Category Archives: Politics

Education, Politics

A Teacher’s Guide to Free Speech Rights:

Understanding First Amendment Protections in Public Schools

Introduction

by R. Randall Hill

High profile firings as a result of comments made about the murder of Charlie Kirk was the primary motivation for this article.

Prior to his murder, I wasn’t familiar Charlie Kirk, however, his rhetoric was described as divisive, racist, xenophobic, and extreme by groups that studied hate speech, including the Southern Poverty Law Center.

Freedom of speech is an important contributor to critical thinking because it presents ideas and different points of view that might not be considered otherwise. Below is video of Shahid King Bolson, responding to the killing of Charlie Kirk, which in my opinion is one of the best responses I have seen!

As a public school teacher, you are both a government employee and a private citizen with constitutional rights. This dual status creates a complex legal landscape where your First Amendment right to free speech intersects with your professional obligations and your employer’s authority. Understanding these boundaries is crucial in today’s digital age, where a single social media post can have career-ending consequences.

It’s important to note that your First Amendment protections against your school district employer exist because of the Fourteenth Amendment’s Due Process Clause. Originally, the Bill of Rights only protected citizens from federal government actions, not state or local governments. Through a legal doctrine called “incorporation,” the Supreme Court has gradually applied First Amendment protections to state and local government actions, including those by public school districts. This means that while you work for a state entity, you retain constitutional protections that can be enforced in federal court.

This guide will help you navigate the intricate balance between your rights as a citizen and your responsibilities as a public educator, providing you with the legal knowledge needed to make informed decisions about your speech both inside and outside the classroom.

The Legal Foundation: Key Supreme Court Cases

Pickering v. Board of Education (1968): The Foundational Case

The Supreme Court’s decision in Pickering v. Board of Education established the basic framework for public employee speech rights that remains in effect today. Marvin Pickering, a high school teacher in Illinois, was fired for writing a letter to a local newspaper criticizing the school board’s allocation of funds between athletics and academics.

The Court ruled that Pickering’s dismissal violated the First Amendment, establishing that public employees do not surrender their free speech rights simply by accepting government employment. However, the Court also recognized that the government has interests as an employer that differ from those it has as sovereign.

The Pickering Test weighs:

  • The employee’s interest in commenting on matters of public concern
  • The state’s interest in promoting effective and efficient public services

Connick v. Myers (1983): Defining “Public Concern”

In Connick v. Myers, the Court refined the Pickering standard by establishing that speech must address a “matter of public concern” to receive First Amendment protection. Sheila Myers, an assistant district attorney, was fired after distributing a questionnaire to colleagues about office policies and morale.

The Court held that speech on matters of purely personal interest (like workplace grievances) receives less protection than speech on issues of broader public significance. This case established the critical first step in analyzing public employee speech: determining whether the speech addresses a matter of public concern.

Key Factors for “Public Concern”:

  • Political, social, or other concerns of the community
  • Issues that would be of legitimate news interest
  • Matters relating to political, social, or other concerns of the community

Garcetti v. Ceballos (2006): The Official Duties Exception

The Court’s decision in Garcetti v. Ceballos significantly narrowed First Amendment protection for public employees. Richard Ceballos, a deputy district attorney, faced retaliation after writing a memo questioning the truthfulness of a search warrant affidavit.

The Court ruled that when public employees speak pursuant to their official duties, they are not speaking as citizens and therefore have no First Amendment protection. This created what’s known as the “official duties exception.”

Critical Impact for Teachers:

  • Speech made as part of curriculum, lesson plans, or official communications may lack protection
  • The line between personal and professional speech becomes crucial
  • Academic freedom arguments may apply differently than general free speech protections

Rankin v. McPherson (1987): Context Matters

In this case, Constance McPherson, a deputy constable, was fired for saying “If they go for him again, I hope they get him” after learning of an assassination attempt on President Reagan. Despite the shocking nature of the comment, the Court found her dismissal unconstitutional.

The Court emphasized that the content, form, and context of speech must all be considered, and that even offensive speech on matters of public concern may be protected if it doesn’t disrupt workplace operations.

Modern Applications and Social Media Challenges

The Digital Transformation of Teacher Speech

Social media has fundamentally changed how teacher speech cases arise and are analyzed. Platforms like Facebook, Twitter, Instagram, and TikTok blur traditional boundaries between public and private expression, creating new legal challenges.

Key Social Media Considerations

1. Audience and Accessibility

  • Public posts are more likely to be considered matters of public concern
  • Privacy settings may not provide legal protection
  • Students, parents, and administrators may have access to “private” content

2. Professional vs. Personal Identity

  • Using your real name or school affiliation strengthens the connection to your employment
  • Professional photos or school-related content blur personal/professional lines
  • Time of posting (during school hours vs. personal time) matters

3. Impact and Disruption

  • Did the post cause actual disruption to the school environment?
  • Did it undermine your effectiveness as a teacher?
  • How did the school community respond?

Common Scenarios and Their Legal Analysis

Scenario 1: Political Expression

Example: A teacher posts on Facebook supporting or opposing a political candidate, tax levy, or controversial policy.

Legal Analysis:

  • Political speech typically addresses matters of public concern
  • Protection is strongest when posted on personal accounts during non-work hours
  • Risk increases if posts attack specific school officials or policies
  • Context matters: a post supporting higher education funding may be viewed differently than one attacking local school leadership

Protection Level: Generally HIGH, but depends on specific content and context

Scenario 2: Curriculum and Educational Policy Criticism

Example: A teacher criticizes standardized testing, curriculum changes, or educational policies on social media.

Legal Analysis:

  • Educational policy is clearly a matter of public concern
  • May be protected even if critical of employer’s policies
  • Risk increases if speech is made pursuant to official duties (e.g., as part of committee work)
  • Consider whether criticism is constructive vs. purely negative

Protection Level: MODERATE to HIGH, depending on role and context

Scenario 3: Student-Related Posts

Example: A teacher posts about challenging students, difficult parents, or classroom incidents without naming individuals.

Legal Analysis:

  • Generally receives less protection as it’s more about personal job grievances
  • Risk of privacy violations and professional ethics concerns
  • May not constitute “public concern” under Connick standard
  • High risk of disrupting school operations and relationships

Protection Level: LOW to NONE

Scenario 4: Personal Lifestyle and Off-Duty Conduct

Example: A teacher posts photos from social events, discusses personal relationships, or shares lifestyle choices.

Legal Analysis:

  • Personal lifestyle typically not a matter of public concern
  • Protection depends on whether conduct affects job performance
  • Community standards and local values may influence analysis
  • Higher risk in small communities where teachers are public figures

Protection Level: LOW, varies by community

Scenario 5: Social Justice and Controversial Issues

Example: A teacher posts about racial justice, LGBTQ+ rights, religious issues, or other socially divisive topics.

Legal Analysis:

  • Social issues typically constitute matters of public concern
  • High potential for community controversy and disruption
  • Balance between First Amendment rights and professional obligations
  • Consider school policies and community demographics

Protection Level: MODERATE, highly fact-dependent

Scenario 6: Criticism of School Administration

Example: A teacher publicly criticizes the principal, superintendent, or school board decisions.

Legal Analysis:

  • May be protected if addressing matters of public concern (policy, budget, educational quality)
  • Less protection for personal attacks or grievances
  • Consider whether alternative channels for complaints were available
  • Risk of workplace disruption and undermined authority

Protection Level: MODERATE, depends on nature and basis of criticism

Best Practices for Protecting Your Rights

Social Media Guidelines

  1. Maintain Separate Professional and Personal Accounts
    • Use privacy settings consistently
    • Consider using a pseudonym for personal accounts
    • Avoid connecting with current students on personal accounts
  2. Think Before You Post
    • Consider how content might be perceived by different audiences
    • Ask: “Would I be comfortable if this appeared in the local newspaper?”
    • Remember that screenshots can make “private” content public
  3. Understand Your District’s Policies
    • Review social media and technology use policies
    • Understand reporting and discipline procedures
    • Know your union contract provisions
  4. Document Everything
    • Save copies of posts that might be controversial
    • Document any retaliation or adverse employment actions
    • Keep records of policy violations alleged by administration

Professional Communication Strategies

  1. Focus on Issues, Not Personalities
    • Criticize policies and practices, not individuals
    • Use constructive rather than inflammatory language
    • Propose solutions alongside criticisms
  2. Choose Appropriate Forums
    • Consider internal channels before going public
    • Understand when union representation is appropriate
    • Know the difference between protected speech and insubordination
  3. Understand Timing and Context
    • Be especially cautious during contract negotiations
    • Consider the impact on ongoing school issues
    • Respect sensitive periods (crises, investigations, etc.)

When Protection May Not Apply

The Garcetti Exception in Schools

Speech made pursuant to official duties receives no First Amendment protection. For teachers, this includes:

  • Curriculum-related communications
  • Grade reports and student evaluations
  • Committee work and professional development
  • Official school communications

Disruption and Efficiency

Even protected speech can be restricted if it:

  • Materially disrupts school operations
  • Undermines working relationships
  • Interferes with educational mission
  • Creates safety or security concerns

Professional Ethics and Standards

Teachers are held to higher standards than other public employees regarding:

  • Student confidentiality and privacy
  • Professional conduct and morality clauses
  • Community role model expectations
  • Fitness to teach determinations

State Law Variations and Additional Protections

Academic Freedom Statutes

Some states have specific academic freedom protections that may provide broader rights than federal constitutional protections. Research your state’s specific laws.

Whistleblower Protections

Many states have whistleblower statutes that protect employees who report illegal activities, safety violations, or misuse of public funds.

Union Contract Provisions

Collective bargaining agreements may provide additional procedural protections and substantive rights beyond constitutional minimums.

What to Do If You Face Retaliation

Immediate Steps

  1. Document the situation thoroughly
  2. Contact your union representative
  3. Preserve all evidence (posts, emails, witness statements)
  4. Follow grievance procedures if applicable
  5. Consult with an employment attorney

Legal Options

  • Section 1983 civil rights lawsuits
  • State court wrongful termination claims
  • Administrative grievances and appeals
  • EEOC complaints if discrimination is involved

Recent Trends and Future Considerations

Technology and Privacy

Courts are still grappling with how traditional First Amendment analysis applies to:

  • Private messaging platforms
  • Disappearing content (Snapchat, Instagram Stories)
  • Anonymous posting
  • Location-based and time-sensitive content

COVID-19 and Remote Learning

The pandemic has blurred traditional boundaries between home and work, creating new questions about:

  • Speech during virtual classes
  • Home environment visibility
  • Off-duty speech with increased scrutiny

Political Polarization

Increased political division has led to:

  • More scrutiny of teachers’ political expression
  • Competing demands for political neutrality and civic engagement
  • State legislation attempting to restrict certain topics or viewpoints

First Amendment Protection Assessment Checklist

Use this checklist to evaluate whether your speech is likely to receive First Amendment protection:

Step 1: Basic Threshold Questions

  • [ ] Are you a public employee? (If no, First Amendment analysis doesn’t apply)
  • [ ] Is this about speech/expression? (Conduct without expressive elements isn’t protected)
  • [ ] Are you speaking as a private citizen? (Official duty speech under Garcetti is not protected)

Step 2: Public Concern Analysis

Does your speech address a matter of public concern? Check all that apply:

  • [ ] Political issues or candidates
  • [ ] Educational policy or school governance
  • [ ] Public spending or budget issues
  • [ ] Social issues of community interest
  • [ ] Safety or welfare concerns
  • [ ] Government misconduct or corruption
  • [ ] Issues that would be of legitimate news interest

Red flags (likely NOT public concern):

  • [ ] Personal workplace grievances
  • [ ] Individual student or parent complaints
  • [ ] Personal employment disputes
  • [ ] Purely private matters

Step 3: Context and Content Evaluation

Rate each factor (Low Risk = 1, Moderate Risk = 2, High Risk = 3):

Content Factors:

  • Personal attack on individuals vs. policy criticism: ___
  • Inflammatory language vs. constructive criticism: ___
  • Accuracy of statements: ___
  • Professional appropriateness: ___

Platform and Audience Factors:

  • Public accessibility of the speech: ___
  • Professional vs. personal account used: ___
  • Connection to your teaching identity: ___
  • Audience includes students/parents: ___

Timing and Context Factors:

  • Posted during work hours: ___
  • Related to current school controversy: ___
  • During sensitive periods (crisis, negotiations): ___

Step 4: Disruption Assessment

Has your speech caused or is it likely to cause:

  • [ ] Actual disruption to school operations
  • [ ] Interference with working relationships
  • [ ] Undermining of your teaching effectiveness
  • [ ] Parent or community complaints
  • [ ] Media attention or public controversy
  • [ ] Safety or security concerns

Step 5: Policy and Professional Standards

Does your speech potentially violate:

  • [ ] Specific district social media policy
  • [ ] Professional ethics standards
  • [ ] Student confidentiality requirements
  • [ ] Morality or fitness clauses in your contract
  • [ ] State teaching standards or regulations

Step 6: Protection Assessment

Based on your checklist responses:

STRONG PROTECTION LIKELY if:

  • Speech addresses clear public concern (Step 2)
  • Low risk scores in most Step 3 categories (mostly 1s)
  • No disruption evidence (Step 4)
  • No policy violations (Step 5)

MODERATE PROTECTION POSSIBLE if:

  • Speech arguably addresses public concern
  • Mixed risk scores in Step 3 (combination of 1s, 2s, 3s)
  • Minor disruption potential
  • Technical policy questions

WEAK OR NO PROTECTION LIKELY if:

  • Speech doesn’t address public concern
  • High risk scores in Step 3 (mostly 2s and 3s)
  • Clear disruption or interference
  • Clear policy violations

Step 7: Decision Framework

Before posting or after posting concerns arise, ask:

  1. Is this worth the risk? Consider your career stage, family obligations, and risk tolerance
  2. Have you exhausted internal channels? Sometimes internal advocacy is more effective and safer
  3. Do you have support? Union backing, community support, or legal resources
  4. What’s your end goal? Ensure your speech strategy aligns with your objectives

Warning Signs: Seek Legal Counsel Immediately If:

  • [ ] You’ve received disciplinary action related to speech
  • [ ] You’re facing termination or non-renewal
  • [ ] You’re being investigated for speech-related conduct
  • [ ] You’ve been told to remove online content
  • [ ] You’re experiencing clear retaliation patterns

Disclaimer: This guide provides general legal information and should not be considered legal advice. First Amendment law is complex and highly fact-specific. Laws vary by state and jurisdiction. If you’re facing employment action related to your speech, consult with an experienced employment attorney who specializes in public employee rights and First Amendment law. Your union representative can also provide valuable guidance and support.

Remember: The best protection is prevention. Think carefully before you post, understand your district’s policies, and when in doubt, consult with knowledgeable advocates before taking action that could jeopardize your career.

Education, Employment, Politics, Technology

The Erasure Protocol — A Dystopian Warning Rooted in History

Imagine waking up in a world where schools no longer exist, history books are banned, and even memory is policed.
That’s the chilling reality of The Erasure Protocol, the new dystopian novel by R. Randall Hill, author of Legal Research for Non-Lawyers and founder of Court.Rchp.com.

A Glimpse Inside the Story

“When they erase the truth, remembering becomes rebellion.”

In a near-future America where mass education has ended because of AI, citizens are divided into rigid classes:

  • Dependents, pacified with meaningless “comfort learning.”
  • Productives, trained only for repetitive labor.
  • Essentials, groomed to rule.

But one young woman, Maya, refuses to forget. With a hidden tablet and fragments of forbidden knowledge, she discovers that memory itself can be a weapon. As she connects with underground “Memory Keepers,” Maya must risk everything to challenge a system built on ignorance and control.

👉 Get your copy of The Erasure Protocol here

A Future That Echoes the Past

While fictional, the book is rooted in documented history:

  • From Roman “bread and circuses,”
  • To Bacon’s Rebellion,
  • To slave codes and the systematic exclusion of minorities from education.

These examples show how knowledge has been manipulated to maintain power. The novel’s warning feels urgent today, when schools and libraries face renewed pressure to restrict curricula or sanitize history.

Why This Story Matters Now

At Court.Rchp.com, our mission has always been to empower ordinary citizens with access to legal knowledge.
The Erasure Protocol carries that mission into fiction, reminding us that access to truth is never guaranteed—it must be protected.

As the story makes clear: the most dangerous phrase in any language may be “Don’t worry about it.”

A Tribute to Teachers and Knowledge Keepers

This novel is also a tribute to the educators, librarians, and ordinary citizens who preserve and share knowledge, often at great personal cost. They are the heroes who stand between truth and erasure.

About the Author

R. Randall Hill is the author of Legal Research for Non-Lawyers and the founder of Court.Rchp.com, a free self-help legal website. His work is dedicated to empowering ordinary citizens to access knowledge and defend their rights.

Get Your Copy

The Erasure Protocol is available now in PDF, and Kindle formats. Teachers, administrators, and school staff can receive a 50% discount as a thank-you for their dedication to education.

👉 Download The Erasure Protocol today or visit Amazon for Kindle.

Share the Message

If this story resonates with you, please share this article with a teacher, librarian, parent, or student who believes that education is freedom.

Closing Thought:
The most dangerous phrase in any language may be: “Don’t worry about it.”
The Erasure Protocol challenges us all to worry about it—to remember, to resist, and to keep the truth alive.

Access to Justice, Civil Rights, Politics

What the Supreme Court’s ruling on man wrongly deported to El Salvador says about presidential authority and the rule of law

Image

by Jean Lantz Reisz, University of Southern California

People hold signs on April 4, 2025, supporting Kilmar Abrego Garcia, who was mistakenly deported to El Salvador. AP Photo/Jose Luis Magana

The Supreme Court on April 10, 2025, unanimously upheld the lower court order directing the Trump administration to “facilitate” the return of Kilmar Abrego García, a Maryland man who was wrongly deported to a maximum security prison in El Salvador.

The Supreme Court also directed the lower court to clarify aspects of the order.

“The order properly requires the Government to ‘facilitate’ Abrego García’s release from custody in El Salvador and to ensure that his case is handled as it would have been had he not been improperly sent to El Salvador,” the Supreme Court order states.

It is undisputed that the Trump administration made a mistake.

The Justice Department admitted to deporting Abrego García to a maximum security prison in El Salvador even though an immigration judge in 2019 ordered that he not be deported. The judge did so under an immigration law called “withholding of removal,” which is a protection, like asylum, for people facing persecution in their home country.

But the Trump administration has said a court cannot order it to fix its mistake and bring Abrego García back to the United States.

According to the Trump administration, such an order would be “constitutionally intolerable.” The government has compared the court order to return Abrego García to an order to “‘effectuate’ the end of the war in Ukraine or return hostages from Gaza.”

Abrego García should not have been deported

Abrego García received this protective legal status six years ago. That’s when he proved to the court he was highly likely to be persecuted by the government or gangs in El Salvador due to a specific reason, as required under immigration law.

Unlike asylum or refugee status, the status known as “withholding of removal” is not a pathway to citizenship. It allows a person to live and work in the U.S. indefinitely and not be deported to their country of nationality if they face persecution there.

The government states it arrested and deported Abrego García on March 15 because he is a gang member. When Abrego García appealed his deportation, the federal district and appellate courts determined that the government provided no credible evidence of gang membership.

That’s important, because the government failed to follow proper procedure to deport Abrego García based on gang membership. When someone is in “withholding of removal” status, the law requires the government to reopen immigration proceedings based on new evidence and seek to formally terminate the legal withholding status.

Abrego García should have been notified of the government’s desire to deport him, and he should have had the opportunity to make his case at a court hearing. His summary deportation to El Salvador likely violated his right to due process under immigration law and the Constitution.

Balance of powers are at stake

The government did not follow the law, but it argues that the court cannot do anything about it.

The crux of the government’s position is that a court does not have the power to order the release of a person in a foreign prison. That would interfere with the separation of powers among the executive and judicial branches. The president has the sole power to conduct foreign relations with El Salvador, and the government has argued that ordering the return of Abrego García interferes with that power.

Prisoners behind bars look toward two men and one woman standing outside a cell.
Prisoners watch as U.S. Secretary of Homeland Security Kristi Noem visits the Terrorist Confinement Center in Tecoluca, El Salvador, on March 26, 2025. Alex Brandon/Pool/AFP via Getty Images

The court cannot order the Salvadoran government to do anything, but it can order the U.S. government to take steps to return García Abrego if he was unlawfully arrested and deported. That’s because the judiciary has the power to determine whether the president’s actions are lawful.

The district court’s order was based on its determination that the president has likely violated immigration law and the Constitution in arresting and deporting Abrego García. The appellate court agreed.

The Supreme Court has now said the order to facilitate Abrego García’s return is proper. But the high court also said the district court judge should further clarify its order, being mindful of the president’s authority when it comes to conducting foreign relations.

Who is detaining Abrego García?

The Salvadoran government seems to be imprisoning Abrego García at the request of the U.S. government.

Trump administration lawyers have suggested in their briefing to the Supreme Court that there could be reasons under El Salvador law for Abrego García’s imprisonment. The government has not identified any reasons and has not provided any evidence that Abrego García is charged with a crime in El Salvador, or that he is being held under Salvadoran law.

The Department of Homeland Security routinely contracts with local jails and for-profit prison corporations to temporarily house immigrant detainees in the U.S. The government has reportedly agreed to pay El Salvador US$6 million to imprison certain U.S. immigrant detainees for one year. The details of this agreement are not known.

Kristi Noem, the Homeland Security secretary, has said that the Salvadoran megaprison is “one of the tools in our tool kit that we will use.”

The district and appellate courts determined in this case that the U.S. is using the Salvadoran prison like any other detention facility. Under those circumstances, the U.S. government, not El Salvador, has ultimate control over Abrego García.

The US Supreme Court building is seen at dusk.
The Supreme Court ruled that the government should facilitate Abrego García’s return. Drew Angerer/Getty Images

As an immigration law scholar, I believe that the government can take steps to return Abrego García.

In fact, other appellate courts have ordered the government to return immigrants who had been removed from the U.S. but later won their appeals of their removal orders. Those people were not in foreign prisons.

U.S. Immigration and Customs Enforcement has created a formal policy for aiding the return of immigrants who were deported while their appeals were pending and then subsequently won their appeals.

The government has argued that those situations are different. Here, it claims the court cannot demand the return of Abrego García, who is imprisoned in another country. The problem with the government’s argument is that it is the Trump administration that put Abrego García in a foreign prison.

The Trump administration has also argued that Abrego García is not entitled to return to the U.S.. It has argued that even though it was a mistake to deport him to El Salvador under his withholding of removal status, Abrego García could have been removed to another country and has no right to return to the U.S..

This would be true if Abrego García voluntarily left the U.S. or was deported to a country other than El Salvador, but that is not what happened. The government removed Abrego García to El Salvador in violation of U.S. law.

The White House’s position in this matter is troubling because the president is supposed to enforce the law, not circumvent it.

As Justice Sonia Sotomayor wrote in a separate statement published with the order and joined by Justices Elena Kagan and Ketanji Brown Jackson: “The Government’s argument, moreover, implies that it could deport and incarcerate any person, including U.S. citizens, without legal consequence, so long as it does so before a court can intervene.”

What steps the government will take to return Abrego García is unclear. The Supreme Court’s decision leaves open the question of how far the court can go to enforce his return.The Conversation

Republished with permission under license from The Conversation.

Criminal Law, Politics

Yes, Donald Trump has a point about political prosecution

by Ronald Sievert, Texas A&M University

Donald Trump speaks to the media during a break in his criminal trial in New York on May 30, 2024. Michael M. Santiago/Pool/AFP via Getty Images

 

The facts and the law behind New York District Attorney Alvin Bragg’s successful prosecution of Donald Trump could be argued at length. But as a government prosecutor for 30 years, I have been most interested in the ethics of prosecuting that case.

Outside the courthouse after the verdict, Trump said, “This was a disgrace.” That echoes comments made over the year since his indictment in the case in which Trump repeatedly claimed the prosecution was “political persecution.”

There’s merit to his point.

A man at a lectern with a US flag behind him and a poster board with print on it next to him.
Manhattan District Attorney Alvin Bragg speaks during a press conference to discuss his indictment of former President Donald Trump on April 4, 2023. Angela Weiss/AFP via Getty Images

No one better outlined the important ethical standards that have enabled state and federal prosecutors to maintain an image of integrity and honesty than Supreme Court Justice Robert Jackson. In a speech to the nation’s federal prosecutors on April 1, 1940, he noted that prosecutors should select cases where the offense is “most flagrant and the public harm the greatest,” while warning that the prosecutor’s ability to choose defendants is the “most dangerous power.”

Choosing defendants, Jackson said, requires judgment. It is a power that can be abused.

“With the law books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding a technical violation of some act on the part of almost anyone,” Jackson said. In certain cases, he said, “it is not a question of discovering the commission of a crime and then looking for the man who has committed it, it is a question of picking the man and then searching the law books, or putting investigators to work, to pin some offense on him.”

It is when the prosecutor “picks some person whom he dislikes or desires to embarrass, or selects some group of unpopular persons and then looks for an offense, that the greatest danger of abuse of prosecuting power lies,” Jackson warned.

For years, as a federal prosecutor, I had been proud to stand up before the juries and announce, “Ron Sievert for the United States.” I believed that the majority of those in the courtroom understood that the federal government traditionally prosecuted cases that were the “most flagrant.” These were cases where, as Jackson said, “the public harm” was “the greatest.”

We prosecutors preserved our reputation of not prosecuting cases for political reasons by only pursuing cases where there were real victims, in the sense of bodily harm or financial loss. The U.S. Department of Justice had an unwritten but long-understood policy of never indicting and trying a politician for a nonviolent crime within one year of an election.

New York’s prosecution of Donald Trump can be, and has been, characterized long before today by some as a “political prosecution” because of the strong belief that a case on an allegedly false record would never have been brought if Trump were not running for president.

Justice Jackson warned that such a case, without an apparent victim, could undermine the public’s perception of the prosecution’s legitimacy. This prosecution may have upset Trump, but the real question is: Will it damage the good faith – both in the United States and internationally – that has been earned for decades by American public prosecutors?The Conversation

Republished with permission under license from The Conversation.

Criminal Law, Politics

Trump found guilty: 5 key aspects of the trial explained by a law professor

by Gabriel J. Chin, University of California, Davis

Donald Trump leaves the Manhattan courtroom after being found guilty on all 34 counts in his hush money trial on May 30, 2024. Justin Lane-Pool/Getty Images

After the May 30, 2024, conviction of former President Donald Trump on 34 felony counts of falsifying business records in New York, what comes next?

Trump’s legal team will likely appeal the verdict. “We will fight for our Constitution,” Trump said following the jury’s announcement. “This is long from over.” A sentencing hearing for Trump is set for July 11.

The Conversation U.S.‘ politics and society editor Amy Lieberman spoke with Gabriel J. Chin, a scholar of criminal law and procedure, to better understand the verdict.

An artist's rendering of a courtroom scene.
A courtroom sketch depicts Judge Juan Merchan, Donald Trump, prospective jurors and other court and legal personnel. Christine Cornell via AP Pool

1. Why were there so many different felony counts in this case?

The essence of the offenses Trump was convicted of is falsifying documents or records. Accordingly, each check, invoice or other document that the jury found had been falsified was a separate offense, which can be the basis of a separate count and punished separately. The prosecution wanted to make sure that the jury saw the full scope of the scheme it alleged had occurred – which is that Trump covered up the fact that he paid hush money to porn star Stormy Daniels by disguising the payment as a legal fee to his lawyer, Michael Cohen. Cohen then allegedly used Trump’s money to pay Daniels to stop her from talking about her alleged affair with Trump.

2. What is most important for people to understand about this conviction?

It is historic and groundbreaking for a former or future president to be convicted of felonies in the United States. There will be debate, and people will have to judge whether this prosecution is an example of the principle that no person is above the law, or whether this is an example of political persecution.

As a technical legal matter, this conviction has a significant effect on all of Trump’s other criminal and civil cases. At a minimum, it means that if Trump takes the stand to testify in any case, opposing lawyers will be able to attack his credibility with this conviction. Lawyers can argue that any witness with a felony conviction might well be lying.

Practically speaking, this verdict also means that Trump – who is registered to vote in Florida – cannot vote there until completion of his sentence. Under federal law, he cannot possess a firearm. But he can still run for president and serve in office, because nothing in the Constitution disqualifies people with convictions – or who are in prison – from running for, or serving as, president.

A man wears a blue suit and stands at a New York County lectern next to a poster that says 'People v. Donald J. Trump' and in front of an American flag.
Manhattan District Attorney Alvin Bragg speaks during a news conference about former President Donald Trump’s arraignment on April 4, 2023. Kena Betancur/Getty Images

3. What can we know, if anything, about what his sentence might look like?

New York judge Juan Merchan will decide the sentence alone, without a jury.

It is not surprising that sentencing has been set for July, rather than sooner. As in other cases, the probation office will prepare a report that lays out Trump’s background and history, and the facts and circumstances of this case. Trump has no criminal record, which is generally a favorable sentencing factor. On the other hand, he does have negative results from lawsuits, including a civil finding in 2023 that determined he committed sexual assault. One issue to look out for is whether the prosecution or the probation department argues that Trump’s other criminal charges and civil cases should be considered in sentencing.

One sentencing factor which sometimes comes into play is lack of remorse; it is often a reason judges impose a more severe sentence. It certainly does not seem that Trump has in any way acknowledged that he did something regrettable, or committed a crime. Trump’s violation of the gag orders in this case, which the judge has already punished him for, could also be a factor used to argue for or impose a higher sentence.

4. Given this verdict, is it likely that Trump will serve time in prison?

The offense of falsifying business records is deemed a “Class E” felony in New York state – and each felony has a potential sentence of up to four years. Probation is available instead of incarceration, or probation plus a short term of incarceration. Sentences may be imposed concurrently or consecutively, so theoretically Trump could get a sentence of 136 years if maximum sentences on all counts are imposed consecutively. But, while the sentence is up to the judge, based on past practice it is reasonable to speculate that Trump will not be sentenced to a long prison term, and may well receive no incarceration time at all.

A not-guilty verdict would have been final because of the Constitution’s prohibition against double jeopardy – meaning a person cannot be convicted, acquitted or punished more than once for the same offense.

This conviction will undoubtedly be challenged for years, and the appeals process could have at least two chances to get to the U.S. Supreme Court. Whether this case was appropriately tried in state court will also be an issue – federal authority over federal elections and election crimes is likely to be examined on appeal.

In other words, this case is not over by a long shot. It is likely that even were Trump sentenced to incarceration, he would be allowed to remain free, pending appeal. This practice is not uncommon in complex and high-profile cases, at least where there are reasonable legal claims of error.

5. What made the evidence so strong in this case that it persuaded jurors?

It is in part the breadth of the New York law which, unlike the law in many states, criminalizes falsifying internal business records even when they are private and not used to cheat the tax system or defraud anyone. But even in New York, generally falsifying private business records is a misdemeanor. It becomes a felony only if, as the jury found here, the actions are used to cover up or conceal a crime.

In this case, the jury may well have been persuaded by the prosecution’s argument that the crime covered up was essentially a scheme to defraud the American people by concealing information about the character and conduct of a presidential candidate.

Because Trump was alleged to have deceived voters, perhaps the jury was unwilling to simply shrug this off as business as usual. Another factor is the remarkable investigation that went into preparing this case. The prosecution had so many witnesses and documents that it could tell the story in highly specific detail.The Conversation

Republished with permission under license from The Conversation.

Criminal Law, Politics

What the Supreme Court is doing right in considering Trump’s immunity case

by Claire B. Wofford, College of Charleston

There was a lot of press attention paid to the Trump immunity hearing at the Supreme Court building on April 25, 2024. Mandel NGAN / AFP/Getty Images

Following the nearly three-hour oral argument about presidential immunity in the Supreme Court on April 25, 2024, many commentators were aghast. The general theme, among legal and political experts alike, was a hand-over-the-mouth, how-dare-they assessment of the mostly conservative justices’ questioning of the attorneys who appeared before them in the case known as Trump v. United States.

Rather than a laser-focused, deep dive into the details of Trump’s attempt to subvert the 2020 election, virtually all of the nine justices instead raised larger questions, peppered with hypotheticals – hello again, Seal Team Six! – about the reach of executive power, the intent of the nation’s founders and the best way to promote a stable democracy.

Justice Brett Kavanaugh’s “I’m not focused on the here and now of this case” and Justice Neil Gorsuch’s “We are writing a rule for the ages” drew particular fire.

The headline and subheadline on the New York Times analysis by Supreme Court reporter Adam Liptak complained that the court had taken “Trump’s immunity arguments in unexpected direction” with “very little about the President’s conduct.” And the story itself fumed that the justices had responded to Trump’s claim that he should not face charges as a “weighty and difficult question.”

Slate’s Amicus podcast decried the court for failing to focus on the “narrow question” the case presented, instead going “off the rails” and “bouncing all over the map” with various legal arguments. A guest on NPR’s 1A program lamented that the court had “injected new questions” into the oral argument to “slow-walk” the case and prevent Trump from facing trial before the election.

But here’s what the pundits seem to have forgotten: What happened that day in the court should have surprised no one, especially those constitutional scholars like me familiar with Supreme Court procedure.

A man in a dark suit and red tie emerging from a building with a police officer near him.
Donald Trump’s attorneys told the Supreme Court that the actions of a president should be immune from criminal prosecution. Curtis Means-Pool/Getty Images

Five words ‘change everything’

Trump’s case stemmed from his prosecution by Special Counsel Jack Smith for his alleged attempts to overturn the 2020 presidential election. Trump claimed he, as president, was immune from prosecution, and he took his case to the Supreme Court.

When parties appeal their case to the court, they must tell the justices what specific legal question or questions they want the justices to answer. As a colleague and I have explored in a recent academic journal article, the court generally accepts what is called the “Questions Presented” as given, agreeing to hear a case without making any adjustments to its legal framing.

Sometimes, however, the court will alter the legal question in some way. Why it does this is an issue that scholars like myself are just beginning to explore. And because it is that question – not the one the litigant initially asked – that frames the legal analysis, the justices can exert real control over both the case itself and the development of the law.

Trump v. United States is a classic example. When attorneys for the former president filed their request with the court, the question presented by them was “Whether the doctrine of absolute presidential immunity includes immunity from criminal prosecution for a President’s official acts.”

When it granted the petition in late February 2024, the court changed this language to “Whether and if so to what extent does a former President enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.”

Five of those additional words – “if so to what extent” – changed everything. They sent a clear-as-day signal that the court would move well beyond the simple yes-or-no of whether Trump could be prosecuted.

Nine men and women seated in two rows, wearing black robes.
The full Supreme Court, with nine justices, heard oral arguments in the immunity case. Fred Schilling, Collection of the Supreme Court of the United States

The court doing its job

With their reformulation of the question, the justices would instead be determining how, when and for what acts any president could ever be held criminally responsible.

That is a much larger inquiry, one that necessarily involves formulating a legal test to draw a line between what is constitutionally permissible and what is not. That the justices spent oral argument trying do exactly that is not a problem, much less an outrage: It’s just the court, the highest appellate court in the land, doing its job.

The scope of the argument, the expansiveness of the coming opinions and the time suck for the justices to write them and the possible vanishing of Trump’s prosecution are not at all shocking. The court signaled it would address the broader question months ago when it took the case; the time to fault the court for making the case about more than just Donald Trump was then, not now.

But perhaps commentators’ response to the oral argument can be a good lesson. Americans are told to take Trump at his word, expecting his second term to contain all the extremes he gleefully says it will.

When the Supreme Court indicates what legal question it will answer, the smart response is to do the same thing – pay attention and believe. This may not make the ultimate outcome any less distasteful to many, but at least it won’t be quite as disturbing.The Conversation

Republished with permission under license from The Conversation .

Criminal Law, Politics

What I teach Harvard Law School students about opening arguments

by Ronald S. Sullivan Jr., Harvard University

Former U.S. President Donald Trump appears in Manhattan Criminal Court on April 19, 2024. Sarah Yenesel – Pool/Getty Images

Though Hollywood movies about courtroom dramas often glamorize the closing arguments given by lawyers, in reality the opening statement is likely the most important single event of a trial.

Lawyers in the hush money case involving former President Donald Trump and alleged payments to porn star Stormy Daniels presented their opening statements on April 22, 2024, in New York.

In this case, Manhattan District Attorney Alvin Bragg charged the former president with 34 felony counts of falsifying business records as part of an effort to influence voters’ knowledge about him before the 2016 presidential election. Trump entered a plea of not guilty.

Academic psychologists tell us that between 65% and 75% of jurors make up their minds about a case after the opening statement. What’s even more incredible is that 85% of those jurors maintain the position they formed after the opening statement once all evidence is received and the trial is closed.

More often than not, it is too late by closing arguments to win over the jury.

This phenomenon comes as no surprise to veteran trial lawyers. They are aware of two theories that define how jurors – indeed, people generally – process information: the concepts of primacy and recency

These ideas suggest that jurors best remember what they hear first and what they hear last. It is vitally important, then, for lawyers on both sides to start their opening arguments with a bang.

The psychology of jurors

I have taught a course on trial advocacy for the past two decades at the Harvard Law School. Part of my curriculum is to teach budding lawyers how to deliver effective opening statements.

If the idea is to win over the jury by the end of the lawyer’s opening statement, how, in practice, is that done?

Trial lawyers steeped in the research know that juries respond to a well-considered theory of the case, punctuated by a pithy theme.

A theory of the case is a brief, three- to five-sentence statement akin to what is known as an “elevator pitch.” The theme is a short, pithy summary of the theory of the case that is easy for a juror to remember. Often the theme is the first sentence out of the lawyer’s mouth, followed by a fuller description of the theory.

Indeed, in my class at Harvard, the very first skill I teach is how to develop theories and themes. In order to effectively convey a theory in a case, many lawyers start their opening statements with “This is a case about …” and then fill in the specific details.

For example, the prosecution in a murder case may start their opening like this:

“Members of the jury, this is a case about the death of an innocent young woman, witnessed by concerned citizens, who all identify the only person with a motive to kill her, the defendant.”

A Black man wears a blue suit and stands at a New York County lectern next to a poster that says 'People v. Donald J. Trump' and in front of an American flag.
Manhattan District Attorney Alvin Bragg speaks during a news conference about former President Donald Trump’s arraignment on April 4, 2023. Kena Betancur/Getty Images

In stark contrast, the defense might start with something that is the complete opposite of the prosecution’s opening statement:

“Members of the jury, this is a case about a jealous ex-lover who shot a woman in cold blood, fled the country and left my client to take the fall.”

In each example, the jury is given enough information to frame the evidence they will hear throughout the trial.

After both sides have finished their openings, data shows that more than two-thirds of the jury will have come to a decision that will persist through the remainder of the trial.

Why do juries tend to behave this way?

Research also has taught trial lawyers that if you connect the jury with your theory of a case, at the beginning of the trial, jurors will process all the rest of the evidence – whether potentially helpful to the prosecution or to the defense – through the prism of that theory.

The importance of opening statements cannot be overstated. They set the tone and offer the jury a framework to understand the upcoming months of testimony they are about to hear.The Conversation

Republished with permission under license from The Conversation.

Politics, Race

Why rural white Americans’ resentment is a threat to democracy

by Thomas F. Schaller, University of Maryland, Baltimore County

Some white Americans are showing signs of disagreeing with key democratic principles. Carol Yepes/Moment via Getty Images

Rural white voters have long enjoyed outsize power in American politics. They have inflated voting power in the U.S. Senate, the U.S. House and the Electoral College.

Although there is no uniform definition of “rural,” and even federal agencies cannot agree on a single standard, roughly 20% of Americans live in rural communities, according to the Census Bureau’s definition. And three-quarters of them – or approximately 15% of the U.S. population – are white.

Since the rise of Jacksonian democracy and the expansion of the vote to all white men in the late 1820s, however, the support of rural white people has been vital to the governing power of almost every major party coalition. Which is why my co-author Paul Waldman and I describe rural white people as America’s “essential minority” in our book “White Rural Rage: The Threat to American Democracy.”

As a political scientist, I’ve written or co-written five books addressing issues of racial politics at some level of government or part of the country. My latest, “White Rural Rage,” seeks to understand the complex intersections of race, place and opinion and the implications they hold for our political system.

The unfortunate fact is that polls suggest many rural white people’s commitment to the American political system is eroding. Even when they are not members of militant organizations, rural white people, as a group, now pose four interconnected threats to the fate of the United States’ pluralist, constitutional democracy.

Although these do not apply to all rural white people, nor exclusively to them in general, when compared with other Americans, rural white people:

  • Express the most racist, least inclusive, most xenophobic, most anti-LGBTQ+ and most anti-immigrant sentiments.
  • Subscribe at the highest rates to conspiracy theories about QAnon, the 2020 presidential election, Barack Obama’s citizenship and COVID-19 vaccines.
  • Support a variety of antidemocratic and unconstitutional positions and exhibit strong attachments to white nationalist and white Christian nationalist movements inimical to secular, constitutional governance.
  • Are most likely to justify, if not call for, force or violence as acceptable alternatives to deliberative, peaceful democracy.

Let’s examine a few data points.

Xenophobia

In a Pew Research Center poll conducted in 2018, 46% of white rural Americans said it is important to live in a diverse community. That’s a lower proportion than urban and suburban dwellers and even nonwhite rural residents.

And in rural areas, fewer than half the people said white people have advantages Black people do not, approve of the legalization of same-sex marriage, and say immigrants make American society stronger.

In addition, Cornell researchers found that rural whites reported feeling less comfortable with gay and lesbian people than urban whites do. And 49% of rural LGBTQ+ people between the ages of 10 and 24 called their own towns “unaccepting” of LGBTQ+ people – nearly twice the rate of suburban and urban LGBTQ+ young people who said the same about their communities.

Conspiracism

Polls in 2020 and 2021 indicated that QAnon supporters are 1.5 times more likely to live in rural areas than urban ones, and 49% of rural residents – 10 points higher than the national average – believe a “deep state” undermines Trump.

Rural residents are also more likely than urban and suburban residents to believe the 2020 election was stolen from Trump, according to 2021 polling by the Public Religion Research Institute.

And people who live in rural areas are also less confident as a whole than those who live in urban areas that votes will be counted accurately and fairly in their state or across the country, according to a 2022 poll from the Bipartisan Policy Center.

In addition, by our analysis, of the 139 U.S. House members who voted to reject the certification of Joe Biden’s presidential election just hours after a violent mob of Trump supporters rampaged through the Capitol, 103 – 74% – represented either “purely rural” or “rural/suburban” districts, as categorized by Bloomberg’s CityLab project.

Antidemocratic beliefs

A scholarly analysis of multiyear data from the American National Election Studies project finds that rural citizens are “much more likely (than urban residents) to favor restrictions on the press” and to say it would be “helpful if the president could unilaterally work” without regard to Congress or the courts.

In addition, more than half of rural residents surveyed by the Public Religion Research Institute said being a Christian is important to “being truly American” – 10 percentage points more than in surburban or urban areas.

This is one of several signals that rural residents are disproportionately likely to support white Christian nationalism, an ideology that reaches beyond Christian ideas of faith and morality and into government. Its followers want the United States to base its laws on Christian values rather than maintain the centuries-old separation of church and state the founders saw as fundamental to a secular democracy.

Justification of violence

Rural residents are more likely than urban or suburban residents to say the political situation in the country is heading to a point where violence may be necessary to preserve the nation, according to polls from the Public Religion Research Institute in 2021 and the University of Chicago Institute of Politics in 2022.

Of the estimated 21 million Americans who in late 2021 said Joe Biden’s 2020 presidential win was “illegitimate,” according to the Chicago Project on Security and Threats, 30% lived in rural areas. And 27% of Americans who say Trump should be returned to office even if “by force” are rural residents. Those are minority views, but both proportions are significantly higher than the rural proportion of the overall population.

With the 2024 election fast approaching, the views of rural white people are once again of vital importance because they and the members of Congress who represent them disproportionately believe the 2020 election was stolen from Donald Trump by Joe Biden. A Pew Research Center study found 71% of rural white voters voted for Trump in 2020, so their preference in November will be key to who returns to the White House for a second term.The Conversation

Republished with permission from The Conversation under a Creative Commons license. 

Massacre, Politics, Terror

Israel’s apartheid against Palestinians

by Randall Hill

Israel and the United States will find themselves on the wrong side of history because of the atrocities being committed in the Gaza Strip. As this is being written, the death toll in Gaza surpassed 5,700, and 2,300 of those were children, this number doesn't include those still buried under the rubble of buildings destroyed by missiles.

First, let me state that I am not anti-Semitic! Anyone who disagrees with anything that Israel does is labeled as such. I have long admired Jewish success or dominance in certain industries such as banking, entertainment, law, and science among others despite Jews being less than 1% (.2%) of the world's population. One of my favorite books is "The Secret War Against the Jews". I can't say for sure, but I believe it was that book that explained how Jewish males were required to read to Torah. The Jewish people had a literacy head start of about two thousand years, one of the reasons for their success. 

Before going any further, it is important to understand the history of Palestine and Israel. Prior to WWII, the land now occupied by Israel was Palestine. The land was under British control and they allowed the UN to decide how to divide Palestinian land and give a majority of it to Israel. Below is a video that provides a brief history of the Israel-Palestine conflict.

Imagine the United States decides to allow some refugees to come to America and then comes to your home and divides a portion of your home for refugees and a smaller portion for you and your family. Then let's say the refugees decide they need more space and take an even larger portion of your home by force, preventing you from moving about freely, and deciding when and what you can bring home. That's what happened in Palestine. 

I hadn't planned on commenting on this topic until I saw that the City of St. Louis was considering a proclamation of solidarity with Israel which in my opinion a proclamation approving Apartheid and Genocide!

It was bad enough that President Bidden pledged U.S. solidarity and weapons support to Israel after it had committed war crimes by targeting civilians, but the fact that St. Louis was blindly jumping on the bandwagon was the final straw.

Last year, Amnesty International called Israel's Apartheid, "a cruel system of domination and a crime against humanity". Two years ago, Human Rights Watch, commented about Israel's crimes of Apartheid and persecution. The United Nations recently expressed concerns about Israel committing the crimes of ethnic cleansing and genocide.

During a 2013 speech in Jerusalem, President Obama counseled Israelis to "look at the world through" the eyes of Palestinians and recognize that "Neither occupation nor expulsion is the answer – just as Israelis built a state in their homeland, Palestinians have a right to be a free people in their own. Obama's speech below is set to start at 31 minutes and 40 seconds of the video where he talks about Palestine, however, feel free to watch the entire video.

The Palestinian oppression issue is so clear that hundreds of Jewish protestors in D.C. wearing T-shirts with the slogan, "not in our name", demanded that Congress pass a cease-fire resolution in the Israel-Gaza war amid an intensifying humanitarian crisis. They stated they didn't want to see atrocities committed against Palestinians in their name.  Award-winning Israeli journalist and author Gideon Levy, whose recent column for Haaretz states the obvious in the headline “Israel Can’t Imprison Two Million Gazans Without Paying a Cruel Price.” 

I don't condone Hamas' surprise attack on October 7th. Peaceful resolutions are always preferred, but as I have stated, "It's foolish to let your oppressor tell you that you should forget about the oppression that they inflicted upon you". It's equally foolish for your oppressor to dictate how you should respond to that oppression.

Remember that Nelson Mandela and the African National Congress (ANC) were considered terrorists. Mandela was not removed from the U.S. Terror Watch List until 2008. The oppressor sees a terrorist when the oppressed see a freedom fighter!

"A freedom fighter learns the hard way that it is the oppressor who defines the nature of the struggle, and the oppressed is often left no recourse but to use methods that mirror those of the oppressor. At a point, one can only fight fire with fire." – From Mandela's book, "Long Walk to Freedom"

As the conflicts between Israel and Palestine and Russia and Ukraine continue, remember, "War is a Racket", there is no greater profit generator than war. Remember what President Eisenhower said before leaving office, "Beware of the Military Industrial Complex". Those who make weapons and profit off conflict don't want peace, they want to sell more guns, bombs, ammo, planes, tanks, and other machinery of war. 

Criminal Law, Police, Politics

How Police and Politics Sabotaged Progressive Prosecutors Trying to Reform the Justice System

Editorial note by Randall Hill

The month before Kim Gardner was sworn in, I published an article that made the following prediction: "Make no mistake, if Ms. Gardner proves to be a fair prosecutor, there will certainly be those that will attempt to distort her statements, vilify her actions and generally discredit her. There is a private prison system that stands to lose millions of dollars under a non-oppressive system." 

The oppression of African-Americans is big business. Police officers often earn six figures annually, judges, prison food service, prison guards, probation officers, tech companies that supply ankle monitoring systems, and a multitude of others make their living and profits because of the continuing oppression of others. Take away the oppression and their income is taken away. Oppression and racism are big business, and always have been!

Article by Jeremy Kohler

After the 2014 fatal police shooting of Michael Brown in Ferguson, Missouri, and the months of protests that followed, the city of St. Louis was forced to reckon with its Black residents’ longstanding distrust of its police and courts.

Kim Gardner emerged as a voice for change. A lifelong resident of St. Louis, she had diverse professional experiences, having worked as a funeral director, a nurse, a lawyer, and a state legislator. When campaigning for circuit attorney, the city’s top prosecutor, she focused on the disproportionate frequency of arrests and police officers using force against St. Louis’ Black community.

Kim Gardner in 2022, when she was the St. Louis circuit attorney

“We need to change decades of old practices that left many in our community distrustful of the criminal justice system as a whole,” she told The St. Louis American, the city’s Black newspaper, just days before her decisive primary victory in August 2016 that all but sealed her general election win.

In the last decade, prosecutors in other major American cities also campaigned on promises of systemic reform: Kim Foxx in Chicago, Larry Krasner in Philadelphia, and Chesa Boudin in San Francisco.

Yet, much like Gardner, these prosecutors have faced resistance from the police and the unions that represent rank-and-file officers. They’ve been accused of being soft on crime and have even been met with political maneuvers aimed at derailing their initiatives. Several have been targeted by efforts to remove them from office or pare away their powers.

Boudin lost a recall vote and was removed in June 2022. And Krasner, criticized for his reduced emphasis on prosecuting minor crimes, was impeached by the state legislature in November, although a state court threw out the result.

In Florida, Gov. Ron DeSantis has removed elected prosecutors in Tampa and Orlando. He suspended Hillsborough County State Attorney Andrew Warren over Warren’s refusal to prosecute offenses related to abortion and gender-related health care. He suspended the state attorney for Orange and Osceola counties, Monique Worrell, because he said she wasn’t tough enough on some serious offenses.

Monique Worrell speaks at a press conference after Florida Gov. Ron DeSantis suspended her from her job as a state attorney

Georgia recently became the first state to establish a commission with the authority to discipline and even remove local elected prosecutors. Republican Gov. Brian Kemp framed the law as a way to check “far-left prosecutors.”

Gardner, who was reelected in 2020, stepped down in May of 2023 while facing both a lawsuit from the state attorney general that sought her removal and a separate attempt by the Republican-led legislature to curtail her authority. Gardner’s mismanagement of her office played a significant role in her downfall. Reform-minded lawyers who she personally hired had departed. And while judges fumed about prosecutors failing to show up for court, Gardner was moonlighting as a nursing student.

Though other prosecutors faced various challenges, there are no widely known instances like that of retired detective Roger Murphey in St. Louis, who has refused to testify in at least nine murder cases and hasn’t received any departmental discipline.

“For every progressive prosecutor who’s managed to stick it out, there’s one who’s either been recalled or driven out,” said Lara Bazelon, a University of San Francisco law school professor who volunteered on Boudin’s campaign and serves as chair of the commission he created to review inmates’ claims of innocence. “So it’s a real mix of success and cautionary tales.”

She added: “If the police are against you, or literally out to get you, you’re probably not going to be able to last in that job.”

Foxx, elected in 2016 and reelected in 2020, announced in April that she will not seek a third term next year, though she said it was not because of resistance from the police. In an interview, Foxx said that even before she took office, the Chicago police union felt threatened by her assertion that Black lives matter and that the criminal justice system could be more fair, particularly to communities of color.

Cook County State’s Attorney Kim Foxx announces that she will not seek reelection.

It was a signal, she said, “that I was not one of them.”

“The reality is we were offering something very different to what was traditionally viewed as the law-and-order approach to prosecution,” Foxx said. “I think it was surprising to folks that prosecutors could be elected addressing these issues.”

R. Michael Cassidy, a law professor at Boston College and an expert in prosecutorial ethics, said the Ferguson unrest emphasized the need for change in how police and prosecutors work. He said some prosecutors have failed to manage their relationships with police; prosecutors depend on the officers to bring them cases and to testify in court, but they must conduct oversight of the police as well.

Foxx pushed back against any assertion that she didn’t manage her relationship with police. She pointed to a popular Chicago police blog that often refers to her as “Crimesha” — “a play on the word ‘crime’ and what I believe to be a racist insinuation about me being Black with the name ‘-esha.’” The blog has also sexualized her last name by adding a third X and has insinuated that members of her family are connected to gangs.

“From the moment we came into office, we reached out to our partners in law enforcement, and what we saw was there was a segment of them who were never going to be satisfied with me in this role because I said ‘Black lives matter,’ because I said ‘We need police accountability,’ because I said that we had a criminal justice system that overly relied on incarceration that targeted Black and brown communities,” she said.

She said that she, Gardner, and other prosecutors “have been faced with an unprecedented level of hate and vitriol” from the police.

“That,” she said, “is the story.”

Chicago Fraternal Order of Police President John Catanzara and other union officials did not respond to requests for comment. But Catanzara told the Chicago Sun-Times in 2020 that the union’s complaints about Foxx were based on her job performance. He said she was a “social activist in an elected law enforcement position” who was unwilling to “faithfully do her job.”

The local police union organized a protest calling for the removal of Cook County State’s Attorney Kim Foxx in Chicago in 2019.

Boudin was elected in 2019 on a reform platform. Soon after taking office, he eliminated cash bail for most misdemeanors and nonviolent felonies. He also brought criminal charges against nine city officers for misconduct and announced a plan to compensate victims of police violence.

But as property crime rates climbed in San Francisco, Boudin came under increased scrutiny.

Cassidy said Boudin and other like-minded prosecutors have been scapegoated for isolated incidents or temporary spikes in crime statistics, as if they alone are responsible. In some cities, that has swung public opinion against them.

Chesa Boudin, during his time as San Francisco’s district attorney

Boudin said the claims were unfair and largely the product of police resistance to his reforms.

“We’ve seen, on body-worn camera footage, police officers telling victims there’s nothing they can do and, ‘Don’t forget to vote in the upcoming recall election,’” Boudin said in an interview.

Boudin said he and other local prosecutors have found “there is absolutely zero accountability for these officers who engage in explicitly political acts of sabotage or dereliction of duty.”

A spokesperson for the San Francisco police union declined to comment.

Some prosecutors have held onto their positions despite challenges to their power. In November, veteran public defender Mary Moriarty was elected county attorney for the jurisdiction that includes Minneapolis in the first election since the death there of George Floyd. The same night, Dallas District Attorney John Creuzot was reelected by a nearly 20-point margin in spite of calls by a police union for his ouster over his plan not to prosecute certain low-level offenses.

In August 2022, Sarah George, the incumbent state’s attorney in Vermont’s Chittenden County, which includes Burlington, secured her seat with a 20-point victory in the Democratic primary over Ted Kenney, a challenger backed by the police.

George had introduced a variety of reforms, including eliminating cash bail and declining to prosecute cases where evidence was obtained during noncriminal traffic stops, like those for broken taillights. The Burlington police union called her actions “disastrous” and Kenney argued that the approach made streets less safe.

George, too, has seen police body camera video of officers blaming her for crime. In one video, which she provided to ProPublica, the Riverfront Times and NPR, an officer from a suburban police department tells a couple that officers can’t do anything about a crack house in their neighborhood. He then implores them to vote for Kenney because of George’s “super-progressive, soft-on-crime approach where we arrest the same people daily and they get out the same day.”

George said that, with some crime investigations, the police are “not really doing the work that we need to do on the case, and then blaming us for the case not being filed.”

The Burlington police union declined to comment. The chiefs of police in Burlington and Winooski, the suburb where the video was taken, did not respond to messages seeking comment.

Gardner, too, often faced criticism from police for her reluctance to prosecute cases based on arrests alone. In one notable instance in 2019, she dropped child-endangerment charges against two daycare workers who were captured on video as they appeared to encourage toddlers to box using toy Incredible Hulk fists.

The police union called for her ouster, writing on Facebook: “The first rule of toddler fight club is … that you prosecute the sadistic promoters of toddler fight club.”

In comments made before her resignation, Gardner noted that she had been careful not to file criminal charges in cases where she did not feel there was enough evidence. “What they want me to do is make it look like this job is easy,” she said. “We can’t make things fit and people don’t like that. That’s not what justice is about.”

Richard Rosenfeld, a professor emeritus of criminology at the University of Missouri, St. Louis, was one of several researchers who pooled data from 65 major cities and found “no evidence to support the claim that progressive prosecutors were responsible for the increase in homicide during the pandemic or before it.”

Indeed, Chicago’s murder rate fell during Foxx’s first years in office, rose during the first years of the pandemic and has been falling this year, city crime statistics show. Philadelphia’s murder rate was in steep decline this year after a precipitous rise that started in 2020. And most categories of crime were in retreat in St. Louis at the time Gardner resigned, while violent crime was up in San Francisco a year after Boudin’s exit, according to statistics.

Acknowledging that the St. Louis police commonly blamed Gardner for crime trends, Rosenfeld, a veteran observer of policing in St. Louis, said, “Case not proved, is what I would argue there.”

Republished with permission from Propublica under license.