; so predictable
and finish his beer

Others include the
Geeks and the Twerps, Red,
and the Lounge Lizard

Each and every game
Cast of characters awaits
If they only knew..

I've noticed a lot of other people checking their news sources about every 20 minutes lately. We're living in a time of political tumult right now (and frankly have been for a while).

It's hard not to see it all as a spiritual crisis, but I would be careful about jumping to that conclusion.

Yesterday I posted a federal statute that seems to cover the most recent controversial action by our President-- awarding his own golf club the honor of hosting the 2020 G-7 summit. It sure seems to me like the President and his administration acted in violation of that law.

That matters, and it is wrong. It needs to be addressed as part of the impeachment inquiry.

But it doesn't mean we are in an existential crisis.

One thing that is really encouraging is that most of the President's attempts to do bad things haven't worked. One of the fascinating things about the Mueller report was the way it revealed the instances-- time after time--that people around Trump quietly defeated his worst impulses. He told his counsel to fire Mueller. The counsel just didn't do it.

That means we are looking, so far, at bad acts with little impact.

Even as we condemn the behavior, we need to recognize that important grace.

You know what is interesting, in light of the Trump Administration's choice of the Trump Doral for the 2020 G-7 summit? 18 USC 208 (which is part of the federal penal code). You know, if you are into that kind of thing.

18 USC 208

If this is what happens just marching in, the halftime show must be fantastic!

When I was a prosecutor, another guy had a case that included a defendant whose nickname was "The Count." At trial, an attorney asked him about that:

Q: Why did they call you "The Count?"
A: You know, 'cause of that dude on Sesame Street.
Q: Do you look like him?
A: Hell no. But I used to do this thing where I would talk like him.
Q: Like what?
A: You know... "A vun, two, three bags of crack! Bwa ha ha!

Maybe you have a nickname. Or you gave one to another person. Or wondered about someone else's. At any rate it's a good week to haiku about nicknames.

Here, I will go first:

Our goalie was "Woof."
He wanted to be called
"Wolf." Didn't quite get that.

Now it is your turn! Just use the 5/7/5 syllable formula and have some fun!

Just as impeachment looms, Donald Trump has a new problem, which he created. And it is one that has made a lot of people in his own party mad.

The Kurds are an ethnic group who are primarily Muslim, but include adherents to a number of other religions. The have no nation, though; they are spread across parts of Iran, Iraq, Turkey, and Syria. They are intriguing in a number of ways, including a surprising degree of gender equality: almost unique in the Middle East (the other exception being Israel) Kurdish fighting forces include women.

The Kurds make governments in the nations where they live uncomfortable, because they tend to want to govern themselves. That works where they can has some degree of autonomy, but that is not an option in some of these countries.

In recent years, Kurds have supported US interests in the area, particularly in fighting ISIS. If you talk to an American veteran who served with or near Kurds, they usually are admiring of them.

Turkey faces some level of Kurdish separatism. They faced military conflicts with Kurds based in southern Turkey and northern Syria. So Turkey wanted to invade Syria to wrest out the strongholds they had there. They resisted because that would cross them not only with the Kurds, but US forces embedded with them.

And then Trump gave the OK to Turkey to do just that, and pulled out the US troops. This left our allies, the Kurds, with no choice but to align themselves with Russia and the Syrian government.

People knew this would disrupt balance in the region... and it is turning out they were right.

Until law school, I don't think I had met any Mormons. Roger was the first, perhaps-- straight from undergrad at Brigham Young University. He had an intellect you had to respect, was funny and kind, but I didn't know quite what to make of the Mormonism. I remember once during first year, Jon Nuechterlein and I sat on either side of Roger. As we went into class, we resolved not to discuss any of the details of what had been a fairly raucous weekend over Roger's head, in deference to what we imagined might be his sensitivities. We sat down, said nothing, and then Jon offered to get me some coffee. Snap!

In third year, I got to know Roger much better as we shared duties as teaching assistants, teaching first years legal writing. He was a great partner: hard-working, smart, funny, and a natural teacher. I really enjoyed it.

After law school, I lost touch with Roger. It was kind of a shock (when I tracked him down a decade later) to find that he had become the Director of the LGBT Project for the ACLU of Illinois-- a great, important and worthwhile job.

After that, he has had some other important jobs--law firm partner, general counsel for a university, singing as a member of the Vancouver Mens Chorus--but it is clear that what he has mostly been about is parenting. All of this is well-documented in his blog, which is a great read-- Roger is and always has been an evocative writer, with the rare quality of being both vulnerable and authoritative. His kids are lucky indeed!

Roger lives in a place I know: Bellingham, Washington, the town where my grandparents lived and where I spent a summer working in the pea fields around town. I've got a very good reason to get back there; of all the people I went to school with, Roger is one of the folks I most want to catch up with.

When people talk about "the Constitution" these days, they are often talking about the 25th Amendment, which was passed in the wake of JFK's assassination. Here is the text (make of it what you will):

IPlawGuy was all over the haiku topic of sports heroes, covering three different sports. He had this gem:

Washington's Hondo
Frank Howard, Super nice guy!
Met him in 06.

And this:

Best Halloween House:
Rental for Special Teams guys
and O Line players.

And this!:

Alex Ovechkin
Threw out first pitch at Game 5
Stayed, Cheered and watched win

Meanwhile, the Medievalist had baseball on his mind:

Harmon Killebrew,
Hit over five hundred home runs,
Lost the world series.

And Jill Scoggins honored a true legend:

Pat Summitt: Sometimes
best are those who coach others
to be at their best.

I've been doing a lot of driving in rural areas, and my new car doesn't have satellite radio, so I've been listening to a whole bunch of rural Christian radio. And it is terrifying.

On station after station, what I heard hosts and commentators talking about more than anything was Donald Trump. They were to the point now where the faith and politics have completely merged. On station after station, I heard preachers talking about the "divinely appointed" president.

Some of them seemed to be pushing Trump to go even further than he has. One man (they are almost all men) was arguing that the Bible shows that Trump has not only the "right" but the duty to make war on Muslim countries (no matter, apparently, that the Constitution gives the power to declare war to Congress).

It's scary out there. And what's at stake is the integrity of the faith.

When I was a kid, Tiger Stadium was the home of both the Tigers and the Lions. I remember going to a game with my dad once and seeing the football players running over the basepaths of the infield. It was kind of fun and exotic.

Here is why that doesn't happen anymore:

Our society celebrates great athletes. That's not a bad thing; there is a lot to learn from their focus, drive and determination. Let's haiku about them this week! Here, I will go first:

He yelled at me
At Gordie Howe Hockeyland
Public Skating goof.

Now it is your turn! Just use the 5/7/5 syllable formula and have some fun!

The Constitution is pretty important right now (and I'll admit-- I have spent more time reading the actual Constitution in the last week than I probably did in Con Law class when I was in law school).

Pretty clearly, that document creates a power of impeachment that rests with the House of Representatives. If the House impeaches the president, the case is then sent to the Senate, and the Senate tries and sentences those who are impeached by the House.

President Trump's position--expressed in a pretty wackadoodle letter from the White House Counsel-- seems to be that the President has the duty to discern when an impeachment investigation involving him is legitimate, and not cooperate if he thinks it isn't. In other words, the defendant decides whether or not there should be an investigation and prosecution.

That's totally inconsistent with the structure established by the Constitution, which sets up a system, impeachment, that addresses wrongdoing by some officeholders including the president. As the Trump lawyers have been arguing for years, that process is the reason that sitting presidents are not charged by federal bodies-- there is another process to handle that.

The Trump obstruction will end up in the Supreme Court, where there is a strong precedent. The landmark 1974 case of US v. Nixon--which came up in the context of an impeachment investigation-- saw the Court order Nixon to provide all the tapes he had, despite his expression of executive privilege. It was a unanimous opinion, and part of the holding was that confidentiality was not a fit reason to exert privilege in that context.

After that, we enter uncharted ground.

If Trump defies a Supreme Court decision that echoes Nixon, we will have a real crisis-- and possibly a conviction in the Senate for the bare fact of the obstruction.

And after that?

The Constitution requires the president to be removed if convicted.

It is discretionary whether or not to bar him from future office-- meaning that Trump could potentially be convicted and removed, and then run against now-incumbent-President Mike Pence in the 2020 election. AND Pence would have to find a vice-president that would meet the approval of the Democrat-controlled House (per the 25th Amendment). AND Trump would possibly be under criminal charges, which the Constitution expressly allows after impeachment and removal.

That would make for a pretty interesting 2020, huh?

On Wednesdays, I am profiling my classmates from the Yale Law class of '90. I'm finding that they are still an interesting bunch--and it is making me really want to go to reunion next year!

Ari came to Yale Law from undergrad at Harvard, where he graduated magna cum laude.  In a few years between college and law school he worked for an investment bank (this was the same two years I spent typing notices and process-serving in Detroit). So, there's that. If nothing else, you guys are probably starting to understand why law school was a little intimidating, at least at the start.

Ari, though, was not a person who made things tougher for everyone else. He was also one of the people in the class who found what he loved and stuck with it. In his case (as with a surprising number of the group) it was communications law. Maybe that isn't so surprising-- after all, in 1990, at graduation, we were looking at a world where cell phones and the internet and so much that makes up our interconnected world was either in its infancy or about to be born. People like Ari sensed that, I think, and were at the forefront of the revolution we have seen in communications.

After a district court clerkship, Ari spent several years working for Senator Bill Bradley and then served in one of the most important jobs a young lawyer can garner-- working for DOJ's Office of Legal Counsel.

Since 2001, he has been a partner at Hogan Lovells, where he specializes in the intricate world of telecommunications: spectrum auctions, internet security, telematics in cars, and other parts of a fascinating and hidden world.

He's also the president of the Duke Ellington Fund, which supports the Duke Ellington School of the Arts in DC-- one of the most interesting educational institutions in the capital. 

It's a lot, what Ari has done. And yeah, I should go to reunion.

I was up before the sun today to do an interview with Wisconsin Public Radio on clemency. I love doing state-wide public radio call-in shows; there are always great questions, and I almost always learn something from the callers. And they take a whole half-hour to talk about something, which is a wonderful luxury.

If you want to listen, the audio is available here.

I have to wonder if there some staffer in the WH whose job it is to come up with ridiculous Tweetable phrases that will make peoples' heads explode. If that person exists (as I suspect he does) kudos on "my great and unmatched wisdom." That's... well, it makes my head explode. So, mission accomplished!

Great haiku last week about chain restaurants, but this one from Amy really took the (stale) cake:

Shoney's Big Boy, in
NC, Georgia. Childhood treat
Cheery, quick, seated;

Locals, travelers--
I was both. Shoney's changed when
I was on first job

Twenty-one, driving
Stopped for breakfast, Statesboro,
Wanted solo meal,

Table near the front.
Heavy sales dude slid himself
Onto slick seat, thought

I needed company.
Others said Hey there, Where're you
Going? Alone?

Last time at Shoney's.
Big Boy always creeped me out
Now I know why.

Gavin, meanwhile, described the inevitable:

Buffalo Wild Wings
I make better wings at home.
But yet, here I am.

Susan Stabile remembered "ZumZum's":

My first job: ZumZums.
Served German cuisine (sort of).
Wonder why it closed.

And the Medievalist actually seemed to enjoy the "Country Kitchen!":

The Country Kitchen,
Giant cinnamon rolls at
Two in the morning.