Democratic candidates for president try to appeal to an ideological audience that pays attention to early campaigns, but will that hurt the candidates in the longer term?
One well-publicized case ended this month in a slight win for religious liberty and freedom of speech. The City of Bloomington, Minn., gave up on its case against Ramin Parsa and agreed not to pursue prosecution further—and the resolution offers some lessons for others hit by clampdowns.
The legal battle began on Aug. 25 when Parsa, a pastor from Los Angeles, was strolling The Mall of America, a huge enterprise that bills itself as a tourist destination for 40 million people annually from around the world. Enrique Flores, a Minnesota church elder, and Flores’ 14-year-old son were with him.
Parsa, 33, says two Somali women approached the threesome at 8:30 p.m., struck up a conversation, and asked if Parsa was a Muslim. When he said he used to be but was now a Christian, the women asked him to explain. So Parsa told them how he converted to Christianity in Iran, survived stabbing by a Muslim, escaped to Turkey, and in 2008 gained admission to the United States as a Christian refugee. He is now a U.S. citizen.
Parsa and Flores both say the women were eager to talk, but a third woman overheard the conversation and asked Parsa to shut up. When he said he was just answering questions, the third woman shouted that he was harassing them and left to find a security guard, who arrived and told Parsa he couldn’t solicit at the mall. Parsa said he was merely answering questions during a private conversation.
The guard walked away. Parsa and his friends went to a nearby Starbucks. When they left the coffee shop, three security guards stopped them. According to the police report, mall security asked a family at Starbucks what Parsa had been talking about with them, and the family members said: religion. The guards told Parsa the mall is private property and told him to leave. Parsa said he had a right to be there. The guards said Parsa remarked, “It’s a free country,” and threatened to sue the mall. Two more guards arrived.
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Outside the courtroom for the trial of drug cartel king Joaquín Guzmán, better known as El Chapo, Julio and Carmen Gaytan stood in the security line. The Gaytans flew from California just to see a few days of the trial—to glimpse El Chapo, who was once a billionaire and whose Sinaloa Cartel is responsible for the deaths of thousands.
“We know Chapito,” Carmen Gaytan said of Guzmán's son. “Well, we don’t know him.”
The Gaytans are originally from Culiacán, the Mexican city that is the heart of the Sinaloa Cartel. Mexican reporters covering the trial explained to me that Guzmán is beloved there, as mafia bosses were loved in neighborhoods where they served as protection. The Gaytans described how they always heard about Guzmán, but had never seen him.
“To see him …” Carmen raised her eyebrows. “He’s a legend.”
Journalists covering the trial grumbled about all the tourists like the Gaytans invading the few precious seats in the courtroom, which are all first-come, first-served. Security guards grumbled about a journalist, obviously unfamiliar with court etiquette, setting up a workspace in a judge’s chair in an empty courtroom.
New York City is hosting an extraordinary number of blockbuster federal cases at the moment. The two big federal courts here have ongoing cases concerning Harvey Weinstein; the alleged mail bomber Cesar Sayoc; the alleged terrorist Sayfullo Saipov who drove down a Manhattan bike path killing eight; and the Russian lawyer Natalya Veselnitskaya accused of aiding a cover-up of Russian government corruption (and who met with the Trump campaign at one point).
New York federal prosecutors in the last few months also secured convictions against former Trump attorney Michael Cohen and a top Chinese energy official accused of bribing African officials. They are currently seeking extradition of a top Huawei executive whom Canadians arrested at the request of the United States, which led to a series of escalating diplomatic confrontations between Canada and China—including China’s sentencing of a Canadian to death in seeming retribution.
The most sensational case by far centers on Guzmán, who faces charges that include murder conspiracies and drug trafficking. The heavy security for the trial of the twice-escaped drug lord requires the city to shut down the Brooklyn Bridge once a week for an armored convoy to take Guzmán from his solitary cell in lower Manhattan to the Eastern District of New York court in Brooklyn.
Why Brooklyn? Guzmán faced federal charges in at least seven other U.S. cities, but the Justice Department chose the Eastern District likely because of the Brooklyn prosecutor’s long experience and record of success against cartels and terrorists, and because jails here have experience keeping track of high-value detainees.
Every day of the trial has been filled with tales of stunning U.S. operations to corner Guzmán and extreme corruption that kept him safe for so long—too many stories for even daily newspapers to retell. Consider one day of testimony alone from the young man who was once in line for the Sinaloa throne, Vicente Zambada, who flipped to testify against his godfather Guzmán.
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After Supreme Court Justice Anthony Kennedy read his decision in Obergefell v. Hodges forcing states to recognize same-sex marriage in 2015, the late Justice Antonin Scalia piped in with a dissent calling the court a “threat to American democracy.” Many others agreed and began proposing ways to constrain the court.
Now, with the surprising victory of Donald Trump and the appointment of a new, conservative justice, those proposals are on the back burner. And yet, just as the time to buy stocks is when their price is low, this may be the time—for those who think long-term—to push changes that conservatives could back on principle and liberals, thinking pragmatically, might not oppose so vigorously.
Members of Congress can most readily oppose the court by passing laws in response to court decisions they don’t like—but when the Supremes establish a new constitutional right as in Obergefell, laws aren’t sufficient. Congress also can impeach justices for “high crimes and misdemeanors,” so calls for impeachment of both liberal and conservative judges are common—but Congress has pulled the trigger only once.
A tougher option: Congress can deploy an attack on the scope of the court’s rule called “jurisdiction stripping.” Article III of the Constitution created the judiciary and defined its boundaries. Section 2 of the article reads in part, “The Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.” That “exceptions clause” is what gives Congress some degree of control over the court, where it can pass a statute removing the federal courts’ power to review statutes in the areas Congress specifies.
Back in 1869, the Supreme Court recognized Congress’ jurisdiction-stripping power in the case Ex parte McCardle. Federal officials had arrested Mississippi newspaperman William McCardle over his editorials criticizing Reconstruction. McCardle went before the military courts that ruled the Confederate states at the time, and officials charged him with inciting insurrection. He appealed his case to the Supreme Court, arguing he had federal habeas corpus rights. Before the justices could issue a decision, Congress stripped the court of jurisdiction in the case. Acknowledging Congress’ power to limit its jurisdiction, the court said it could not rule in McCardle’s case.