Category Archives: Faculty Scholarship

Blog author, Constitutional Law expert and WMU-Cooley Professor Brendan Beery  gives expert analysis surrounding media coverage regarding whether or not Donald Trump, Jr. committed treason. Professor Beery is a summa cum laude graduate of Western Michigan University Cooley Law School teaches Constitutional Law, Criminal Law, and Criminal Procedure. Professor Beery is a frequent legal expert in the media.

Until now, some pundits were hesitant to throw around the “C word” when discussing the Trump team’s seeming fetish for raw Russian power. That word was collusion. But the days when that word, and its attendant whiff of impossible scandal, were deemed hysterical or preposterous – well, those days, like the Biblical former world, have passed away.

The email exchange between Donald Trump, Jr. and a portly intermediary named Rob Goldstone proves that the Trump campaign did, in fact, collude with the Russians to defeat Hillary Clinton. To collude means to conspire (not necessarily in the legal sense), which in turn means to act in concert for the accomplishment of some improper purpose. As is the case with conspiring (even in the legal sense), colluding does not mean successfully executing some diabolical plan; it just means working together to try.

So the goalpost has moved. We’re on to the “T word.” Now the question isn’t whether Trump Jr. (and by extension the whole Trump operation) colluded, but whether Trump Jr. (or others similarly situated) committed treason. (Actually this is just one of many questions about many possible crimes, but since it’s in the ether, I want to focus on this one.) It’s way too soon to say that Trump Jr. did commit treason, and there are many voices out there screeching that he didn’t. (Jonathan Turley and Jeffrey Toobin, I’m looking at you.)

What I’d like to point out is that, just as it’s far too early to say that Trump Jr. did commit treason, it’s also a bit silly to have already concluded that he did not.

In the United States, treason is defined in the Constitution itself, not just a mere statute. Article III provides that treason “shall consist only in levying War against [the United States], or in adhering to their Enemies, giving them Aid and Comfort.” (A federal statute, which can’t change the standard, merely parrots it: “Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason …” 18 USC 2381.)

The two most important words in all of the law are and and or. Those words signal the relationships between ideas or elements, telling advocates whether they must show one thing, every item on a list of things, or some combination of things. We see that our Constitution’s definition of treason has an or in it – as well as at least one and.

Treason can consist either of waging war against the US or adhering to enemies of the US, giving them aid and comfort. As to the comma in that last sentence, let’s read that as an and, too (that’s the reading most favorable to Junior). That seems a fair reading; were a parent to tell a child, “You must get to bed, giving yourself plenty of rest,” that comma before giving certainly means and, not or – you should go to bed and get rest, not you should go to bed or get rest.

So we can represent treason, quasi-mathematically, this way: You commit treason if you

Levy + War + Against the United States

-or-

Adhere + To enemies of the US + Give those enemies (Aid + Comfort)

Let’s assume that, even though Trump Jr. might have participated in an attack on American democracy, he did not in any literal sense levy war against the United States. That leaves us with the question whether he adhered to an enemy of the US and gave that enemy aid and comfort.

Adhere

To adhere is to stick to or bind oneself to something. It can also mean to follow, as when one adheres to a religious belief. So the question would be whether Trump Jr. joined with or bound himself to something else – in this case, Russia (or Russians). It seems clear from his emails that he did join together with a foreign national to further a common purpose: the defeat of Hillary Clinton facilitated by Russian intelligence that, in all likelihood, would have been obtained through espionage. I note here how unlikely it is that Special Counsel Bob Mueller is going to believe Trump Jr.’s story that no ill-gotten information actually changed hands at the not-so-clandestine meeting. If this joining together turns out to have happened (in a way that is legally provable), then Trump Jr. seems to have adhered. On the other hand, if adhere means come under the spell of some anti-American orthodoxy (again, as in religious adherence), then we seem a long way from treason in this case.

Enemy of the United States

It’s true that when we talk about enemies of the US, we usually (historically) mean a country against whom we are engaged in a hot war. But the term “enemy” is not defined in the Constitution, and like most of the Constitution’s words, “enemy” is a broad and flexible term that should be interpreted in light of evolving realities. (Yes, the organic “living Constitution” view is the correct one, and “originalism” is highly suspect.) Many pols, lawyers, and national-security experts have claimed, with good reason, that what Russia did to the United States during the 2016 election cycle was nothing short of an act of war – not in the conventional sense, but in the sense that it involved key elements of war: an attack combined with the intent to achieve dominance over the United States by causing American institutions to malfunction and, ultimately, collapse. By that standard, Russia could be an enemy of the United States.

Giving Aid and Comfort

This term – aid and comfort – has always been broadly understood to mean nothing more than tangible help or assistance. The Russians had multiple objectives: to see the defeat of Hillary Clinton; to accomplish that end by employing espionage and subterfuge; to cause chaos in American politics; and to install an American government so compromised by Russian mischief as to be an extension of Vladimir Putin’s will. Trump Jr.’s emails arguably show that he was anxious to (and by accommodating the meeting request, actually endeavored to) help the Russians achieve those objectives. Critically, we don’t yet know the full extent of the Trump team’s efforts to help the Russians. Obviously, the deeper those efforts went, the stronger the case for treason becomes. We also don’t yet know the extent to which President Trump is compromised (his tax returns sure would help in that regard). The more compromised he is, the more likely it is that he and his family would have played along; the more likely it is that they would have provided aid and comfort.

Conclusion

One common misperception about treason, and one I’ve heard repeatedly recently, is that it requires a war and adherence and an enemy and the provision of aid and comfort. That’s not what the Constitution says, and it ignores the meaning of the word or: treason can be committed either by levying war or by acting in concert with an enemy to help that enemy attack the United States.

Without knowing about all the Trump team’s financial and other dealings with Russian officials, many of which are likely still to be discovered, it’s hard to say whether there was enough entanglement, symbiosis, and subversive conduct to rise to the level of treason. It would be absurd to conclude one way or the other at this point, but it is certainly not absurd, as talking-head thought police keep telling us, to discuss the possibility of treason and argue one side or the other. As long as we keep our focus on the standards discussed above, debate about the issue is both fair and healthy. File it under “civics 101” — the more we engage about constitutional issues, the better.

“If ‘stand-your-ground’ laws weren’t controversial enough, Florida has enacted new legislation (backed by the NRA) that has prosecutors fuming and criminal defense lawyers salivating. There was a time in American jurisprudential history when the law favored de-escalation over a more Wild-West approach to antagonistic interactions among humans.” – WMU-Cooley Professor Brendan Beery.

Listen to Professor Beery  in an interview with Bay News 9.

So the rule used to be that, even if someone else was the aggressor, a person had a duty to retreat before using deadly force; if the person (the non-aggressor) exhausted all reasonable possibilities for escape and had no reasonable alternative, then (and only then) that person was justified in using deadly force. Note the word “reasonable” sprinkled through that rule: that’s an objective test, meaning that a person could only use deadly force in self-defense if a person of ordinary intelligence and temperament would have done the same. In other words, “I’m a hot head” was no defense.

There was a common-sense exception to this rule (this duty to retreat) called “the castle doctrine.” One had no duty to retreat in one’s own home – a burglar-beware sort of rule. After all, if one is already in one’s safest environment – one’s home – then where is one to retreat to?

As a Miami judge, Milton Hirsch, recently pointed out, the “stand-your ground” rule that has since been adopted by many states essentially expands the castle doctrine to apply everywhere; even in a public place, if one is not the aggressor in an affray, then one no longer has any duty to retreat. And that “reasonable person” standard has diminished to the point of near extinction. In other words, if a person fears that he or she is at risk of death or serious bodily harm at the hands of a perceived aggressor, regardless whether a person of normal intelligence and temperament would also harbor such fear, that person may use deadly force against the perceived aggressor. (Although one still sees the word “reasonable” in some of these stand-your-ground laws, it is now largely ignored.) De-escalation is decidedly not the policy objective underlying this new approach.

When Florida first adopted this “stand-your-ground” approach, the state’s Supreme Court created rules for its implementation: since this was a defense that would be raised by the defendant in a criminal case, when the defendant raised a stand-your-ground defense, a trial court would hold a pretrial hearing at which the defendant would have the burden of showing, by a mere preponderance of the evidence (just a slight tipping of the scales in the defendant’s favor) that he or she was in fear of death or great bodily harm – and therefore justified in using deadly force. To most lawyers, this seemed an entirely predictable and appropriate approach; the burden is almost always with the party raising a defense, and the relatively easy-to-meet preponderance standard made sense in light of the policy choice Floridians had made to render the use of deadly force an acceptable means for resolving a brawl, no matter where it occurs.

As forgiving as the preponderance-of-the-evidence standard is, pro-NRA conservatives were not satisfied. So the Florida legislature changed the rules earlier this year: now, instead of the defendant having to show by a preponderance of the evidence that he or she was entitled to use deadly force, the prosecutor must show by clear-and-convincing evidence that the defendant was not entitled to use deadly force. Not only has the legislature placed the burden on what lawyers call the “non-moving party” (i.e. the party arguing against the claim, not for it), but it also elevated that burden well above the preponderance standard, making it harder to meet.

The upshot is that, when a defendant raises the stand-your-ground defense, a prosecutor must put on his or her evidence twice: once to overcome the stand-your-ground defense at a pretrial hearing, and again in front of a jury or judge at trial. To make matters worse for prosecutors, they must also, at the pretrial hearing, essentially prove a negative: not that something did happen, but that something did not happen.

As my colleague Professor Jeffrey Swartz points out, this is a criminal defendant’s dream in any case where the defendant used deadly force – with a gun or without a gun – and there was no witness to the alleged crime. In such a case, a defendant who produces any evidence that he or she feared death or great bodily harm can put a prosecutor through the proverbial ringer: the prosecutor will have to show that the crime happened as the prosecutor said it happened – first by clear-and-convincing evidence, and then beyond a reasonable doubt.

Judge Hirsch has refused to apply the new rules shifting and increasing the burden of proof, stating that under the Florida Constitution, such procedural rules for resolving cases must be set by the Florida Supreme Court, not the Florida legislature. Other judges disagree. Ultimately, the Florida Supreme Court will have to address that issue. In the meantime, welcome to the Wild West.

Blog author, Constitutional Law expert and WMU-Cooley Professor Brendan Beery  is a summa cum laude graduate of Western Michigan University Cooley Law School and teaches Constitutional Law, Criminal Law, and Criminal Procedure. Professor Beery is a frequent legal expert in the media.

Spring is the time of year when many libraries are looking at the calendar and realizing that an annual staff in-service date is not too far off. As an organizer of dozens of in-services over the years, I can tell you there are some key components to making them fun, effective, informative, and interesting. Librarians need to wear their organizer hat to develop a program, but also a fun and creative hat! – Duane Strojny, WMU-Cooley Law School Associate Dean of Library & Instructional Support

In 2002 when we hosted an ABA inspection for our additional campuses across Michigan, I was asked “How will you develop a community with the library across multiple locations?” My quick answer was, “Of course we’ll have in-services and since we have three breaks a year, we’ll do one every break!” That began the long road of in-services that spanned the bridge of creative possibilities. We liked the Olympic theme so much we used it twice. There was the Survivor one, another based on TV Guide, a series of three in one year covering “Who, Why, and How,” and one dealing with employee wellness. Through it all, I would be remiss to say that I couldn’t have done it without a very creative associate director. We would hash out content and creative approaches to so many ideas (some of those listed above).

We have had guest speakers from a silver medal Olympian to the president of a national insurance company. Someone spoke to us about organizing our offices and someone spoke to us about how law school financial aid works. We gave presentations on our budget that actually included numbers. The IT Department visited a few times to give insight into technology. At our height, we would let people sign up for classes (three choices over three different hours of the day). That one was tough to coordinate, but I think most of the employees liked the variety.

In 2012, we added a campus in Florida, so our challenge was to bridge the gap between there and Michigan. During one of our in-services that year, we acknowledged the first day of a new Florida employee. There was a lot of video conferencing. During one in-service team-building exercise, each small group had an iPad or laptop so at least one member of their team was from Florida. Challenging, yes, but always interesting from an administrative perspective.

Here are some of the planning and implementation tips for that long litany of programming:

Start planning early.

We usually began discussing the next in-service a week or two after the last one finished. Since one occurred every four months, two to three months of planning seemed like a lot to us. We talked weekly so that helped speed up the timeline. Bring in others early, especially if you want them to help present or coordinate events the day of the event.

Think outside the box.

No topic or theme was too outrageous. We made towers out of marshmallows and spaghetti. I was taped to the wall. Teams had to do scavenger hunts. I constantly reminded staff the primary goal was to get to know your colleagues from across the campuses. If you learned something to take to your desk the next day, that was a plus.

Use either a place in the law school away from the library or go off campus. We often meet in our main classroom spaces. We used a movie theater. We volunteered at Toys for Tots (in multiple cities at the same time). We toured a local courthouse. A group went to Dave and Buster’s. If you have funding, there are a lot of options. If not, consider the meeting room at your local public library or the clubhouse of an apartment complex. The typical locations where kids have birthday parties can be very quiet on weekdays and provide the break from the usual workplace.

Plan to have an icebreaker.

A lot of people don’t like these, but they do help set the tone for the day. This isn’t an ordinary work day. We want staff to interact in a different way. I like The New Encyclopedia of Icebreakers and The Encyclopedia of Group Activities. There are a lot of others as well as quite a few websites with ideas to be had for free.
Have some substantive content. Presenting information is important even if the topic doesn’t appeal to everyone. This can help pull together a theme or push an agenda item. We had someone speak about our new Professionalism Program and the library staff became the first group on campus to endorse it as a department. Our discussion about how a prospective student is recruited and enrolled gave everyone a great perspective of what happens in Admissions. The take away doesn’t need to be something to use at your desk, but rather helps give a greater perspective of how the school operates and the mission we serve.

Use experts at the law school or university.

Our law school president spoke. Our vice president of finance spoke. A faculty member led staff through a mock class. The career services director spoke. The chairman of our board spoke. The founder of our law school spoke. We had great speakers with little cost other than a meal. This creates a great sense of camaraderie between library staff and other departments at the school.

Seek feedback.

We always had evaluations. Of course, we never please everyone. The criticism of food drove me crazy, so we eventually took that off the evaluations. Hey, it was a free meal and we always had options that could accommodate every possible need. We also provided snacks galore during the course of the day. Plenty of fruit and yogurt, as well as the usual cookies and brownies appeals to everyone. Some people regularly said it was a waste of their time. They were busy. Remember, though, what your goal is: building community is number one. You want to be successful so evaluations help you learn from missteps.

With some thought and planning, an in-service can be a very useful event. Involving others in the planning can also give the person you least expect to lead an opportunity to shine. We have assigned tasks to groups, assigned tasks to individuals, and asked for volunteers. All approaches have worked well with the caveat that you cannot please everyone. When our staff was nearly 100 people, it was quite an undertaking. We invited permanent part-time staff, part-time reference librarians, and often, student employees. Now that we are a smaller group and our associate director has left, I have been forced to rethink the in-service concept. In the past we had special department in-services, librarian in-services, support staff in-services, and optional in-services. Today, with less staff, it is still important to have a goal when planning for an in-service. For me, that has not changed; build community by getting to know your colleagues and hopefully take something back to your desk for tomorrow.

Blog author, Constitutional Law expert and WMU-Cooley Professor Brendan Beery explains what the Constitution says about High Crimes and Misdemeanors, and why issues surrounding impeachment and removal are for Congress – and not courts – to decide. Professor Beery, a summa cum laude graduate of the law school, teaches Constitutional Law, Criminal Law, and Criminal Procedure at WMU-Cooley Law School, and is a frequent legal expert in the media.

Much media attention is now focused on whether President Donald Trump or any of his associates are guilty of some crime involving obstruction of justice. As to the President himself, that question might be strictly academic; legal memoranda from the Justice Department’s Office of Legal Counsel (one dated 1973 and the other 2000) conclude that a sitting president cannot be indicted for a crime because a criminal indictment would cripple the president’s ability to fulfill his or her duties under Article II of the Constitution.

While associates of the President may be indicted (depending on where the evidence leads, of course), the larger concern for the President himself is whether anything he has done – or an accumulation of everything he has done – implicates the constitutional standard for impeachment and removal from office: “high crimes and misdemeanors.”

Interestingly, these words in the Constitution – “high crimes and misdemeanors” – follow two specific examples of impeachable offenses: treason and bribery (put all together, what the Constitution says is that an officer of the United States may be impeached and removed for committing “Treason, Bribery, or other high Crimes and Misdemeanors”). In the law, when a more general term (high crimes) follows more specific terms (treason and bribery), the general term is to be interpreted as meaning something of the same kind as those items specifically mentioned. For example, suppose that a law bans the use of “any saber, sword, dirk, dagger, knife, blade, or other dangerous instrument.” In analyzing the meaning of “dangerous instrument,” most lawyers and judges would look to the specific items listed before that general term to conclude that “dangerous instrument” must mean some kind of stabbing device.

Applying this principle (for the ambitious reader, it’s called – in Latin – e jusdem generis), it would seem that “high crimes and misdemeanors” means something on par with treason and bribery. That’s why most scholars agree that not just any crime will do; we’re probably talking about the kind of misdeed that represents a serious breach of the public trust. (Recall that the issue in the Bill Clinton impeachment was whether lying under oath about an extra-marital affair constituted such a misdeed.)

But this question (as much as lawyers will be involved in fighting about it) is more a political than a legal one. That’s because the U.S. Supreme Court, in a case called United States v Nixon (not as in Nixon the president, believe it or not) said that issues surrounding impeachment and removal are for Congress – and not courts – to decide. If and when Congress reaches such questions, the issue for members of Congress will be whether the allegations against the President – that he tried to get federal investigators to drop the Russian-collusion investigation and fired the FBI Director with Russia in mind – establish a serious breach of the public trust. It will be up to the House of Representatives to decide whether any constitutional charges (called Articles of Impeachment) should be brought; and if charges are brought, it will be up to the Senate to decide whether to remove the President from office (that would require a 2/3 vote).

Whatever decisions Congress might reach on these questions will not be second-guessed by any court of law. Our system is designed such that the President is answerable to Congress, which in turn is answerable to the people. Constitutionally, then, the fate of the President is in your hands.

LISTEN to Professor Beery on The Tom Sumner Program (at the 20 minute mark) May 23, 2017.