There are some fundamental requirements in United States jurisprudence. There are some things we just do not do as a matter of fundamental due process. One of those things we do not do is ask minors to make important legal decisions. Yet, that is exactly the slippery slope upon which the Trump administration has embarked. A five year old Honduran who as seeking asylum was separated from her grandmother. She was then asked to sign away her right to a bond hearing. The ABA Bar Journal is relying on a New Yorker magazine article for the story.

Helen arrived in Texas with her grandmother, Noehmi and her teenage uncle, Christian in July. The Trump administration had supposedly ended the practice of separating children from their families weeks before Helen arrived. Yet, Helen was separated from her family.

All immigrants have the right to a hearing to determine whether they are entitled to bond. If the court finds they are likely to appear for their hearing, then the court allows them to post bond and go free until his/her hearing. Little Helen checked the box indicating she wanted a bond hearing. Later, someone handed her a form, with adult language and in English, asking if she wanted to waive her right to a bond hearing. The form was checked that she wished to withdraw her request for a bond hearing. Her signature appeared in typical kindergarten scrawl, just one word, “Helen.” There was no last name.

In Texas, the age at which one may enter into a contract is 18. But, in reality, many businesses require an older age, 21. My son cannot rent a car in his own name until he turns 21. Five years old is definitely below the minimum.

The age of consent affects countless areas of law, everything from marriage, to a driver’s license to voting. It is, or was, a fundamental precept of American law. See the ABA Bar Journal report here.

Later, Noehmi and Christian were re-united. But, at the hearing, the immigration judge and the Department of Homeland Defense lawyer did not appear to realize Helen existed. The lawyer for Noehmi and Christian tracked down Helen and found her. Helen was returned to her family on Sept. 10, 2018. But, now, she is afraid to go to sleep at night for fear her family will leave her in the night.

We often hear about the Magna Carta and how that great document eventually led to our Declaration of Independence. But, what was the Magna Carta all about? In 2015, San Antonio’s own Prof. Vincent R.  Johnson at St. Mary’s Law School wrote a nice piece about the Magna Carta. He explained in his article what was so new and ground-breaking about the “Great Charter.”

One of the problems with the Magna Carta, he explains, is that it is not organized by topics. One must study the whole document to understand it.

One of the first topics Prof. Johnson mentions is due process. The bad King John would frequently take action “by force of arms against recalcitrants as though assured of their guilt, without waiting for legal procedure.” In some cases, noblemen were deprived of their estates not by their peers, but entirely by Crown nominees. So, Clause 39 states: “No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.” Without due process, nothing else matters. No right can be protected without due process. This clause ensured the king could not seize property aided and abetted by his cronies.

Today, we often cite the Magna Carta as the basis for trial by jury. Prof. Johnson explains that some historians disagree. Clause 39 refers to judgment by one’s equal peers. But, one historian says the “judgment” refers to the initial decision regarding how trial would be conducted. The jury of peers would decide whether trial would be by ordeal, by hot iron or by water, compurgation, wager of law, trial by battle, or production of charter. Judgment, according to this view, did not refer to the final decision, but to the method to reach that final decision. The men of the time believed that God would render the final decision after one of these trial methods.

“Compurgation” refers to the medieval practice of of allowing the accused to swear an oath regarding his innocence. The accused would then need an oath from a certain number, often 12, other persons saying they believed the oath of the accused person.

But, added the professor, regarding a dispute between then King John and King Alexander of Scotland, the Magna Carta provided that a dispute over hostages should be resolved by judgment of his equals in “our court.” So, at least when trial by combat or by ordeal was not possible, the signers of the Magna Carta believed that trial by peers was the solution. So, suggests Prof. Johnson, some portions of the Carta did indeed refer to the trial itself, not simply the means by which trial would be conducted.

Clause 39 also presented a new form of evidence. It required that in the future, no official shall place a man on trial upon his own unsupported statement. He must produce credible witnesses to support his own “official” assertion. Officials at the time were generally lords. So, this clause removed from the lords the power to imprison a common man simply on his own, unsupported word.

A well-known provision, Clause 40 provides simply, “To no one will we sell, to no one deny or delay right or justice.” In a time when the Catholic Church would routinely “sell” dispensations, many judges were bribed to rule one way or the other. This provision set a new standard, by which justice was (mostly) not for sale. We take judicial independence for granted today, but once, that was not so.

Clause 36: “In [the] future nothing shall be paid or accepted for the issue of a writ of inquisition of life or limbs.” The writ of inquisition allowed a criminal defendant to avoid or delay trial – which was often trial by combat. Some call trial by combat “legalized private revenge,” because the accuser could exact the combat. The writ of inquisition involved a procedure in which one’s neighbors could could exonerate a defendant. The writ, however, was used as a revenue device by King John and was sold only to those with deep pockets. Making this writ freely available decreased the numbers of trials by combat.

The Magna Carta addressed proportionality in sentencing. Clause 20  provided. “For a trivial offense, a free man shall be fined only in proportion to the degree of his offense, and for a serious offense correspondingly, but not so heavily as to deprive him of his livelihood. In the same way, a merchant shall be spared his merchandise, and a villein (a feudal tenant) the implements of his husbandry, if they fall upon the mercy  of a royal court . . . ” The goal was to not reduce a criminal to beggary. There were similar provisions for earls, barons and clergy. The concept, which was new at the time, was to make punishment “fit the crime.” We see this concern still resonating on our modern time when some seek reforms regarding bail. Bail for misdemeanors often result sin persons staying in jail for months before they see a trial.

Widows could be married to any man willing to pay the going rate. The payment would be made to the widow’s feudal overlord. But, some widows were wealthy enough to outbid suitors and buy a charter guaranteeing she would not have to remarry. King John did a fruitful business in selling these charters to women who wished to marry their own choice, or not remarry at all. Clause 8 provides, “No widow shall be compelled to marry, so long as she wishes to remain without a husband. But she must give security that she will not marry without royal consent, if she holds her lands of the Crown, or without consent of whatever the lord she may hold them of.” This provision created new legal rights for women. This was not true freedom, but it was a step.

Clause 1 was addressed “TO ALL FREE MEN OF OUR KINGDOM.” Clearly, the rights in the Magna Carta were guaranteed to all free men, meaning not to vassals and the like. Clause 40, which guaranteed access to justice, was not limited to free men. It simply said “to no one will we sell, to no one deny or delay right or justice.” So, Clause 40 was much broader in scope than just the free men. And, Clause 60 asked that regarding all these rights, “let men of our kingdom . . . observe them similarly in their relations with their own men.” Clause 60 then expressed the hope that these rights would be extended by the free men to to those not free.

The treatment of debtors was addressed. Clause 9 provided that the King would not seize any land or or rent in payment of a debt, so long as the debtor had movable goods with which to pay the debt. That means the creditor could not seize land when smaller goods would suffice to pay the debt. That provision provided some protection in an agrarian society, so the debtor could still earn a living.

The Magna Carta was not a perfect document. But, it was ahead of its time. The protections afforded the common free man far surpassed that found in other countries of the time. It was to these protections that the Founding Fathers looked in 1776.

As I have mentioned here before, I served 12 months in Iraq during the Iraq war. It was one of the most wonderful experience of my life – except when it was not! ….   Seriously, it was a searing and very positive sort of experience, overall. The big fear in the war was the IED’s, also known as roadside bombs. A large IED, and by the time I was there in 2005-2006, most IED’s were large – a large IED would obliterate a HMMWV. One sailor, a Navy SEAL, Dan Crenshaw, lost an eye to an IED. He probably lost more than that, but not that he can discuss.

I knew a few soldiers who drove through IED’s and lived to tell the tale. Even when you live, the IED does things to your brain. There is something about the concussion effect on the brain in a close confined space, lined with armor, that harms your brain. Doubtless, Dan Crenshaw suffers other, unseen effects. Mr. Crenshaw is running for Congress as a Republican in Texas.

So, when Pete Davidson makes a joke about his eye patch and comments, “I’m sorry, I know he lost his eye in war or whatever…..  whatever,” I do not get the joke. In fact, I find his comment pretty offensive. See CBS news report. I like SNL fine. But, jokes about losing body parts to an IED just are not funny to me.

I knew a soldier, a National Guardsman who went outside the wire often. It was his job to leave the relatively safe confines of the FOB several times a week. He drove through a couple of IED’s. He said the ringing in hs ears would last for days afterward. He wrote the name of all the soldiers his unit lost on his helmet. He wanted to remember them.

Pete Davidson lost his father in the 9/11 attack. He should understand “sacrifice,” we would think. Losing a dad who was a fire fighter is similar to sacrificing in a war zone.

A female comrade was a truck driver in Baghdad. They were told the terrorists were using kids to stop convoys. “Do not stop to help kids!” she was told. If she stops, the entire convoy has to stop. When you stop, you get attacked. She did not stop for kids. Years later, she was still dealing with deep PTSD because she might have run over a child.

A young soldier was in a Reserve unit. He thought he got out of the Reserves. He should have been, but was not processed out. About a year after he thought he was out of his Reserve unit, he received a phone call, “Chin, get over here in 30 minutes, or you will be court-martialed!” Chin did get there in 30 minutes, barefoot and without a shirt. Chin served his 12 months in Iraq and never complained.

Another major went home on his six month break. He found his wife was dating someone. That someone was reading bedtime stories to his children. That major came back after his break and did his second six months, knowing he would need a divorce lawyer when he got back home. Yet, that same major had to make major decisions, like who leads the convoy when his unit has to travel 2-3 hours in pitch black darkness with no headlights, or who mans the turret gun in his vehicle when the main guy is hurt. He has to focus, or people get hurt. There is no time for self-pity.

I am sure Pete Davidson faced some huge emotional issues in losing his father. You have to respect his experience. But, that does not give him space to minimize the service and sacrifice of others. None of these war experiences deserve a “whatever.” Neither does a sailor who lost his eye.

In civil lawsuits, we do these things known as “depositions.” We depose a witness with no judge present. The depositions usually occur in lawyer’s offices, but they can take place anywhere. The two warring sides meet up and the only brake on poor behavior are social norms. In a deposition in Las Vegas, a lawyer was deposing the person who had accused him of defamation. The lawyer, James Pengilly, was sued for defamation. Mr. Pengilly represented himself in the lawsuit. He was deposing the person who had filed the lawsuit. He used various vulgar terms, interrupted the witness and his attorney, made inappropriate statements and was generally aggressive.

Then, apparently not liking an answer by the witness, he move this hand near a pistol he wore on his belt and asked the witness if he was “ready for it.” The witness left the room. When he returned, Mr. Pengilly displayed his weapon to the witness and the opposing attorney. The two were frightened by this odd conduct and called the police.

The Nevada Supreme Court has suspended Mr. Pengilly. It said there was serious risk of harm to all who were present. Interviewed by the local newspaper, Mr. Pengilly said he always carried a weapon, because his father had worked at a law firm in San Fransisco where a gunman killed eight people. He has the pistol with him everyday, he explained. “I always carry a gun because I’m attorney and people don’t like me.” See ABA Bar Journal news report. I suppose they don’t…….

College football players are the very definition of the “Big Man on Campus.” But, some football coaches do not want their players thinking they are so big. At Texas Christian University, a football player wanted to cut in line at the on-campus Chick-Fil-A, saying he was a football player. The student tweeted about it. Tasla said she and Lexee did not care and did not let him cut in line. “do we LOOOOK like we care???” she said. Tasla tweeted about it on a TCU twitter feed. Head Coach Gary Patterson saw the tweet and responded, “I agree! Who was it?” See  Ft. Worth Star Telegram report here.

Coach Patterson is known for being strict and for preferring his players conducting themselves accordingly. My guess is some player is running wide sprints after practice today. Probably a freshman player……..

One huge problem with Pres. Trump is his apparent inability to tell the truth. Bob Woodward’s book recounts the story that to prepare the President to be interviewed by Robert Mueller, his attorney staged a mock interview. John Dowd wanted to prepare his client, so he put together a mock interview. The President could not get through without telling some obvious lies, according to the book. Mr. Dowd was quite frustrated. Not the least because as a lawyer, his license is at risk if he allows a client to testify about lies. It violates ethical rules in every state for a lawyer to knowingly allow a client to tell a falsehood.

Andrew Hall discusses this dilemma regarding Mr. Dowd. Andrew Hall once represented John Erlichman, the former Watergate defendant. As Hall points out, any attorney who represents the President knowing he will lie or might lie puts his license at risk. See The Hill report here. That risk may explain why John Dowd resigned form the President’s defense last March. What many of us have forgotten is that after Watergate, many lawyers lost their licenses to practice law.

Within just a few days, Admiral William McRaven accused Pres. Trump of engaging in Joe McCarthy tactics and the President accused the Mueller investigation of engaging in Joe McCarthy tactics. They are referring to former Sen. Joe McCarthy who conducted anti-Communist hearings in the Senate. Let us look back for a moment at that disgraceful episode in U.S. history

Senator McCarthy was a bully. In his zeal to uproot all vestiges of Communism or Communist sympathizers, he bullied, scared and threatened his way across Washington, D.C. Everyone was afraid of Joe McCarthy, because they feared being branded as “soft” on Communism. Like Donald Trump, Joe McCarthy shot from the hip. For example, he stated flatly, like he knew and only he knew, that there were dozens of Communists in the federal government. He claimed in one speech to have a list in his hands of 205 known Communists in the State Department. Later, in the Senate, he said the number was actually 57. Still later, he claimed it was 81. That alleged list led to Senate hearings looking for Commies anywhere in the federal government. Overnight, Joe McCarthy became a household name. He became an albatross for the Republicans. Gen. Eisenhower, while campaigning, said he supported Mr. McCarthy’s goals, but not his methods. According to some accounts, in actuality, the President had planned a sharper attack on Sen. McCarthy, but backed down at the last minute.

When the Senator ran his own committee, he destroyed people, based on little more than suspicion. His browbeating tactics in Senate hearings offended his colleagues. But, afraid of what he would do or say, the other Senators said nothing.

In looking into the U.S. Army, he could find no evidence of subversion after weeks of investigation. But, he was convinced the Army had been “soft” on Communists. Frustrated, he started focusing on the case of Irving Peress, a New York dentist. Mr. Peress had been drafted in 1952. In his papers, he had disclosed a former membership in the American Labor Party, a leftist organization. When asked about his political affiliations, he had left that portion blank.

Capt. Peress was promoted to Major in 1953. Sen. McCarthy started a campaign  to find out who had promoted Maj. Peress. The question, “Who promoted Peress?” became a conservative rallying cry. All this time, Sen. McCarthy knew that the major had been promoted automatically by the provisions of the Draft Doctor’s Act, a recently passed law which Sen. McCarthy had supported.

When called before the committee, Capt. Peress invoked the 5th Amendment numerous times. He insisted that citing the 5th Amendment did not amount to guilt. Later, Sen. McCarthy demanded that the Army court-martial Capt. Peress. The pressure eventually forced Capt. Peress to request a discharge. He was discharged honorably with a promotion to major.

The committee then called on his commander, Brigadier-General Wicker to explain how he was promoted and discharged without a court-martial. BG Wicker, a West Point graduate, had been at Normandy. He had led an Infantry battalion at the key Battle of Brest. He was a hero. He was asked about his approval of the discharge orders for Maj. Peress. Based on advice from the Army counsel, he refused to answer certain questions. The Senator badgered him, and accused him of perjury. He said the general was not fit to wear the uniform.

“Tail-Gunner” Joe had been an enlisted man in the Army during WW II. His abuse of BG Wicker caused many people to turn against Sen. McCarthy. All the general did was approve discharge for an officer who had committed no transgression while in service. As BG Wicker said many years later, he was initially not unsympathetic to Sen. McCarthy. But, as soon as the hearing began, he quickly became disillusioned. Sen. McCarthy, said the general, was an opportunist. The Senator’s abuse postponed Zwicker’s promotion to Major General.

The debacle with BG Wicker lead to the Army hearings. Sen. McCarthy would hold hearings on live television, the new medium, digging deeper into so-called Army tolerance of Communism. Millions watched as he browbeat and interrogated various Army officials. In one such hearing, the chief legal representative for the Army, Joseph N. Welch pressed the committee about some supposed 130 persons who worked in defense plants and supported the Communist party. Sen. McCarthy jumped into the conversation. He insisted Mr. Welch explain the case of Fred Fisher, a young lawyer who worked in Mr. Welch’s law firm. Mr. Fisher, insisted the Senator, had once belonged to the National Lawyer’s Guild, the “mouthpiece” of the Communist party.

The National lawyers Guild is still around. It is indeed liberal leaning, but it is also independent of any political affiliation. Sen. McCarthy had to know this.

Joseph Welch accused the senator of cruelty. The Senator persisted, demanding to know about Mr. Fisher’s former membership. Mr. Welch famously replied, “Senator, may we not drop this? We know he belonged to the National Lawyer’s Guild. Let us not assassinate this lad further, Senator. You’ve done enough. Have you no sense of decency, sir, at long last? Have you no sense of decency??” When Sen. McCarthy persisted, Mr. Welch cut him off. He reminded him that he could have asked about Fred Fisher any time that day. He sat within six feet of Mr. Welch. He told the chairman of the committee to call the next witness. The gallery then erupted in applause and a recess was called. Sen. McCarthy’s decline began soon after.

Fred Fisher did indeed once belong to the NLG during law school. But, as Mr. Welch pointed out, this was needless trashing of a man at a time when membership in liberal organizations could ruin a man’s career. This line of inquiry served no purpose, other than advancing Sen. McCarthy’s political goals. It was cold-blooded political opportunism and Mr. Welch called it.

So, when persons accuse another of McCarthyism, that is indeed a deep insult. Sixty years ago, the end for “Tail-Gunner” Joe started with one decent man, representing the U.S. Army.

When I was a young lawyer, I did child abuse cases. I represented children who had been abused or neglected. In one of those cases, I represented two children. The mostly absent father came to my office and made threats to almost everyone he encountered there. I was gone, so I missed the drama. One of the lawyers present practiced family law. He confronted the father and told him he needed to leave. That same lawyer was involved in many difficult divorces. He shared with me several stories of spouses following him or thereatening him. He said he once pulled up to a traffic light in his car. He glanced to his right to see a husband in a car pulled up next to him pointing a pistol at him.

In Georgia, a husband apparently objected to how the lawyer representing his wife conducted himself. Within hours of the divorce becoming final, the man went to the lawyer’s office, shot him and then shot himself. See CBS news report.

The lawyer, Antonio Benjamin Mari, was said to have told colleagues he thought the ex-husband might try to harm him. The lawyer business can be very dangerous.

Recently, it emerged that Pres. Trump’s lawyers have advanced the theory that as the nation’s chief executive officer, the President cannot obstruct justice. The theory is the President has complete authority to start or stop investigations. Rudy Giuliani said the only remedy if the president committed a murder was impeachment. Mr. Giuliani also said the President has the power to pardon himself.

Legal scholars mostly disagree. The bedrock of the U.S. Constitution is that no person is above the law, they point out. Former acting Solicitor General Neal Katyal flatly said the idea that someone could be immune from obstruction of justice died with George III, with a brief attempt at revival by former Pres. Nixon. The opinion of any former Solicitor General, acting or not, carries a lot of weight. Solicitors General represent the U.S. government before the U.S. Supreme Court. Any Solicitor General is considered to be a top flight lawyer. They are the lawyer’s lawyer. Mr. Katyal derided Mr. Giulinai’s suggestion as a “ludicrous legal theory.” If a careful lawyer pokes fun at Mr. Giuliani’s argument, then we can conclude the argument is weak.

The decision in the Paula Jones lawsuit against then Pres. Clinton is instructive. The courts universally found that a sitting President was still subject to the normal civil legal process. Former Pres. Clinton tried to argue that as President, a civil lawsuit should be postponed until his term has ended. He lost at every level of appeal. If civil cases still apply to sitting presidents, it is very likely that criminal legal process will also still apply. The ABA Legal Fact Check noted that in ruling on a subpoena issued to then Pres. Nixon, Chief Justice Warren Burger wrote that yes, a President does enjoy special consideration. But, that special consideration does not include an “unqualified presidential privilege of immunity from all judicial process under all circumstances.” See ABA Bar Journal report.

But, for a president who famously provides his own legal counsel, these legal opinions may not matter.

Pres. Trump has dis-invited the Philadelphia Eagles to the White House. The reigning Super Bowl champs are typically invited to the White House. The President indicated it was because of a disagreement over whether to stand for the national anthem at football games. See CBS news report. The President issued a statement that said:

“They disagree with their president because he insists that they proudly stand for the National Anthem, hand on heart, in honor of the great men and women of our military and the people of our country,”

As a retired member of that great military, all I can say is that is what I believed when I was in first grade, too. In fact, I attended a military school in first grade and absolutely believed that standing straight and tall during the national anthem meant I was a good patriot. Now, I know better. I grew up during the 60’s and 70’s. I was perfectly okay with protests for the right reason. Now, a lifelong student of history, I can point to dozens of examples of great patriots who protested in favor of sincere beliefs. Many of those protests would later go on to be vindicated. But, I guess it is better politics to think like a first grader……

P.S. You have not lived until you have sung the national anthem in a war zone. It was a surreal experience. Singing it at football games now almost seems to trivialize the song.