Trading Deadline

Yanks trade for two good starters; Mets trade Duda and Reed for prospects. Haves, have nots. Small scale, the Mets seem to have received a good return and long term, Addison Reed was a great pick-up, especially since he was good longer than Salas. Rookie Rosario is coming up tomorrow and Smith is due soon. More moves likely via waivers though wish more old news moved on already. Playing for the future; even picked up a reliever to replace Reed that will be here next season. Goal, not easy, will be .500.

ETA: First waiver deal -- Jay Bruce for his salary, low level pitching prospect and fan disappointment/abuse.

Saving ACA

After a West Coast Mets game was over, I was watching C-SPAN waiting for the vote for "skinny repeal" of ACA, which turned out to be a drawn out process that ended with McCain voting with Collins and Murkowski (two consistent "noes") against it. Many were upset at McCain for coming back after his cancer prognosis and voting to continuing the process. The whole thing was screwed up but the end result is appreciated. And, there 48 Democrats and three Republicans did the right thing. Lots of battles to come. But, whew. And, as a whole, Republicans still are horrible. Individual Republicans doing things like this are appreciated.

ETA: CJ Roberts was key to saving ACA so this gives me a chance to note the updated SCOTUS website. Sorta underwhelmed. SCOTUSBlog eventually talked about it, but in underwhelming fashion. Uh. They already had Internet links cited, access to transcripts, audio and other case information.

Trump vs. Trans in the Military

I recently read a small book with four case studies entitled Beyond Trans: Does Gender Matter? that was interesting though probably could have been longer to deal with the somewhat absolutist position. Today, on the anniversary of desegregation in the military, Trump tweeted trans "in any capacity" cannot serve in the military. The cost reason offered is specious. It's a blatant wedge issue move. This after over twenty House Republicans joined the effort to vote down a ban on the Pentagon paying for gender transition.

Ohio Death Watch

Ohio is somewhat curiously a major death penalty battlefield these days. Sotomayor continued her dissenting effort to enforce some oversight (here the district court held a trial was warranted over drugs and it was upheld before an en banc court overturned) with RBG joined her ("RBG and Sotomayor, dissenting" again). Justice Breyer was surely sympathetic, but left it to her statement, while focusing on other death penalty things himself.

ETA: Ronald Phillips (child rape/murder at 19) was executed. The mother's case is tragic too. The other executions (double robbery/murder and drug influenced murder) are pending.

TV Update

Story of a Girl was Kyra Sedwick's first directorial effort and had some familiar faces (her daughter, "t.v. husband" and actual husband had supporting roles). It involved a teenage girl affected by a viral sex video. Overall, very good, including the supporting roles. Grantchester had a good episode too. "Leonard" showed some toughness again. One episode in season left?! Meanwhile, late night baseball this week, and trading deadline watch.

Update: Started to read the Grantchester series and wasn't that interested. So, not sure how loyal the later episodes are though saw a reference they aren't in some fashion. The t.v. movie is mostly loyal to the YA book though a few interesting tweaks such as her choosing to post the video online. (The book was written in 2007 and doesn't use any phone/net/video referenes though even in 2007, there was some potential there.)

Trump Judges

Looking at poll data, a major factor for Trump voters (30% or something) was judicial nominations. McConnell, after another failure on screwing health care, pointed to Gorsuch. There also has already been some other nominations, many well praised by resistance lawyer types, but consistently conservative. All are tainted by the nominator. The first confirmed is someone we heard little about though fits the bill, in the less known but often controversial 6th Circuit. The second was John Bush, a tool that was prime Trumpite bait. The fact not a single Republican voted against them reminds us the state of the party. The courts, including the Supreme Court, will be tainted for a long time with these people. Kill me now.

Pardons

[H]e shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.

There are reports (denied though it both is proper to cover all the bases and his comments imply he has been briefed about the matter) the Trump Administration is examining pardons of family members etc.  This could interfere with the Mueller investigation since that is tied to prosecution (showing that Congress still has a role here) though be hard to totally stop it. There are even reports of the suggestion of a self-pardon.  Meanwhile, the ability to indict a sitting president is itself not a total non-factor. This led me to investigate the issue some.

[I provided links that argue both sides of the no indictment of a president during their term and find the argument for a complete bar weak. This is particularly the case if the punishment does not involve detention or such imprisonment is put off to after they leave office. Realistically, if it ever was used, it would likely be used in blatant cases.  Or, maybe for minor cases where punishment would not interfere.  This includes any warrant for arrest -- if the president refuses the warrant, who's going to force him?  But, yes, we shall see if something pops up eventually.

The Constitution has limited explicit immunity but I can understand some implicit arguments being put in place. But, a total bar, especially with a vice president being available to serve if the president is unable, is needlessly extreme.  This leaves concern for state prosecutions raising some sort of federalism concern, which is being argued in Trump's state civil litigation.  But, if he actually murdered someone on Fifth Avenue?  Why shouldn't he be subject to NY murder laws? Citations to the Supremacy Clause only are question begging as to what the Constitution actually requires there.] 

The last link notes that there is some problems for Trump if uses the pardon power, particularly because there is no immunity if there is no liability per the Fifth Amendment.  The pardon power only applies to federal crimes, but not too many of the people (though Trump himself is not included here) probably don't have much to worry from state prosecution. The link also notes (as do others) that state investigation is an alternative route here as might be private lawsuits.  Also, a pardon might be done via a bribe etc., and grounds for impeachment or even criminal action.  The pardon itself won't be negated, but like "speech plus," something might be actionable.  Finally, a pardon might violate some other constitutional limit, like only pardoning Catholics. The link argues the pardons would hold but the president might be targeted for the constitutional violation.  Maybe so but if someone told me establishment of religion was inherently void, I would not find that an unreasonable argument either. The 1A came later. 

This brings us to the differences between legislative immunity and a pardon. They are substantial. The latter carries an imputation of guilt; acceptance a confession of it. The former has no such imputation or confession.

This was cited by a law professor, a 1915 Supreme Court opinion (Burdick v. U.S.)  in which someone actually refused a pardon to avoid needing to testify.  I find that statement as overboard. Consider, e.g., an amnesty after a rebellion of some sort [Federalist No. 74 cited such a case "to "restore the tranquillity of the commonwealth"] to avoid the trouble of having specific hearings of innocence and guilt.  I'm not sure that we should impute guilt in each case.  Finally, in the 1920s, Biddle v. Perovich sets forth another view:

A pardon in our days is not a private act of grace from an individual happening to possess power. It is a part of the Constitutional scheme. When granted it is the determination of the ultimate authority that the public welfare will be better served by inflicting less than what the judgment fixed.

My reading of this is that a pardon, minus a conditional pardon where the person has to do something (e.g., a drug treatment program), is not something a person can refuse.  It is not a "private act of grace" [cf. Chief Justice's framing in United States v. Wilson, where someone refused a pardon for strategic reasons -- Burdick discusses the background.] This is not to say that a pardon does not generally imply guilt.  But, if it is done before prosecution, perhaps for reasons like President Ford to move on as a nation, or maybe in fear that a future prosecution will be unjust, why should guilt necessarily be inferred?  One article cited said:

While a pardon is widely understood to lessen the social stigma that attaches to a conviction, all else equal, pardoning authorities assume that the applicant was guilty as charged and properly convicted, at least in the absence of an exceptional showing of innocence or miscarriage of justice.

And, I think this in a useful qualifier. The matter of self-pardons was addressed in a link above, but the basic idea is two-fold. One, "pardon" implies that someone is being pardoned, it is not a solo action. Two, there is the overall principle that someone should not be the judge of their own case. This might not be some absolute rule, but there doesn't appear to be a reason for it to apply here, especially with the first aspect.  There does not seem to have been any understanding, nor should we have one (since original understanding to me is of limited note) of that being possible. It might not be deemed likely this would come up but at some point a president might be prosecuted and a pardon could interfere. 

The limit involves impeachment. It's somewhat interesting since at first blush I wondered how it would come up.  Isn't the point of impeachment merely to remove people from office and perhaps ban them from future ones?  But, such a burden very well might be of the type possibly a pardon would erase, since they also erase other barriers such as not voting. Also, it was suggested by Joseph Story that it would be used the President to help cronies who were impeached that they themselves conspired with in some fashion.  Finally, the Constitution also says:

the party convicted shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law.

So, once impeachment begins, the pardon power cannot be used to interfere, which basically so far only arose in the case of federal judges. (Andrew Johnson wasn't going to be prosecuted, leaving one other case.) And, even there, the general trend was that they were impeached after being prosecuted (one exception that comes to mind involved a judge during the Civil War).  But, if impeached first (since it is a congressional power, it would be curious if it was reliant on executive prosecution anyhow), the president would seem not to have the power to pardon the person.  And, it is quite possible that even if that president didn't want to prosecute, the next one might wish to do so.*

[If the president does pardon a federal official open to impeachment, it would seem to me that the Congress still has the power to impeach. Again, impeachment is a political act tied to the office, not a criminal prosecution.  That extra provision interestingly suggests removal by impeachment "shall" mean the person is liable, limiting the pardon power, a criminal matter too.  The pardon holds, since it was done before a case of impeachment arose, but it still wouldn't negate the impeachment power. OTOH, any criminal liability would be waived if covered by the pardon.]

The concern in recent years was that presidents have been too lax in use of the pardon power.  There were a few cases where it was felt that the power was used dubiously (e.g., George Bush with certain Iran-Contra personnel, Clinton with Marc Rich and Bush with Libby).  That sort of thing is going to happen.  Some states put more restraints on executive pardon power, and it might very well be a good idea to have some limits. OTOH, again, the general problem is that there is not a good enough process in place to use pardons and reprieves in a more effective fashion. Still, even a drug prohibition opponent would question an across the board pardon of every single non-violent marijuana offense.

That sort of thing did arise when one or more governors blocked the death penalty, but it is part of the balance involved.  One can argue that the requirement to faithfully execute the laws guards against total abuse of the pardon power.  As noted above, certain crooked pardons can be targeted as well.  Trump does potentially have broad discretion for cause trouble here, though prosecutions are not really of immediate concern. It is more bringing out all that happened and provide some real consequences. It is quite possible that someone will be subject to prosecution here, but not holding my breath that Trump Jr. or the like actually will be.

Finally, I mentioned impeachment. That too has been rarely used, but it provides an overall principle of limited government.  It also provides a lesser power to investigate as does other things.  Congress, e.g., has an interest in safeguarding federal elections and determining possible ways to do so will be assisted by investigation. Meanwhile, Mueller is investigating which is a primary driver of the reports we led off with.

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*  One thing I saw was that the provision leaves open prosecution without double jeopardy being a concern.  The provision came before the explicit bar was in place, but it was a generally understood limit. Plus, even now, someone removed by impeachment cannot claim that's all that is allowed.

Pardons/Impeachment/Spicer Resigns etc. etc.

So reports (of course denied though there is nothing really wrong with being fully informed) of research on pardons and impeachment (Arthur Goldberg, in part raising something blocked by Nixon v. U.S.) talk continues toward our major constitutional live action dialogue. It is all amazing, horrifying and various other things. It is also so easy to be caught in it, mesmerized by ongoing events. This year for me personally leaves a lot to be desired and this isn't really helping. Anyway, a bit of poetry. The one about "Diane" is touching.

Repeal/Replace of ACA Blocked

For now, it appears that the attempt to repeal/replace (or just repeal) ACA has failed in the Senate. Certain Republican senators opposed it as too mild but some as too harsh. Strong opposition mattered. A good victory to help continue fighting. Meanwhile, I'm sorry about John McCain, but also about others who have to deal with cancer. Especially those who are worried about costs. McCain helped how in that respect? And, it is not uniquely "horrible" some older person having cancer. A child? Yes. A bit tired of the level of responses there.

ETA: He suffered in Vietnam. Sure did. Do we hear about other survivors dealing with cancer like this? His service in the Senate has been tainted, especially lately. Sorry.

Summer Orders (1)

Less than two pages; rehearings denied & one attorney discipline notice. Much more important is possible pending clarification of travel ban order. SCOTUSBlog again refused to notice them but did see at least one legal twitter mention.

ETA: And, we got it. Family relationship part of district judge order holds. Broader refugee aspect of that order stayed at least until 9CA decides. Oral argument separately set for second week of October. No overall clarification. Gorsuch three wanted more.

Grantchester

With John Oliver on break and not being a fan of thrones, this is the one Sunday evening watch left at the moment. Too much drama this season -- three of the characters having relationship difficulties involving conflicts between "right" and "wrong" couplings apparently not enough, this one had the landlady's miscreant husband pop up. Is there one happy family in the area? Overkill hurts since the show remains enjoyable overall. The new archdeacon character also provides good bite though the show stacks the deck against him.

The L Word

I don't have Netflix (need to get a free month again!) and for some reason NYPL doesn't have the second season (the third is now over!) of Jane The Virgin. So, started on this, though had some DVD scratch issues. First few episodes are pretty good (yes, up and running on the explicit scenes) though Jenny already is a bit insufferable. Like Dana (I saw what happens. Unhappy face.) and Alice particularly. Alice was to be on an unaired spin-off that dealt with the "who killed Jenny" sixth season question. Talk of a reboot.

ETA: Yes, Jenny is tiresome, but the creator apparently based it some on herself. Explains why we see more of her at times than characters I personally rather see. Jennifer Beals, otoh, has some powerful moments. And, she does hot very good too. Season finale has some strong emotional moments, more than one heartbreaking. Some slow moments, but good show so far overall with some sweet and funny moments. Many familiar faces.

Partisan Gerrymandering

Charles Fried, a conservative on the right side of some things (privacy outside of abortion, PPACA outside Medicaid expansion etc.), targets partisan gerrymandering. Structural issues is a big picture thing that the Resistance has to address long term.

SCOTUS Takes Break from Break

With RBG/Sotomayor dissenting, SCOTUS stayed the injunction to a state law regarding pressure on pregnant women to obtain treatment as a child welfare measure. A lower court struck it down and it is being appealed. As usual, neither group of justices explained their reasons. Summer order schedule should be here soon. ETA: Summer Order Lists dates.

And Also: For some reason, including after I specifically emailed them, SCOTUSBlog in the past didn't want to list the scheduled order lists on their calendar. The blog does more now to specifically summarize orders but has not separately addressed either thing.

Virginia executes William Morva using controversial three-drug mixture

When you think "worse of the worst," a man who killed a hospital security guard and a sheriff’s deputy after escaping from custody might count. But, there were concerns about his mental health, so much that a victim's daughter opposed the execution. I respect that the governor weighed public duties with private beliefs against the death penalty. No orders on this case over at the SCOTUS website. Secret compounding pharmacy used.

Our Declaration: A Reading of the Declaration of Independence in Defense of Equality

Re-read this book, which I already discussed a few years back, and again found it rewarding. Got a bit tedious at certain points where it seemed she was rambling some. But, has some good insights, including basically a way to apply it for atheists (focus on "nature" over "nature's God"). Central argument was how the document promoted equality, including each person's equal role in the collective "people" involved here to govern (basic to human rights existing itself), determine wrongs that warranted change and so forth.

TV Watch

Don't watch much t.v. these days and felt Veep had a very disappointing season. Better Call Saul was somewhat mixed but more enjoyable though continuing its go it slow style. Sunday now has two mysteries -- Grantchester (good start, one eh episode after first three) and a Prime Suspect prequel (two episodes at once; first pair good). Caught two episodes of The "L" Word, repeats regularly on Showtime. One episode good. Last Week Tonight had a good episode before its short break, including a parody of a Harding movie (show bought five wax dummies of presidents, one used here). And, there are the Mets games.

ETA: Second episode of Prime Suspect bored me / turned it off.