Impossibility, What

If you're looking for inspiration in the California Civil Code this weekend, look no further than section 1597:

IMPOSSIBILITY, WHAT. Everything is deemed possible except that which is impossible in the nature of things.

The first two words of the statute appear to have been dictated by someone who had expected an impossible contract to be performed, but just learned that the entire contract was void under California law.

I prefer the statute standing alone with no further explanation. But readers interested in learning more can start by knowing that it is not legally impossible to build and operate a sawmill, while ensuring that no sawdust or debris from the mill fall into a stream. Peterson v. Hubbard, 9 P. 106, 107 (1885). It is, however, impossible to grade and level a parcel of land on which there are many trees without removing some of those trees. Greathouse v. Daleno, 57 Cal. App. 187, 190 (1922).

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The Flawed Ideal of the Unfazed Lawyer: A Response to Volokh

Yesterday I saw this series of tweets by Matthew Stiegler regarding Professor Eugene Volokh's decision to use the n-word in class, and Volokh's arguments for doing so. Stiegler refers to Volokh's post here where he notes that the dean of UCLA Law School had issued an apology for Volokh's behavior, which states:

Earlier in the year, Professor Eugene Volokh used the "n-word," both in class—in teaching a First Amendment case—and outside of class when recounting the incident to a colleague. As you may know, Professor Volokh has strong views about why he chooses to use incendiary language—even when vile—in his classroom, without euphemism or alteration. While he has the right to make that choice as a matter of academic freedom and First Amendment rights, so long as he is not using this or other words with animus, many of us—myself included—strongly believe that he could achieve his learning goals more effectively and empathetically without repeating the word itself. That is equally true in casual settings outside the classroom. Slurs, even when mentioned for pedagogical purposes, hurt people. The n-word is inextricably associated with anti-Black prejudice, racism and slavery; it is a word that carries with it the weight of our shameful history and the reality of ongoing anti-Black racism. I am deeply sorry for the pain and offense the use of this word has caused, and I very much respect the important work our Black Law Students Association undertook, using speech to counter speech, in the flowchart they distributed around the building.

Volokh's reply?

I want to respond here by explaining why I think I was right, and why I will continue to accurately quote things in class and outside it.

Volokh offers five (5) justifications for his use of the word. Stiegler took particular issue with one of them:

[4.] Moreover, law schools are training people to become lawyers. Lawyers have to deal with facts as they are, regardless of how unpleasant those facts may be. They need to read cases that contain nasty words and describe nastier actions.

. . .

And indeed every day, lawyers of all races, religions, ethnic groups, and sexual orientations handle cases—whether in criminal law, employment law, education law, civil rights law, family law, or elsewhere—in which they hear extremely offensive material. They handle these situations with professionalism, and don't let the casual cruelty, callousness, and hatred that they read or hear about get them down.

. . . 

I do not for a moment think that black lawyers allow themselves to be debilitated by hearing material about racism, gay lawyers about hatred towards gays, Jewish lawyers about anti-Semitism, and so on, whether that material describes violent attacks, contains epithets, or whatever else. I think that, as law students and law professors, we should follow this example.

Volokh's argument relies on an inaccurate view legal practice and the ideal attorney, does not account for the dynamic between professors and students, and fails to acknowledge the impact that his words have on his audience.



First, there's a difference between being "debilitated" by something and suffering stress, offense, or discomfort as a result of something. While lawyers may not always become debilitated in the circumstances Volokh describes, it's unrealistic to claim that they do not suffer some form of stress. Students, likewise, may not be debilitated by Volokh's use of the n-word, but it adds to the already stressful environment in which most, if not all, law students operate.

Second, Volokh's claim that attorneys don't let "casual cruelty, callousness, and hatred . . . get them down," is false. Volokh uses an idealized, unfazed attorney as a model that law students should not only aspire to be, but should already be. Shannon Kilpatrick makes this point in a series of tweets reacting to Stiegler--noting that lawyers should not aspire to be "unemotional robots" and that having an emotional response to negative circumstances motivates attorneys to right wrongs. It is, at best, questionable that a professor's use of offensive language in a law school class will effectively desensitize students against that sort of language. But if such a desensitization scheme were to succeed, the result would be a group of jaded, unemotional attorneys unable to effectively react to instances of vile behavior. Taking offense at the behavior of one's own client or adversary is crucial--as attorneys can work to control their client's behavior, or exploit the bad behavior of an adverse witness, party, or attorney.

Third, Volokh's overall claim is false: lawyers often do become debilitated by the stresses of the job. Much has been written on the stress of the legal profession, and the impact of this stress on attorneys' mental health. Many attorneys think that their mental health is worse off because of their work. As for mental health issues in legal academia, I highly recommend this three-part series of posts by Brian Clarke (here, here, and here). One instance of offensive language often will not result in the depression and anxiety that these articles and posts describe. But each instance contributes to the broad range of stressors that students and attorneys face every day.

Volokh's fifth argument in his post is worth noting as well:

[5.] Indeed, the implicit message of the claim that black law students, in particular, need to be protected from hearing cases that contain [the n-word] because they find it so "painful" or "challenging" (to quote the Dean of Wake Forest's law school) or offensive or even traumatic, is that young black lawyers will likewise be sharply disturbed by hearing the word in the everyday reality of their practices—in courtrooms, in depositions, in witness interviews, wherever it is part of the facts of a case or of a relevant precedent. If this were true, then this would suggest that black lawyers are going to be less effective than white lawyers, because they are so pained, challenged, disturbed, and distracted by simply hearing the word.

As I mentioned in item 4 above, I do not for a moment believe that black lawyers actually are less effective lawyers, precisely because I do not believe that they are so easily wounded simply by hearing the facts of a case. But I also don't believe that black law students (or other law students) are likewise so easily wounded.

I believe that students and lawyers of all identities are perfectly capable of handling the often ugly reality of the world, as reflected in the precedents and in the cases before them. And I think it does them no service to tell them that they are somehow entitled to be so shielded from that reality that they don't even hear some aspects of that reality.

Volokh's point in his fifth argument ignores the backlash to his use of the n-word, as well as students' requests that he not use the word. It also uses his students as a shield for his own behavior by claiming that because they are tough and capable, he should be able to act in ways that these tough students will be able to withstand. Doing so shifts the spotlight from Volokh's own behavior onto his students and accusers.

Volokh attempts to shift the onus to whoever is accusing him of insensitivity--claiming that criticism of his use of the n-word implies that students will be "sharply disturbed" by his doing so, and that the accuser is therefore "suggest[ing]" that African-American lawyers will be less effective than white lawyers. This argument goes a step too far with its unsupported assumption that if people are disturbed or offended by certain language, they will be less effective lawyers. People can be offended, but still get their jobs done. And as I've already noted above, being affected by vile language or facts is a mark of empathy, not ineffectiveness--and recognizing the impact this language has on oneself and others can help attorneys craft arguments that appeal to a range of judges or jurors.

Even though people can perform under difficult circumstances, this does not mean that multiple instances of offensive language or behavior do not eventually take a toll. And it does not mean that people in Volokh's position shouldn't take steps to minimize the negative impact their actions will have on others. Taking such steps isn't coddling, it's basic decency.

Moreover, attorneys faced with similar instances of offensive or vile language and behavior operate under different circumstances than law students. Many attorneys choose their clients, and if a potential client behaves in a way that the attorney finds offensive, the attorney may simply choose not to work for that client. Some attorneys like public defenders have clients appointed to them, but these attorneys can exert pressure on their clients to change their behavior, as offensive actions and remarks are unlikely to play well with judges and juries. Attorneys with existing clients, or who have less of a choice of who they choose as clients, can exercise this control as well--using the threat of a bad outcome or sanctions as motivation to get clients in line. And if it is the other side that is acting badly, effective attorneys will document this behavior to use it against the other side at deposition, trial, or in a motion for sanctions.

Beyond choosing whether to take his class in the first place, students in Volokh's class have little ability to exert control over Volokh's actions. And the limited availability of classes or spaces in those classes often removes students' ability to choose what course to take altogether. Volokh's post makes it clear that he is unwilling to change, as an apology from the dean resulted in nothing more than him doubling down on his behavior.

Volokh's arguments rely on an unrealistic portrayal of practicing attorneys, a failure to acknowledge the stress of the legal profession, and a refusal to consider the dynamics between professors and students.

My original plan for this post was to expand on the argument that Stiegler made in his series of tweets and the argument I made in my own thread here. That argument--in short--criticizes the (all too common) use of bad practices in the legal world to justify unusual and offensive teaching techniques. I'll get to that argument in my next post.

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Does Quartering Troops in Hotels Implicate the Third Amendment?

With protests sweeping the nation, various cities have called on the National Guard to provide support for law enforcement officers. The District of Columbia is one such city, and among the soldiers sent to DC were National Guard Soldiers from Utah. An NPR report quotes a National Guard spokesperson, who stated that the National Guard soldiers had been quartered at the hotel and paid "government rates" for the housing.

Fast forward to today, where continued protests and criticism of the presence of troops has started to take a toll. The Salt Lake Tribune reports:

Utah National Guard soldiers and other forces from states deployed to the nation’s capital were forced out of their hotels on Friday morning in what Sen. Mike Lee called an eviction by an “ungrateful mayor.”

The mayor of the District of Columbia, Muriel Bowser, said this week that she wanted National Guard troops out of the district, which has seen days of protests — some of which have been violent — over racial injustice and the death of black Americans at police hands.

Utah’s 200 soldiers in the nation’s capital had been staying at a Marriott hotel near downtown Washington since they’re activation on Monday but were checking out Friday after being deployed to various parts of the capital city until the early morning hours.

The Utah Guard had until noon Eastern Time to depart their hotel and lodging and other accommodations were “still up in the air for this evening,” said Lee's spokesman Conn Carroll.

 Lee voiced his complaint on Twitter in the following tweets:

Just heard that Mayor Bowser is kicking the Utah National Guard out of all DC hotels tomorrow. More than 1200 troops from 10 states are being evicted. This is unacceptable. 1/2

— Mike Lee (@SenMikeLee) June 5, 2020

These brave men and women have risked their lives protecting DC for three days. Rioting, looting, arson, and vandalism have all disappeared bc these soldiers served. And now they are being kicked to the curb by an ungrateful mayor. This must be stopped. 2/2 pic.twitter.com/YYyctKvUqN

— Mike Lee (@SenMikeLee) June 5, 2020

People on Twitter were quick to respond by arguing that Lee was calling for the quartering of soldiers in hotels--a position they argued was inconsistent with the Third Amendment, which states:

No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.

The Salt Lake Tribune noted this response from Lee's spokesperson to the Third Amendment issue:

Carroll said the issue has nothing to do with the Constitution’s 3rd Amendment — which prohibits forcing a homeowner to quarter troops without the owner’s consent — but a political move by Bowser.

Twitter is abuzz with debate over the issue, with some people claiming that the Third Amendment will finally get some attention, and others arguing that this sentiment is overblown. There seems to be an assumption that the officers were removed as a result of the Third Amendment being invoked by Mayor Bowser, but I have seen nothing suggesting that this is the case.

A lot of this talk is off the cuff, and bereft of case law and authority. Maybe these commentators don't realize that at least one court has addressed Third Amendment claims before. Maybe they are fair weather Third Amendment enthusiasts (unlike myself, and the National Anti-Quartering Society). Whatever the explanation may be, here is the in-depth analysis of the Third Amendment questions you were undoubtedly waiting for.



In Engblom v. Carey, two correction officers at a prison sued the state of New York, arguing that their Third Amendment rights were violated when they were evicted from their facility-residences so that members of the National Guard could be housed their during a correction officer strike. The residences at issue were located in a building a quarter mile from the prison, and included rooms with beds, dressers, and other fixtures, a private or semi-private bath, and shared common kitchens. A department directive set forth conditions of occupancy and, among other things, referred to the occupants as tenants and required a $36 per month payroll deduction for each occupants to described as "rent" or "rental cost." There were restrictions against overnight guests and personal firearms.

The Second Circuit Court of Appeals started by agreeing with the district court that the Third Amendment was incorporated into the Fourteenth Amendment and therefore applied to actions by the states. It then noted that the officers' Third Amendment claim was "novel" and "rarely invoked in the federal courts." The court found that the National Guardsmen were "soldiers" within the meaning of the Third Amendment. The court then noted that there was little background on the Third Amendment, as there was no case law directly construing the amendment, and "little illumination" from the Constitutional Convention debates.  The court noted that "a technical and literal reading of the language . . . would only protect fee simple owners of houses," but the court rejected this "formalistic" reading:

The Third Amendment was designed to assure a fundamental right to privacy. Griswold v. Connecticut, 381 U.S. 479, 484, 85 S.Ct. 1678, 1681, 14 L.Ed.2d 510 (1965); Poe v. Ullman, 367 U.S. 497, 81 S.Ct. 1752, 6 L.Ed.2d 989 (1961), at 552, 81 S.Ct. at 1781 (Douglas, J., dissenting), 549, 81 S.Ct. at 1779 (Harlan, J., dissenting). Since the privacy interest arises out of the use and enjoyment of property, compare Griswold, supra (privacy in marital relationship), an inquiry into the nature of the property-based privacy interest seeking protection becomes necessary. In closely analogous contexts rigid notions of ownership are not prerequisites to constitutional protections. When determining whether a legitimate expectation of privacy exists for the purposes of the Fourth Amendment, for instance, the Supreme Court has rejected the notion that a protected privacy interest in a place must be "based on a common-law interest in real or personal property." Rakas v. Illinois, 439 U.S. 128, 143-44 n.12, 99 S.Ct. 421, 430-31 n.12, 58 L.Ed.2d 387 (1978). Rather, the Court stated that "one who owns or lawfully possesses or controls property will in all likelihood have a legitimate expectation of privacy." Id. (emphasis added). Similarly, in applying the due process clause, the Court has extended its procedural protection "well beyond actual ownership of real estate, chattels, or money," Board of Regents v. Roth, 408 U.S. 564, 572, 92 S.Ct. 2701, 2706, 33 L.Ed.2d 548 (1972), and has interpreted "property" as "not limited [to] a few rigid, technical forms," but as "denot[ing] a broad range of interests that are secured by `existing rules or understandings.'" Perry v. Sinderman, 408 U.S. 593, 601, 92 S.Ct. 2694, 2699, 33 L.Ed.2d 570 (1972). A rigid reading of the word "Owner" in the Third Amendment would be wholly anomalous when viewed, for example, alongside established Fourth Amendment doctrine, since it would lead to an apartment tenant's being denied a privacy right against the forced quartering of troops, while that same tenant, or his guest, or even a hotel visitor, would have a legitimate privacy interest protected against unreasonable searches and seizures. See, e.g., Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960) (friend's apartment); United States v. Agapito, 620 F.2d 324, 333-35 (2d Cir.) (hotel room), cert. denied, 449 U.S. 834, 101 S.Ct. 107, 66 L.Ed.2d 40 (1980); United States v. Bell, 488 F.Supp. 371 (D.D.C.1980) (apartment tenant)

Accordingly we hold that property-based privacy interests protected by the Third Amendment are not limited solely to those arising out of fee simple ownership but extend to those recognized and permitted by society as founded on lawful occupation or possession with a legal right to exclude others. (bold emphasis added).

The court went on to find that the officers had "a legitimate expectation of privacy protected by the Third Amendment," and reversed the lower court's summary dismissal of the Third Amendment claim. 

With that background, let's get to the two key questions. First, does the situation involving the DC hotel and Utah National Guard soldiers involve a Third Amendment question? And second, could the Third Amendment be invoked if soldiers were quartered in a hotel?

As to the first question, the answer appears to be no. While people are asserting that DC's mayor invoked the Third Amendment, there is no indication that this is true. Indeed, her spokesperson simply stated that the city would not pay for the quartering of troops that it no longer wanted. And even if the mayor had invoked the Third Amendment, it is unclear whether such an argument would succeed--as the Third Amendment protects the rights of the hotel owners (and potentially those staying at hotels whose stays are cut short as a result of the troops' arrival). 

I have not seen any statements from the hotel's owners regarding their position on the presence of troops--but I suspect that absent the mayor's action, they would agree to quarter troops.  The hotel has an incentive to agree, because the National Guard is paying for the rooms, which brings in income during a time where business for hotels has sharply decreased.  Additionally, refusing to allow the troops to stay could create a public relations problem and hurt future business, as the hotel is a "regular spot for U.S. Army events."

The second question--whether the Third Amendment applies to situations where soldiers are quartered in a hotel--is more interesting, and the answer is far less certain. A restrictive interpretation of the Third Amendment's text suggests that the Third Amendment does not apply to hotels. One can argue that hotels are distinct from "houses," as many staying at hotels do so only for short terms, and the owners of the buildings in many cases do not live at the hotel. This argument may go too far in some cases, though, as some people stay in hotels for long periods of time and may be more akin to tenants in an apartment than an overnight hotel guest. Engblom's broad interpretation of "Owner" suggests that in these cases, the people staying in the hotel may have a Third Amendment claim, even if the owner of the hotel does not (or chooses not to assert a claim).

Additionally, in the emphasized portion of the quote above, Engblom notes the importance that the Third Amendment's scope of protection be coextensive with Fourth Amendment protections. The court remarks that it would be an "anomalous" result for a person to have rights against unlawful searches and seizures in a residence, while not having a right against troops being quartered there. This logic can be applied both to hotel residents (who have long-recognized Fourth Amendment rights against searches and seizures of hotel rooms) and, to a lesser extent, hotel owners (who are protected from mandatory searches of their records of guests).

A response to this argument is that it is not strange to claim that the scope of the Fourth Amendment to be broader than the Third Amendment. Indeed, the text of the Fourth Amendment is broader--as it protects persons, houses, papers, and effects--while the Third Amendment only applies to houses. And if an intrusion into a hotel room violates the Fourth Amendment but not the Third Amendment, the person staying in that room can still assert a Fourth Amendment claim. 

Since the only significant precedent opts for a broad interpretation of the Third Amendment, I suspect that many courts would approach a hotel or hotel resident's Third Amendment argument in a similarly broad way. This may lead some courts to conclude that quartering troops in hotels implicates the Third Amendment. But there are opportunities for courts that want a more restrictive reading--for instance, courts could distinguish Engblom because it did not involve a dispute over the meaning of "houses," and only discussed "owners." 

The DC case will probably not bring about the Third Amendment litigation we are all hoping for. But it highlights issues that courts will need to address should this largely-forgotten Amendment be invoked in the future.

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Has President Trump Already Pardoned Roger Stone?

There are a lot of people out there who generally express reasonable opinions and seem normal, but who nevertheless are willing to entertain the odd outlandish belief. You may get through your workday without incident while believing that the world is flat, that we are living in a computer simulation, or that the spelling of "The Berenstain Bears" is evidence of a parallel universe. Indeed, you may believe all of these things and still get along just fine with your friends and coworkers.

I'm not here to judge you. Instead, desperate for distraction from quarantine and curfews, I've cooked up my own wild theory--a theory that I may have fooled myself into believing is true. Maybe I'm right. Or maybe I've just been stuck inside for too long.

News outlets have reported for some time, with renewed interest today, that President Trump may be about to pardon Roger Stone, who was sentenced to three years in prison back in February after being convicted of lying to authorities, obstructing a congressional investigation, and witness intimidation. My wild theory is that Stone has already been pardoned as a result of Trump's tweets.

From Politico, earlier today:

President Donald Trump on Thursday promised his longtime informal political adviser Roger Stone would not serve time in prison, revealing the convicted Republican provocateur “can sleep well at night” and reprising his fiery criticisms of former special counsel Robert Mueller’s probe. 

The pledge from the president came on Twitter, after Charlie Kirk, the founder of the conservative group Turning Point USA, wrote Tuesday that Stone “will serve more time in prison than 99% of these rioters destroying America” — referring to the ongoing nationwide protests over the killing of George Floyd, a 46-year-old black man, by a Minneapolis police officer. 

“This isn’t justice,” Kirk added. “RT for a full pardon of Roger Stone!” 

Trump went on to share the tweet Thursday morning, writing in his own accompanying message: “No. Roger was a victim of a corrupt and illegal Witch Hunt, one which will go down as the greatest political crime in history. He can sleep well at night!”

Here is the tweet:

No. Roger was a victim of a corrupt and illegal Witch Hunt, one which will go down as the greatest political crime in history. He can sleep well at night! https://t.co/HHg24tcZrx

— Donald J. Trump (@realDonaldTrump) June 4, 2020

This is not the first time Trump has tweeted something like this. Kirk wrote a similar tweet criticizing Stone's conviction back in April, which also prompted a response from Trump:

This is a disgraceful situation! https://t.co/s2qZSrGw6U

— Donald J. Trump (@realDonaldTrump) April 18, 2020

Politico and other outlets are reporting that Trump's tweet today appears to be a promise by Trump to pardon Roger Stone, as his suggestion that Stone "can sleep well at night" strongly suggests that Stone will not end up spending the night in prison (because he will be pardoned).

I'll go a step further and suggest that there's an argument to be made that this tweet itself (and his April tweet) constitute a pardon of Roger Stone. 



The Argument

Trump's tweet is a quote-retweet of Charlie Kirk, an outspoken commentator whose shtick is to appear down with the youths and whose tweets are frequently hyperbolic, misleading, or false. In addition to Kirk's false claim that Stone was sentenced to prison simply because he supports Trump, Kirk's tweet includes this key, final sentence: "RT for a full pardon of Roger Stone!"

For those who are unfamiliar with Twitter, first let me say good for you! Here's some background: the last sentence in Kirk's tweet is a request for retweets (RTs). Twitter users can hit a "retweet" button that appears below another user's post ("tweet") that shares that tweet with the retweeting user's followers. The typical goal behind retweeting something is that it results in the original tweet being shared with a larger audience. Users have the option of simply retweeting, which shares the tweet (with a little note that the user retweeted it) with that user's followers, or quote-retweeting, where they share the original tweet, plus their own commentary, with their followers. That is what Trump did here.

For members of the general public on Twitter, the statement "RT for a full pardon of Roger Stone!" is similar to a petition, as retweets symbolize agreement with Kirk's sentiment. If I thought that Roger Stone should receive a full pardon, I could retweet Kirk, both to spread the word, and to express my agreement with Kirk. While there are some users who occasionally claim that "retweets are not endorsements," this is generally unconvincing--particularly as users now have the option to make critical quote-retweets of statements with which they disagree. In any event, Trump has no such caveat in his account description.

For nearly all Twitter users, retweeting or quote-retweeting has the effect of spreading the message, expressing agreement, or--in the case of certain quote retweets--expressing criticism. But for the president, retweeting Kirk's particular message may have an additional effect--as he, and only he, has the power to issue the pardon. Kirk's tweet is worded without qualifications--rather than saying "RT if you think Stone should be pardoned!" it asks other users to retweet "for a full pardon."

Indeed, the specific wording of the tweet suggests that it may be aimed at Trump in particular. Stone may argue that if Trump retweets, he is not expressing mere agreement or stating his opinion--he taking an action that, given the context of the original tweet, constitutes a full pardon of Stone.

An analogy would be that Kirk is standing in public, holding out a pardon of Stone for everyone to sign. I could sign it. My friend Max could sign it. This would have no legal effect. Our signing the document could be taken as an expression of agreement that Stone should be pardoned--albeit in a somewhat awkward way. But if Trump happens to sign the pardon, then the legal effect of doing so is that Stone is pardoned. That, Stone can argue, is precisely what Trump has done here. Kirk's tweet indicated that a retweet could constitute a full pardon, Trump retweeted, and the pardon has been effectuated.

Can The President Pardon Someone Via Tweet?

The presidential pardon power is almost entirely a matter of presidential discretion. While the Constitution limits the president from exercising the pardon power in cases of impeachment, it does not set forth specific procedures or requirements that the president must follow when issuing the pardon. And although there are regulations in place governing the procedure for submitting a petition for clemency (see 28 C.F.R. § 1.1, et seq.), these regulations are advisory and do not restrict the president's authority. 28 C.F.R § 1.11.

Some background on the historic exercise of the pardon power is here. And commentary on Trump's particular pardon practices is here.

News outlets and commentators have emphasized the lack of constraints on the pardon power in light of President Trump's use of pardons on political allies. Following the pardon of Joe Arpaio, the BBC speculated that Trump could pardon someone via tweet--suggesting that signing his name at the end of the tweet would be the equivalent to a signature on a pardon. That article cites to this 1929 memorandum by Acting Solicitor General Alfred A. Wheat to the Attorney General, which notes that the Constitution does not prescribe how the president should exercise the clemency power and that it is "wholly a matter for the president to decide, as a practical question of administrative power." Wheat goes on to suggest that the pardoned person should at least have "some token to show that he has been pardoned," such a token need not bear the president's signature. While Wheat cites an 1893 executive order that requires pardons to be countersigned by the Attorney General, the scope of that order is limited to warrants of pardons and commutations "heretofore prepared at the Department of State on the requisition of the Attorney General," and would not apply to a pardon tweet.

As the BBC notes, Wheat could not have contemplated something like Twitter when he wrote his 1929 memo. But the general points Wheat sets forth in his memo confirm the breadth of the president's pardon power, and several of his statements are applicable to Trump's present day practices.

In light of the president's broad pardon power, there is a strong argument that Trump could pardon someone by tweet. The tweet itself could be the "token" showing that a person has been pardoned, and the fact that it comes from Trump's verified account can be treated as the equivalent of a signature. There are responses to both of these arguments--particularly, there may be a factual question as to whether Trump himself wrote the tweet. But courts would likely refuse to second guess a purported pardon-by-tweet, as lack of constitutional and legal procedural requirements would constitute a political question. For more on court's unwillingness to second-guess pardons, see the discussion at the end of this prior post.

Counterarguments

There are many arguments that Trump has not pardoned Stone with his tweet. Some are stronger than others, but all of them have some issues.

One response would be to run with the petition analogy that I used above. Kirk's tweet served no purpose other than a forum in which people could express their agreement that Stone should be pardoned. Trump's quote-retweet was therefore akin to signing a petition that Stone be pardoned rather than signing the pardon itself. This is how media outlets have interpreted the tweet, treating it not as a pardon, but a strong suggestion of an impending pardon.

The absolute nature of Kirk's original tweet undermines this interpretation. Moreover, Trump has previously tweeted suggestions that he will pardon somebody. He did so in mid-March with former national security adviser, Michael Flynn, stating "I am strongly considering a Full Pardon!" Unlike the Roger Stone tweet, that prior tweet was not made in response to a tweet asking for users to "retweet for a full pardon." And the Flynn tweet was qualified with language that Trump was "strongly considering" the pardon. There is no such qualifying language in the present tweet.

Alternatively, one could argue that Trump's quote-retweet of Kirk's original tweet is not an outright retweet, so Trump has not technically "retweeted" Kirk. This argument is weak. Quote-retweeting, as the name suggest, constitutes a retweet with the addition of a comment. Rather than not being a retweet, it is a retweet, plus something else. Sometimes, a tweet may appear to be a quote-retweet because a user has linked to a tweet, rather than quote-retweeting it. But there is no link in the tweet suggesting that Trump copied and pasted the tweet at the end of his comment.

Another argument against the tweet being treated as a pardon is that it is, instead a refusal to pardon Stone, as it begins with "No." A narrow reading suggests that this contradicts the message of the quoted tweet. But this reading is not plausible. An uncomplicated contradiction would be a situation where Trump retweeted Kirk with a comment like, "Stone is a good friend, but his trial was fair and I will not upset the court's ruling." Here, Trump's simple statement of "No," in the context of his full comment, which criticizes Stone's sentence, is much more plausibly read as a reaction to Kirk's statement in the original tweet that "This isn't justice."

A stronger argument against the pardon interpretation is that Trump tweeted this from his personal account. Since he did not use the official presidential twitter account, this is simply Trump expressing his own opinion rather than taking official action. But the personal/official distinction is troublesome as well--particularly in light of case law regarding lawsuits by Twitter users who were blocked by Trump's personal account. Most recently, an en banc Second Circuit refused to review the Second Circuit's ruling that Trump's account "bear[s] all the trappings of an official, state-run account" and that the account is "one of the White House's main vehicles for conducting official business." And, as noted above, Trump's statement and its context was not couched in terms of opinion and contained no qualifiers as to whether Trump was "considering" pardoning Stone.

I have also seen arguments that Trump is prohibited from pardoning Stone, since doing so would be a pardon in a case of impeachment, which the Constitution prohibits. Those arguments are beyond the scope of this post, and do not alter the analysis on whether Trump has pardoned Stone through his retweets.

The sheer number of counterarguments, and the unusual nature of a pardon-by-retweet, appear to be enough to give pause to Stone and commentators from arguing that Trump has already issued a pardon. But if Trump's presidency and 2020 thus far are to be any guide, what may seem outlandish one day may be routine the next.

Conclusion

I don't expect anything to come of Trump's recent Stone tweet, since he tweeted essentially the same thing in April and Stone did not claim that he had been pardoned. I would be surprised to see Stone make such an argument now, as Trump has repeatedly expressed a desire to pardon him. If Stone were to start arguing the aggressive interpretation of Trump's tweets that I set forth above, this could jump the gun on what appears to be an inevitable pardon.

If Trump indeed goes ahead and pardons Stone, the discussion above will be moot for his case. But this phenomenon shouldn't be ignored--as Trump is pretty quick to retweet particular commentators on certain subjects. Charlie Kirk, and others like him, will likely tweet similar statements in the future, and this question will likely come up again. At the very least, the pardon argument and the counterarguments shed light on the flexibility of the pardon power and its application, and how the intricacies of technology relate to the pardon power and presidential actions more generally.

READ MORE - Has President Trump Already Pardoned Roger Stone?

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City in Japan Proposes Broad "Distracted Walking" Ordinance

The Independent reports:

Politicians in Yamato, about 25 miles southwest of Tokyo, have put forward a bill that could make it illegal for people to gaze at their devices while walking. 

The bill was submitted to the city’s assembly on 1 June. If passed, the law would come into effect from 1 July.

Officials said that people were unlikely to be punished for flouting the proposed new measures. 

Instead, the law has been designed to keep pedestrians safe when crossing roads, officials added. 

People are being encouraged to use their devices while standing in a spot where they are unlikely to pose a hindrance to others passing by.

The Daily Mail reports on the ordinance as well, claiming that city politicians "allegedly claim there has been an increase in injuries among people walking while distracted by their phones," and that this ordinance, if passed, would be the first such restriction on phone use while walking in Japan.

Both outlets cite various statistics regarding injuries resulting from distracted walking. The Independent cites a study by a Japanese telecom firm which simulated what would happen if 1,500 people crossed the Shibuya pedestrian crossing in Tokyo if all were looking at their smartphones--noting that there would be: "446 collisions, with 103 people getting knocked down while 21 others dropped their phones." The Independent and Daily Mail also refer to this study authored by researchers at the University of Calgary, which reviewed 14 studies and found that mobile phone conversation and text messaging increased rates of hits and close calls in intersections--with texting having a greater impact and resulting in decreased rates of looking left and right prior to crossing the street.

Because I cannot find a full text version of the cited University of Calgary study, it is difficult to evaluate--although the authors note that "a variety of study quality issues limit the interpretation and generalisation of the results." As for the telecom firm simulation, its assumption that absolutely everyone in the intersection would be on their phone is somewhat extreme. Indeed, researchers working for the city observed far lower rates of cell phone use, reporting a 12 percent user rate after observing 6,000 people at two "stations" in Yamato.

This proposed ordinance would be far broader than ordinances in US cities such as Honolulu, Hawaii, and Montclair, California. While those ordinances apply to cell phone use while crossing a street, the proposed Yamato ordinance would apply to "city streets and sidewalks as well as 'shared public spaces' such as plazas outside train stations." While the impact of the statute is offset by its lack of a punishment provision, its application to pedestrians who are not crossing streets is the first such ban of which I am aware.

I generally oppose bans on "distracted walking," as they tend to be based on studies and statistics that are uncertain at best, and because they criminalize common behaviors, which invites selective enforcement of the law. Yamato's ordinance is even broader, as it targets pedestrians both on and off the street. Additionally, the ordinance appears to have little basis in evidence, as most studies warning of potential injuries from pedestrian cell phone use stem from use of phones while crossing the street. Here's hoping that the ordinance fails, as it otherwise may serve as a model for other cities, states, and countries eager to implement their own bans.

READ MORE - City in Japan Proposes Broad "Distracted Walking" Ordinance

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