On June 18, 2020, U.S. President Donald Trump, in response to two major legal setbacks before the Supreme Court, promised to release an updated slate of conservative candidates to serve as Justices should a vacancy arrive during the remainder of his current term or, a second term, if he is reelected in November 2020. Conservative commentators have been especially critical of Chief Justice John Robert’s role in the recent decisions—specifically, the Roberts-authored 5-4 opinion in the case involving the Trump Administration’s effort to end the Obama-era Deferred Action for Childhood Arrivals (DACA) program. The President’s rallying call to the Republican base concerning Supreme Court justice nominations generated a question that host and lawyer Michael Buckner attempts to answer during the episode: Does Trump, or any U.S. President, possess the legal right to demote an incumbent Chief Justice to Associate Justice, and to appoint a new Chief Justice?

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Citations:

Eric Bradner, “In repeat of 2016 strategy, Trump pledges new list of justices after two stinging Supreme Court losses,” CNN (June 18, 2020), available at: https://www.cnn.com/2020/06/18/politics/2020-election-trump-list-supreme-court/index.html.

"FAQs - General Information," U.S. Supreme Court website, https://www.supremecourt.gov/about/faq_general.aspx.

Judiciary Act of 1789.

Judiciary Act of 1869.

Pettys, Todd E., Choosing a Chief Justice: Presidential Prerogative Or a Job for the Court? Journal of Law & Politics, Vol. 22, p. 231, 2006; University of Iowa Legal Studies Research Paper No. 07-03, available at SSRN: https://ssrn.com/abstract=958829.

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Host and attorney Michael Buckner reviews the First Amendment to the U.S. Constitution in light of the protests, demonstrations and riots stemming from the May 25, 2020, death of George Floyd, an unarmed black man who was held down at the neck by a police officer for more than eight minutes. The right to peaceful assembly is protected by the First Amendment. In the episode, Michael summarizes when the First Amendment’s protections for a citizen’s right to an assembly end when it crosses the threshold from peaceful demonstration to violence.

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Comments, Questions & Feedback: 

Email: [email protected] 

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Citations:

"Assembly and Association," Bill of Rights Institute (n.d.), available at: https://billofrightsinstitute.org/educate/educator-resources/landmark-cases/assembly-and-association.

Ashutosh Bhagwat, “Liberty’s Refuge, or the Refuge of Scoundrels?: The Limits of the Right of Assembly,” 89 Wash. U. L. Rev. 1381 (2012).

David L. Hudson Jr., “Freedom of Assembly Overview” (Oct. 29, 2002), https://www.freedomforuminstitute.org/first-amendment-center/topics/freedom-of-assembly/freedom-of-assembly-overview.

John D. Inazu, Factions for the Rest of Us, 89 WASH. U. L. REV. 1435, 1438–40 (2012) (responding to concerns about the line between peaceable and violent assembly). 

"Learning to Give," Right to Assemble (n.d.), available at: https://www.learningtogive.org/resources/right-assemble.

James L. Walker, "Brandenburg v. Ohio (1969)," The First Amendment Encyclopedia (n.d.), available at: https://www.mtsu.edu/first-amendment/article/189/brandenburg-v-ohio

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On May 21, 2020, the U.S. Court of Appeals for the District of Columbia Circuit directed U.S. District Judge Emmet G. Sullivan, who is presiding over the criminal case against former national security adviser Michael T. Flynn, to respond by June 1, 2020, to Flynn’s May 19, 2020, petition for writ of mandamus. The writ, if issued, would compel Judge Sullivan to grant the U.S. Department of Justice's May 7, 2020, motion to dismiss the criminal charges against Flynn.

In today’s episode, host Michael Buckner investigates the origin and purpose of the writ of mandamus. 

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Citations: 

Marbury v. Madison, 5 U.S. 137 (1803).

Kerr v. U.S. Dist. Court, 426 U.S. 394 (1976).

Cheney v. U.S. Dist. Court, 542 U.S. 367 (2004).

United States v. Fokker Servs., B.V., 818 F. 3d 733 (D.C. Cir. 2016).

Howard Brill, "Citizens' Relief Against . Inactive Federal Officials: Case Studies in Mandamus, Actions "In the Nature of Mandamus," And Mandatory Injunctions," 16 Akron Law Rev. 339 (July 2015).

Encyclopædia Britannica.

Edward Jenks, "The Preogative Writs in English Law," 32 Yale L.J. 6 (Apr. 1923).

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The May 14, 2020, decision of the full U.S. Court of Appeals for the Fourth Circuit allowed a lawsuit to continue that alleges U.S. President Donald Trump is violating the Constitution’s Emoluments Clauses. The case, which is called Citizens for Responsibility and Ethics in Washington v. Trump, will return to the United States District Court for the Southern District of New York for further proceedings. The case centers on how to define the scope of the Foreign and Domestic Emoluments Clauses. In the episode, host and attorney Michael Buckner explores the constitutional provisions relating to emoluments and how that term was interpreted as applied to federal elected officials, incluing the President, in the early history of the United States.

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Comments, Questions & Feedback: 

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Citations:

American State Papers, 7th 28 Cong., 1st Sess., Misc. 307–08 (1802).

A Digest of the International Law of the United States 757 (Francis Wharton ed., 1886).

Debates in the Federal Convention.

Defendant's Memorandum of Law in Support of Defendant's Motion to Dismiss, CREW v. Trump, Case 1:17-cv-00458-RA (S.D.N.Y. June 9, 2017).

Douglas Southall Freeman, George Washington: A Biography 160 (1954).

The Federalist No. 73, at 494 (Jacob E. Cooke ed., 1961).

Hoyt v. United States, 51 U.S. 109 (1850).

Journals of the Continental Congress, 1774–1789, at 670 (Gaillard Hunt ed., 1914).

United States v. Hartwell, 73 U.S. 385 (1867).

Leonard D. White, The Federalists: A Study in Administrative History 298 (1st ed. 1948).

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Media reports concerning the United States Department of Justice’s filing of a May 7, 2020, motion to dismiss the criminal case against former National Security Advisor Michael Flynn sparked host and attorney Michael Buckner’s curiosity as to which government agency was in charge of criminal investigations for the Justice Department prior to the 1908 creation of the Federal Bureau of Investigation or FBI. In the episode, Michael explores how the Justice Department investigated allegations of criminal wrongdoing in the 19th Century and early 1900s.

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Citations:

Evan Andrews, "10 Things You May Not Know About the Pinkertons," History.com (Aug. 22, 2018), available at: https://www.history.com/news/10-things-you-may-not-know-about-the-pinkertons.

Michael Birzer and Cliff Roberson eds. Introduction to Criminal Investigation (Routledge; September 26, 2011).

John F. Fox, Jr. “The Birth of the Federal Bureau of Investigation,” FBI (July 2003), available at: https://www.fbi.gov/history/history-publications-reports/the-birth-of-the-federal-bureau-of-investigation.

Oliver Tatom, "Francis J. Heney (1859-1937)," The Oregon Encyclopedia (March 17, 2018), available at: https://oregonencyclopedia.org/articles/heney_francis_j_1859_1937_/#.XrVwQkRKjIU.

“A Brief History: The Nation Calls, 1908-1923,” FBI (n.d.), , available at: https://www.fbi.gov/history/brief-history.

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In this episode, host and attorney Michael Buckner tackles this hypothetical: If Democratic presumptive nominee Joe Biden selects former U.S. Presidents Barack Obama or Bill Clinton as his Vice-Presidential running mate or President Donald Trump replaces Vice-President Mike Pence with former President George W. Bush, and since Presidents Clinton, Bush and Obama were elected to the Office of the President twice, could any of the gentlemen constitutionally be part of a national ticket and, if elected, become sworn in as Vice-President of the United States?

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The "Hollywood Takes on History" episodes take a look at movies, as well as television and streaming service series, that either feature historical figures or focus on real-life events. During each episode, we highlight what the production got right historically and identify the areas of history in which the movie or show failed to meet a baseline of accuracy. In this episode, host Michael Buckner reviews the American-produced television series Spartacus, which was broadcast on the Starz cable channel from January 22, 2010, to April 12, 2013. The series featured Andy Whitfield and, due to Andy’s post-Season One battle with, and later death from, cancer, Liam McIntyre, as Spartacus; Manu Bennett played Crixus; Lucy Lawless as Lucretia; and a cast of excellent actors.

The show took place during the late Roman Republic and focused on Spartacus, who was born in Thrace, which was a region in Southeast Europe now forming parts of Bulgaria, Greece and Turkey. Spartacus was a former member of the Roman Army auxiliary. The auxiliary soldiers were persons recruited from non-Roman tribes. The auxiliaries assisted the Roman legionary troops in campaigns and battles. Spartacus’ auxiliary experience enabled him to become familiar with Roman military strategy and tactics, which more than likely aided him in the future slave revolt.

Later, after becoming a gladiator, Spartacus started a slave uprising in Capua, Italy that lasted from 73 to 71 BC throughout the Italian peninsula. This slave revolt is also called the Gladiator War; the War of Spartacus; and the Third Sir-vil War since Rome experienced two prior major slave conflicts.

The first season of the show was titled “Spartacus: Blood and Sand.” Due to Whitfield’s cancer diagnosis, Starz elected to produce a prequel mini-series entitled “Spartacus: Gods of the Arena.” After Whitfield died on September 11, 2011, Starz tapped McIntyre to assume the role of Spartacus in the next two full seasons titled “Spartacus: Vengeance” and “Spartacus: War of the Damned.”

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The United States of America is not the first nation to engage in an endless debate regarding the regulation of weapons. What makes the American experience unique is the Second Amendment to the Constitution. Since its ratification in December 1791, Americans have pondered the meaning and scope of the Second Amendment. During this episode, host and attorney Michael Buckner reviews the laws and edicts of ancient Rome that regulated the weapons available at that time—swords, daggers, clubs and other weapons. Michael uses this examination of the Roman experience to enable persons involved in the current American gun-control debate to evaluate the topic through a different perspective.

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COMMENTS: [email protected]

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CITATIONS: Aaron L. Beek, “The Pirate Connection: Roman Politics, Servile Wars, and the East,” TAPA, Volume 146, Number 1, Spring 2016; Sarah Bond, "Even The Ancient Romans Had Fierce Debates Over Banning Assault Weapons," Forbes (June 16, 2016); T. Corey Brennan, The Praetorship in the Roman Republic: Volume 2: 122 to 49 B (Oxford University Press, 2000); Chad Brooks, “The Second Amendment & the Right to Bear Arms,” LiveScience (June 28, 2017); Jakub Jasiński, "Ancient Romans and right to own weapon," Imperium Romanum (n.d.); David B. Kopel, et al., “The Human Right of Self-Defense,” 22 BYU J. Pub. L. 43 (2007); Will Tysse, “The Roman Legal Treatment of Self Defense and the Private Possession of Weapons in the Codex Justinianus,” 16 J. Firearms & Pub. Pol'y 163 (2004); "Weapons Laws in Ancient Rome," Selling the Second Amendment (Oct. 31, 2013).

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Host Michael Buckner relies on his legal background to provide a brief analysis concerning the duty the law imposes on sports leagues, restaurants, hotels, grocery stores, cruise-ship companies and other service providers to eliminate the foreseeable risks to customers and employees during a disease outbreak, epidemic or pandemic.

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CITATIONS: Amanda Bronstad, “Can Coronavirus Victims Sue for Injuries?,” Lawyer.com (March 4, 2020); Jim Butler, “Hospitality Lawyers: Swine Flu’s legal implications,” Global Hospitality Group (Apr. 28, 2009); “Hepatitis and Illness Outbreaks at Restaurants: Who Is Liable?,” Perenich, Caulfield, Avril & Noyes website (Nov. 9, 2018; Joel Jacobsen, “Law requires elimination of foreseeable risks to clients,” Albuquerque Journal (March 23, 2020); Thomas Steinbrenner, “Your Restaurant Business Could Be Liable if Workers Bring Coronavirus to the Table,” Modern Restaurant Management (Feb. 25, 2020).

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Host and attorney Michael Buckner, using the global impact of the COVID-19 pandemic as a backdrop, investigates the public health roles of the federal, state and local governments in the first epidemic in the nation’s history: the 1793 yellow fever outbreak that affected the then-capital and largest city, Philadelphia, Pennsylvania.

Citations: Simon Finger, Yellow Fever, Encyclopedia of Greater Philadelphia; Sandy Hingston, 11 Things You Might Not Know About Philly’s 1793 Yellow Fever Epidemic; Matthew Carey, A short account of the malignant fever; William Duffy, From Humors to Medical Science; John Harvey Powell, Bring Out Your Dead: The Great Plague of Yellow Fever in Philadelphia in 1793; Minutes of the Proceedings of the Committee to Attend to and Alleviate the Sufferings of the Afflicted with the Malignant Fever, 1794; Benjamin Rush, An Account of the Bilious remitting Yellow Fever as it appeared in Philadelphia, in the year 1793.

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