Trump’s Birther Reboot

The Washington Post reported that the Trump Administration has stepped up efforts to deny passports to people in south Texas whose American birth certificates the government suspects are fraudulent and who were really born in Mexico. One milquetoast response is to remind yourself that the government has been bringing such claims for years and that in fact some midwives and physicians had submitted fraudulent birth certificates over a period of decades. So there’s nothing to see here—just ordinary enforcement of the ordinary law.

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Trump and Syria

My first reaction to the news that the US, along with the UK and France, had attacked Syrian chemical weapons facilities following the chemical attack the Syrian government apparently carried out against its own civilians was: I’m glad I’m not an expert in the law of war. If I were, I probably would be in the position of having to say that the attack broke the law, basically because it could not be seen as an exercise of the right of self-defense. If that is so, it seems to me there is something broken about the law of war that explains why even many people who know what they’re talking about (not to mention many US and allied public officials) find themselves arguing that the attack was legitimate, or justified, or even illegal but justified. How can it be that a really awful and tyrannical government deploys a weapon against which there is or should be a universal and absolute prohibition, against civilians no less; that that government and its main backer on the world stage, Russia, essentially block efforts to take collective action to stop the problem; and that the great powers (at least, the western great powers) that have been responsible in part for maintaining the world order violate the law when they act to punish Syria and to deter future outrages? It seems to me that there is something morally wrong with international law in this area if it is as the experts say it is.

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The Stormy Daniels Case: Declaratory Judgments, The Statute of Frauds, Removal and Arbitration Law For The Layperson

Outside of work, a lot of friends have asked me about the lawsuit that pornographic actress Stephanie Clifford, also known as Stormy Daniels, against the President, also, sadly, known as David Dennison. I regret having to write that sentence. Anyway, they’ve asked what I think about the merits and also what I can tell them about the procedural stuff. Here goes.

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Read more about the article The Muller Indictment On Russia’s Social Media Schemes: First Thoughts
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The Muller Indictment On Russia’s Social Media Schemes: First Thoughts

By now you have read that a grand jury has indicted several Russian nationals for conspiracy and aggravated identity theft in connection with the Special Counsel’s investigation into Russian interference in the presidential election. There is already plenty of news and commentary out there. Here for what it is worth is my reaction to the news.

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Read more about the article We Don’t Do That Here
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We Don’t Do That Here

Americans love parades. My kids and I look forward to the Roslindale Day Parade every year. The local schools send marching bands and dancers. All the local businesses have floats. The politicians are there shaking hands and kissing babies. There are fire engines and antique cars. And sometimes the army sends a band, too. It’s a great neighborhood parade, and something similar happens in neighborhoods around the country on holidays.

There’s another kind of parade. I remember it from news reports during the Cold War. Each year the Soviet Union would parade its military hardware through Red Square. Octogenarian leaders would stand in the reviewing stand, and intelligence analysts would study photos of them to try to divine what was going on inside the Kremlin. These parades were kind of scary, at least for children: just whom were all those missiles aimed at?

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Case of the Day: Ragbir v. Sessions

I don’t know much of anything about Ravidath Ragbir. His website says that he was a longtime lawful permanent resident from Trinidad who was convicted of fraud and then, in 2006, ordered removed from the country. For nine years, the government had not deported him, he had lived a law-abiding and fruitful life, and he regularly reported to immigration authorities. But a few weeks ago he was taken into custody. As the judge wrote in today’s case of the day, “He was informed that his time in this country was at an end; without further ado, without the freedom to say goodbye, he was taken away.”

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A Calamitous Day

Friday was a calamitous day, a punch in America’s gut. I will just mention in passing the guilty plea by former National Security Advisor Michael Flynn to a felony charge of lying to the FBI and the President’s apparent unwitting admission that he tried to obstruct justice by asking the then-FBI Director, James Comey, to drop his investigation into Flynn at he time that he knew Flynn had lied to the FBI. I want to focus instead on the tax bill that passed the Senate. And I don’t want to focus on the minutiae of the bill itself (as of the time it passed the Senate, hardly anyone, including me of course, could claim to have read it, and let’s just say I didn’t spend my weekend pouring over its details). I want to focus on two big-picture issues: the process the Republican used to ram the highly unpopular bill through the Congress, and what the bill’s big-picture effects mean for the country.

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The Thought Experiment

I would like to share my own second reaction to what happened in Charlottesville and then yesterday in New York. My first reaction was anger. My second reaction is not just a reaction but a prescription. I’d go so far as to say I’m going to offer words of wisdom. I can say they’re words of wisdom because they’re not based on any original idea of mine, but instead on an idea that I learned a long time ago. I’m not going to provide the pedigree of the idea or name-drop some of the authors whose books introduced me to it.

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Trump’s Fire and Fury

When I was in college, my roommate, the very sharp Matt Gerke, had taken an undergraduate course in game theory and gotten interested. He went to see the professor, Avinash Dixit, to ask about taking a graduate course in the field in the next semester. Professor Dixit stared intently at Matt as he made his pitch. After Matt was done speaking—without taking his eyes off of him—the professor reached behind his head and pulled a book from the shelf. He opened the book and held it in front of himself with the pages facing Matt. They were filled with abstruse equations and symbols. “Does this look familiar to you?” he asked. “No … no, it doesn’t.” Professor Dixit smiled a thin-lipped smile. “Don’t take game theory,” he said.

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The Trump Justice Department On Subpoenas To Journalists

Last week the Attorney General said that the Department of Justice is revisiting its policies on subpoenas to journalists. He made the comment in the context of discussions of the damaging and embarrassing leaks that continue to bedevil the administration. Attorney General Sessions referred to leaks of classified information, but we’ve also seen many leaks of apparently non-classified information that no doubt the administration would like to stop.

In light of my extensive coverage of the Belfast Project subpoena litigation, I have a perspective on this. If you’ll remember, the Belfast Project was an oral history project at Boston College that recorded and archived interviews with participants in the Troubles, the long and bloody struggle between the British and Irish republicans. The leaders of the Project made promises of confidentiality to the participants. But when Dolours Price gave an interview in 2010 that admitted her involvement in the disappearance of Jean McConville and disclosing facts about her Belfast Project interview, the British government made a request, under the US/UK mutual legal assistance treaty, for the the interviews. This led to litigation here in Boston, which I covered extensively. I predicted, correctly as it turned out, that the government would prevail, because in the context of a grand jury proceeding at least, there is no journalist’s privilege, let alone an oral historian’s privilege. As the First Circuit, quoting Wigmore, said: “the mere fact that a communication was made in express confidence … does not create a privilege. … No pledge of privacy nor oath of secrecy can avail against demand for the truth in a court of justice.”

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