Author: AmericanJudge

Interesting times in Cook County, Illinois. The local elected State’s Attorney is currently under investigation by a special prosecutor for her handling of a celebrity prosecution. She acknowledged a conflict and publicly claimed to recuse herself from the case. She never recused her office and subsequently it was learned that she never actually fully walked away from the case. Ultimately the case was hurriedly brought to court without any notice to interested parties and dismissed. In the aftermath it became clear that this case was not handled consistent with any established protocol. Further embarrassment resulted when an internal email asking prosecutors to forward information about any other cases disposed of in a similar manner was leaked to the public. After promising full cooperation and transparency, the prosecutor Kim Foxx has engaged outside counsel for the State’s Attorney’s Office and for herself. Maybe her vow of transparency and cooperation will compel her to explain why outside counsel is needed for the prosecutors office and who’s paying for it. While she’s at it, perhaps she can explain why she needs outside counsel to cooperate with the special prosecutor. Under normal circumstances the Attorney General would represent the State’s Attorney or her office when there is a conflict. Why isn’t the Illinois Attorney General representing Ms. Foxx and/or her office? Especially in light of her claims to be transparent and cooperative. Could her refusal to explain her response to this investigation have anything to do with her March primary? Is she trying to run out the clock so voters don’t have any answers or insight about this investigation before they vote? Here’s the most interesting question bouncing through Chicago’s legal community-if Ms. Fox is subpoenaed to appear in front of a Grand Jury to answer questions or explain her actions will she assert her rights under the 5th Amendment? Imagine that, a prosecutor taking the 5th. Who could have envisioned that when the Cook County Board President and leader of the Cook County Democratic Party hand selected a lawyer who had let her law license lapse and had little practical legal experience to be the person to run one of the largest prosecutor’s office in the country that we would end up watching a special prosecutor unravelling a mess? In a campaign commercial Ms. Foxx dismisses the mishandled case and claims that she “owns that.” Instead of playing beat the clock and dragging out the investigation until the primary is over, Ms. Foxx should do what she once claimed and cooperate and be transparent. Then and only then can she truly own it.

Recently President Trump threatened to sue Nancy Pelosi and others. Trial judges know that this won’t happen. The reason this is a non-starter for the president is that if he were to be a plaintiff in a civil suit he would have to go through the discovery process and ultimately sit for a deposition. Indeed, the response to the congressional investigations so far has been for the White House and now Rudolph Giuliani to refuse to cooperate with the investigations and ignore subpoenas. Giuliani was once the head of the federal prosecutors office for the Southern District of New York. The United State’s Attorney’s Office for the Southern District of New York has long held a reputation as the premiere prosecutors office in the country. Giuliani came to prominence as a fearless force fighting the New York mob. Clearly he understands what a subpoena is and what the consequences are to ignore one. In one recent day President Trump lost five court cases. The only newsworthy aspect of these losses was the sole dissent by a recent Trump appointee to the appellate court issuing a 2-1 decision against the president. The justice was excoriated by legal scholars and media members for her seemingly illogical opinion. Litigation is a slow and deliberate process. Most likely an impeachment and the other related investigations will not end prior to the 2020 election. If President Trump is re-elected Mr. Giuliani and others caught in this legal vortex may be able to clear their names or if in jeopardy of criminal liability can enjoy relief by presidential pardons. What trial judges know is that these issues will take years not months to resolve and that eventually evidence will be produced. If we really are a nation of laws rather than of men, it will be the evidence that rules the day.

As each day brings more allegations against the president which prompts more retaliatory accusations against democrats, it looks like lawyers are going to be very busy. While social media exposes our nation’s rigid divide, many people that don’t easily identify with one of the firmly entrenched partisan positions would like to see evidence. It was often noted that applications for law school spiked as a result of the Watergate proceedings. Whether this was empirically proven or merely myth, the beginning rumbles of impeachment will almost certainly put lawyers center stage once again. Hopefully, the rules of evidence and civil procedure will be followed. Trial lawyers follow codes of professional conduct which will be a welcome relief from partisan discourse and the incivility we’ve observed thus far. If there is an actual impeachment hearing, Chief Justice John Roberts will preside over the proceedings. Hopefully, skilled trial lawyers will be tasked with the prosecution and defense in the hearings. Regardless of the outcome, our nation needs an orderly process relying on evidence and reinforcing our system of justice. We must show the world that we are still a nation based on law. To do that, the process must be fair, open and demonstrate the gravitas of our centuries of jurisprudence. We are at an important place in history. It is time for lawyers to rise to the occasion.

The United States Supreme Court ruled that the so called citizenship question cannot be on the 2020 census as proposed. It did not rule that the question itself couldn’t appear, just that the reasons given by proponents of the question to appear were not acceptable. The possibility that the question could appear in the future under different circumstances was left open. Initially, the powers that be accepted the decision and moved forward with printing the census documents without the citizenship question. It should be noted that the Supreme Court rejected the question in part because it didn’t believe the reasons given by our government. Evidence existed that proved that the government had different motives than those presented to the Court. In short, they lied. President Trump seemed to accept the decision until he didn’t. In a tweet, he asserted that he didn’t accept the opinion and was looking for a way to get the question on the census despite the Court’s ruling. This is not surprising. President Trump has praised courts that agree with him while ridiculing court’s that rule against him. Any experienced judge knows that every decision disappoints somebody. That is part of the game. Federal judges were given lifetime appointments to insulate them from political pressure. Will the President defy the Supreme Court? If he does, will there be any consequences? Our nation was founded on principles of checks and balances predicated by three co-equal branches of government. Over the last 240 years we have survived many challenges. The rule of law has sustained us. Let’s hope for another 240 years as a nation of laws rather of men.

Recently judges in Cook County Illinois received letters from an organization with an ultraistic sounding name. Inside the envelope was a letter explaining the purpose of the letter and the goals of the organization. Also in the envelope was a draft of a pledge for the judges to sign showing their commitment to rule in accordance with the organization’s purpose. The pledge wasn’t to follow the law but to rule in furtherance of the group’s agenda. It was reminiscent of Grover Norquist and his “Taxpayer Protection Pledge.” While Norquist targets legislators to sign his pledge to adhere to his vision of tax laws, the letters the judges received fall into a darker and unethical area. Judges cannot prejudge issues that may come before them. Also, this organization is a partisan group pushing a social agenda while trying to enlist members of the judiciary to “their side.” If the group thought it through, any judge signing such a pledge would have to recuse themselves from any case before them where the issue was in controversy. Any judge signing a pledge demonstrating a predisposition on an issue that may appear before them would most likely face an ethical inquiry. This attempted intrusion into our independent judiciary is improper. Few appellate and supreme court cases are decided by a unanimous decision. In this case, the response of the judges should be unanimous. Just say no.

Black lives matter. Blue lives matter. All lives matter. In today’s hysterical climate of rhetoric each of these three simple statements are landmines buried on the path to civil engagement. Black lives matter was a statement which evolved into an organization against the killing of innocent African Americans at the hands of police. In response, Blue Lives Matter was created to honor police officers killed in the line of duty. This created an either or proposition. If you believed Black Lives Matter, that meant you were anti-police. Conversely, if you supported Blue Lives Matter, you were racist. Enter All Lives Matter which stood for the proposition that all human life is important. Somehow, this also was unacceptable to many. Let’s take a step back here for a moment. Nobody can argue that killing innocent people has a political benefit. Police officers overwhelmingly become police officers because they believe that they can help people. No police officer wants to shoot an innocent person. Sometimes, horrible circumstances unfolding in a matter of seconds lead to horrible outcomes. The response to tragic mistakes must be an acknowledgement that mistakes happen. Supporting the police does not make somebody a racist. One can support police while still requiring police to act in a professional manner. Attacking All Lives Matter supporters as being fence sitters is flat out wrong. The three statements are all correct. The political connotations connected to these statements has become a symbol of our inability to have a conversation with each other. You can’t have a conversation when nobody is listening. Support the police while demanding improvements to prevent innocent people from being killed because all lives do matter. Don’t hide behind the rhetoric, step up and engage in a civil manner to improve how we protect society. Is that too much to ask?

We live in a dramatically different world than previous generations. The “Greatest Generation” fought a war to save the world. Boys of 18, 19 and 20 were drafted and sent to war. They heroically served and came home to unprecedented growth and prosperity. American families found work and were able to chase or sustain their American Dream. Kennedy famously asked what we were willing to do for our country. Today, many Americans ask what the country can do for them. Where do we stand? What are our priorities? With cuts to the military budget, could we make health care and higher education affordable to the masses? Does it make sense to give the uber wealthy tax relief at the expense of the middle class? If you’re pro-life, what are you willing to tolerate to attempt to outlaw abortion in the United States? Is it fair to excuse all college debt? What about all of the families that struggled to pay for their children’s education? Wouldn’t it make more sense for the government to create a program to convert the individual’s debt to zero or no interest loans and help the students pay off their debts without the crushing effect of high interest loans? We have three co-equal branches of government. The driving reason for this was to create checks on ourselves. The courts are to protect the citizens from abuses from the legislative or executive branches. Currently the executive branch has been directing their employees to disregard subpoenas issued by the legislative branch. Ultimately, the judicial branch will be required to determine if the subpoenas will be enforced. If the judiciary issues an order and one of the branches doesn’t comply with the order, we will be at crisis. The founding fathers anticipated elected officials that would seek to overstep but they never anticipated a generation of crybabies that don’t think that the rules should apply to them. If the judiciary is assailed when the opinion goes against you but praised when you prevail, you demean the credibility of the court. We are not a nation of us versus them. We are a nation of laws. Time for the citizens to provide leadership to our elected officials and embrace the courts and other institutions that has led the United States to be a moral leader in the world community. We cannot make everybody happy with every ruling. Judges are to fairly interpret law without bias or agenda. We need judges to follow their oaths and people to accept the outcome. Perhaps the challenge to our generation is not to fight a war to save the world but to battle to save our nation.

Today is supposed to be a day of reflection as we celebrate the sacrifices made by prior generations. The “Greatest Generation” battled fascism and saved the world from Adolph Hitler’s world view. Prior to that, our country suffered through a civil war to preserve the union. Yet today we see people waiving Nazi and Confederate flags. Often these flag waivers also make the incongruous claim that they are patriots. Our nation is imperfect, yet we see thousands of people risk their lives to immigrate here. Regardless of your views on what should be done to improve our badly flawed immigration laws and policies, it is undeniable that we remain a beacon of hope throughout the world. Lost in the tribalism and partisan politics currently dominating the media outlets is the need to listen to each other. Our founders created three co-equal branches of government to inspire citizens to have a voice in how they are governed. It was never intended that our elected officials would be our leaders. Rather, the goal was for our elected officials to implement the will of the people. The judiciary was to insure that the laws were followed. Prior generations went to war to preserve the ideal of our country. Is it too much to ask Americans today to thoughtfully vote? The time has come for us to listen to each other. You cannot dismiss your fellow citizens merely because they have contrary views. We owe it to our children to try to give them a chance to pursue the American dream without rancor, bitterness and anger.

Alabama legislators recently passed a law effectively outlawing legal abortion in the state. The governor signed it into law. Other states followed suit quickly, passing their own versions of laws making abortion illegal. Some laws create no exceptions. Emboldened by the perception that adding Brett Kavanaugh to the Supreme Court gave them the votes needed to overturn Roe V. Wade, these states rushed to pass laws to give the Supreme Court the chance to make abortion illegal once and for all. Surprisingly, some anti-abortion activists complained that these laws go too far. Did Alabama, Texas and the other states further the efforts to overturn Roe or did they create an opportunity to finally fully legitimize legal abortions under defined limits? The answer most likely will come from Chief Justice Roberts. Roberts has demonstrated a commitment to lead the court to make decisions on narrow grounds. In these cases, that may mean finding Alabama went too far. That sets up the possibility that Roberts may be the deciding vote to strike down these new laws as being too restrictive and ratifying legal abortion without explanation of what reasonable limitations would be permissible. Alabama may have created the facts necessary to overturn Roe while creating a new standard with stronger protections for legal abortion. Time will tell but Chief Justice Roberts’ legacy may just be determined by the Alabama law.

Robert Mueller was appointed Special Counsel for the United States Department of Justice. He has a long and storied career as the United States Attorney for the Northern District of California, Director of the Federal Bureau of Investigation and other high level jobs in the United States Justice department. He has served under Democratic and Republican presidents. He was a decorated platoon commander in the Marines and served in Viet Nam. He was awarded the Bronze Star, Purple Heart and other awards for his service. He is a man that has faithfully served his country at a level rarely seen. He is a registered Republican but was appointed or reappointed by presidents George H.W. Bush, Clinton, George W. Bush and Obama. This is a man that oozes gravitas from every pore. There are rumors that he may be close to wrapping up his investigation soon. These rumors are based on guesses because Mueller has run his investigation by the book. There have been no leaks, no grandstanding like Ken Starr. Everything that we know with certainty about his investigation we know from court filings. While talking heads and partisan hacks from both sides have had a lot to say, they know nothing with certainty. What is certain is that this investigation has been an example of professionalism. There is an awesome amount of power within the Justice department. It is refreshing to see the amateurs at CNN and Fox stumble over themselves with wild speculation. The reason these two media outlets and all of the others are left to guess is because, regardless of the final outcome, this investigation was run right. None of those charged in this case have been acquitted and numerous convictions, by plea or jury, demonstrate that this is not a “witch hunt.” Ultimately, we’ll have to wait to see how it ends. Regardless, we owe Mr. Mueller our thanks.