Reasoning Backwards To Divine Strategy

The caption reads: “CHOBANI, LLC, a Delaware limited liability company, Plaintiff, vs. ALEXANDER (“ALEX”) E. JONES; INFOWARS, LLC, a Texas limited liability company; FREE SPEECH SYSTEMS, LLC, a Texas limited liability company, Defendants.” The court is an Idaho civil trial court, not the U.S. District Court. The district appears to be the one in which the plaintiff is located. The causes of action are for defamation, defamation per se, and violation of the Idaho Consumer Protection Act. The prayer for relief demands monetary damages “in excess of $10,000.”

It’s pretty clear to me that the plaintiff has gone to some pains to avoid triggering Federal jurisdiction. The question to you all is, “why?”

The answer may be something that attorneys on the ground in Idaho would know better than those of us outside the area possibly could, some peculiarity of what kind of judge or jury one would be likely to draw in state court versus federal court.

Consequently, it’s a damn good bet that the defendants will make whatever claim to Federal jurisdiction they can and remove the matter to District Court.  “Diversity” comes immediately to mind; but that must be why the plaintiff “only” demanded a minimum recovery of $10,000 rather than the $75,000 that serves as the jurisdictional threshold for diversity jurisdiction.

So, for all of you wannabe judges and Civ Pro nerds out there, would you grant the remand motion? (I’m thinking that I would; on the face of the pleadings, the plaintiff has left open the possibility of recovering less than $75,000.) Alternatively, would you grant the motion for a change of venue to a court in Travis County, Texas?

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NPR: Senate Confirms Gorsuch To Supreme Court

Judge Neil Gorsuch was confirmed Friday as the 113th justice to serve on the nation’s highest court. In a largely party-line vote, Gorsuch received the support of 54 senators.

His path to confirmation was relatively short by modern standards — just 65 days. But it was accomplished with a historic vote Thursday to end the U.S. Senate’s filibuster rule for Supreme Court nominees.

Gorsuch takes the place of the late Justice Antonin Scalia, a conservative icon who died unexpectedly more than a year ago.

The new justice is also a conservative who adheres to many of the same positions that Scalia did. Indeed, some believe that Gorsuch will be more conservative.

From: NPR — Senate Confirms Gorsuch To Supreme Court, by Nina Totenberg.

I Can’t Believe It’s A Class Action Lawsuit!

For those unfamiliar with the acronym, SIHTAF stands for “S[omething] I‘ll Have To Apologize For.”

Jan Polanik lives near Worchester, Massachusetts and like a prodigious percentage of his fellow New Englanders, he sometimes gets breakfast at Dunkin’ Donuts. Jan, he gets the bagel. Hey, he likes bagels! You got a problem with that?

So instead of cream cheese, Jan asked for his bagel to be toasted with butter. (I like them that way sometimes too. You got a problem with that?) But what he got was a bagel, toasted, with margarine. So of course he sued on behalf of all people who “ordered a baked product, such as a bagel, with butter, but instead received margarine or butter substitute between June 24, 2012, and June 24, 2016.”

Polanik’s attorney, Thomas Shapiro, said of the complaint:

Candidly, it seems like a really minor thing, and we thought twice or three times about whether to bring a lawsuit or not. … A lot of people prefer butter. … The main point of the lawsuit is to stop the practice of representing one thing and selling a different thing. It’s a minor thing, but at the same time, if somebody goes in and makes a point to order butter for the bagel . . . they don’t want margarine or some other kind of chemical substitute.

Why did the store give margarine rather than butter? I presume it’s a food safety and delivery-of-product issue: to put the spread on the bagel quickly, it has to be kept at room temperature, and butter has to be kept refrigerated lest it spoil and become a risk of bacterial infestation. Margarine, you can keep at room temperature for much longer before the germs start to build their civilization in it.

So this is news because it’s been recently announced that the defendants, three Dunkin’ Donuts franchisees that own about 20 restaurants in the area, have settled. The terms of the settlement will have to be approved by the court because it is a class action suit but that filing hasn’t been made yet. The lawyer for the majority of the franchisees, Michael Marino, has so far declined to state the terms of the settlement, indicating only “The litigant is satisfied with the operational changes made in those stores.”

I’m reminded of the classic law school limerick:

There once was a lawyer named Rex,
Whose “thing” was too small to have sex.
Charged with indecent exposure,
He made this disclosure:
De minimis non curat lex.”

You got a problem with that?

Granting Immunity From Prosecution

Former National Security Advisor Michael Flynn has requested immunity from prosecution in exchange for testimony before Congress concerning various claims of the Trump Administration’s purported ties to Russian business and governmental interests. General Flynn himself seems among the worst of the offenders. ((Well, “offenders” would be the right word only if there is any fire beneath the smoke awaft, but let’s let that bit of semantic go for the time being, bearing in mind that there are rumors and informal accusations, and a pending investigation only, not even so much as a prosecution yet much less a conviction. Flynn and others potentially involved enjoy the presumption of legal innocence until proven guilty.)) And there is an ongoing investigation about collusion between the President, his people, and the Russian government which includes both the election and the incumbent Presidential Administration.

Unsurprisingly, General Flynn’s request for immunity from prosecution based on theoretical Congressional testimony was rejected as a preliminary matter. But he has also made that request to the Department of Justice, and it’s likely that when matters reach a point of subpoenaing Flynn to testify before Congress, Congress will have to revisit this issue. The odds of a grant ever being made aren’t all that good for Flynn, but the legal reasons why the odds aren’t good are pretty significant. Here, then, are the criteria for immunity from prosecution.

Generally, immunity is governed by 18 USC § 6002:

Whenever a witness refuses, on the basis of his privilege against self-incrimination, to testify or provide other information in a proceeding before or ancillary to—(1) a court or grand jury of the United States, (2) an agency of the United States, or (3) either House of Congress, a joint committee of the two Houses, or a committee or a subcommittee of either House, and the person presiding over the proceeding communicates to the witness an order issued under this title, the witness may not refuse to comply with the order on the basis of his privilege against self-incrimination; but no testimony or other information compelled under the order (or any information directly or indirectly derived from such testimony or other information) may be used against the witness in any criminal case, except a prosecution for perjury, giving a false statement, or otherwise failing to comply with the order.

So the first thing that has to happen is the witness must invoke a Fifth Amendment right against self-incrimination, and then, the judge or chair of the Congressional committee may issue an order granting immunity.

Also, note that immunity never covers perjury.

In the case of testimony to Congress, the chair of the committee does not have unilateral discretion to grant the immunity anyway. 18 USC § 6005 provides:

(b) Before issuing an order under subsection (a) of this section, a United States district court shall find that—
(1) in the case of a proceeding before or ancillary to either House of Congress, the request for such an order has been approved by an affirmative vote of a majority of the Members present of that House;
(2) in the case of a proceeding before or ancillary to a committee or a subcommittee of either House of Congress or a joint committee of both Houses, the request for such an order has been approved by an affirmative vote of two-thirds of the members of the full committee; and
(3) ten days or more prior to the day on which the request for such an order was made, the Attorney General was served with notice of an intention to request the order.

Translated: first the Congressional committee that would take the testimony has to give the Attorney General notice of an intent to hold a vote on immunity ten days before the vote takes place; then the committee must approve the grant of immunity by two-thirds majority, and then the House, or Senate, must approve the grant of immunity by majority. And then all of this needs to be confirmed in a court order upon a motion made by the Department of Justice.

Which leads us to section 9-23.000 of the United States Attorney’s Manual, the document setting forth operating policies for all Federal Prosecutors. As a practical matter, with respect to General Flynn, the matter would be referred to the Deputy Assistant Attorney General for review and approval or denial. Requests for immunity are, by policy, viewed skeptically:

9-23.212 – Decision to Request Immunity—Conviction Prior to Compulsion
It is preferable as a matter of policy to punish offenders for their criminal conduct prior to compelling them to testify. While this is not feasible in all cases, a successful prosecution of the witness, or obtaining a plea of guilty to at least some of the charges against the witness, will avoid or mitigate arguments of co-defendants made to the court or jury that the witness “cut a deal” with the government to avoid the witness’s own conviction and punishment.

9-23.214 – Granting Immunity to Compel Testimony on Behalf of a Defendant
As a matter of policy, 18 U.S.C. § 6002 will not be used to compel the production of testimony or other information on behalf of a defendant except in extraordinary circumstances where the defendant plainly would be deprived of a fair trial without such testimony or other information. This policy is not intended to preclude compelling a defense witness to testify if the prosecutor believes that to do so is necessary to a successful prosecution.

Defendants themselves only rarely get immunity, and then only with respect to matters ancillary to the prosecution. Prosecutors must be mindful of the “he cut a deal” claim by the other defendants thrown under the bus by the testimony from the now-immunized witness. If those aren’t issues, the prosecutor then must consider “the public interest” and include within their contemplation of the public interest at least six criteria under section 9-23.210:

A. The importance of the investigation or prosecution to effective enforcement of the criminal laws;
B. The value of the person’s testimony or information to the investigation or prosecution;
C. The likelihood of prompt and full compliance with a compulsion order, and the effectiveness of available sanctions if there is no such compliance;
D. The person’s relative culpability in connection with the offense or offenses being investigated or prosecuted, and his or her criminal history;
E. The possibility of successfully prosecuting the person prior to compelling his or her testimony;
F. The likelihood of adverse collateral consequences to the person if he or she testifies under a compulsion order. ((It is criterion 9-23.210(F) which has a few of my more cynical friends discussing General Flynn’s plans to “commit suicide by Putin.”))

Finally, there is the issue of what kind of immunity is to be granted if it is granted at all. Here, federal prosecutors are guided to another text, the Criminal Resource Manual, sections 716-719. The immunity usually requested by a would-be witness is “transactional immunity,” which means that an act of the witness described in the witness’ testimony may not later be prosecuted, where “use immunity” only protects the witness from having that testimony used against him later. In other words, the witness can still be prosecuted for the crimes he admits to have committed, if there is sufficient other evidence acquired before the grant of immunity ((Or, under the “fruit of the poisonous tree” doctrine, which would demonstrably have been available notwithstanding the testimony. This is roughly the holding of Kastigar v. United States, 406 U.S. 441 (1972), set out in Criminal Resource Manual 718.)) to convict him. Finally, there is something called “informal immunity,” which is not a statutory grant of immunity but rather a contractual agreement to not prosecute in exchange for the witness voluntarily giving testimony. Informal immunity, unlike the other kinds, is not binding upon a state-level prosecutor in the event that a witness admits violation of a state law while testifying pursuant to an informal immunity agreement with the Department of Justice.

Now, take a look at that those last two sentences again. A prosecutor can informally agree, on behalf of the Justice Department, to not prosecute a witness for a given set of crimes. That would very much be the way I’d like to go if I were a prosecutor inclined to seek immunity for a particular witness. After all, I’m guided as a prosecutor to seek punishment where it can happen. What I would much prefer to do rather than grant immunity at all would be to have the would-be witness strike a plea bargain with me for a lesser-included charge, and stipulate that the greater charge pending against the witness would be encompassed by the Double Jeopardy Rule. After all, the grant of immunity wouldn’t be necessary if the witness had not done something that raised a reasonable possibility that the witness himself had committed a crime.

For this reason, part of what a witness requesting immunity needs to do is make a proffer. Somehow, the witness would need to tell me what it was that he was going to say and why I might need or want it as part of my prosecution. It’s the witness’ problem to figure out how to describe the anticipated testimony without actually giving me the information itself. Something along the lines of “My testimony will identify people more significant than me who are guilty of other, greater crimes, and my personal knowledge of having seen them commit those crimes.”

That leads us to other incentives to prosecutors. Now, I am not a prosecutor and never have been one. I know of one law blogger who would be ideal to comment on this issue. But in his absence, and at this level of analysis, it isn’t that hard to figure out how a prosecutor would think, whilst obliged to operate within this scheme of rules.

Obviously, the prosecutor would like to reel in the biggest fish possible in a prosecution: for instance, if it’s a drug dealing case, getting information about the head of the cartel is better than getting information about a mid-level distributor and a handful of enforcers. You’d grant an enforcer immunity if the enforcer were going to throw the big guy under the bus. But you wouldn’t be inclined to grant immunity to the #2 guy in the operation, unless that was absolutely the only way you could get the #1 guy.

Generally, though, you’d want to take as many of the top guys in a criminal enterprise down as you can.

Which is why a request for immunity by General Flynn seems so very strange to me. If I were a prosecutor, I’d certainly be disinclined to grant of immunity to General Flynn. By any rational standard, Flynn is one of the top guys. Flynn would be my target. He’s got to offer me a better target than himself — and he’s got to offer me something that I can have a good sense will let me actually hit that target. In a case concerning a foreign government exercising surreptitious influence over governmental officials close to the President through illegal means, what could possibly meet that standard?

Only a claim against the President himself, so far as I can tell. And that makes the President’s tweet about the issue that much more confusing:

Now, this is hardly the first case of Trump making a tweet that seems unwise to the rest of the world, but this is an enormous risk to the President. There is about zero reason that I can see for a prosecutor to (in good faith) seek any kind of immunity whatsoever for Flynn other than a case against the President himself that already had some meat on the bones. Now, this post isn’t intended to flesh out the evidence for such a case, though you’re free to discuss that in the comments if you wish. It’s to point out that this request for immunity doesn’t seem remotely well-calculated to accomplish anything of legal significance and Flynn doesn’t seem likely to get any kind of immunity at all.

If he does, I’d predict that it would be the “informal immunity” of a plea deal to, say, perjury on Flynn’s financial disclosure documents, in exchange for testimony directly incriminating President Trump of a serious crime.

Don’t #Resist by Going to Law School

For the young and idealistic, those who are jaded with their current careers, and those who hate President Trump for whatever reason, they may think that now would be a good time to become a lawyer and be part of the action.

There has a recent increase in LSAT and law school applications, with some speculating that it is partly in response to Trump. Some are calling it the “Trump Bump.” An increase in applications does not necessarily mean more people will go to law school, as some people apply to explore their options and use their acceptance letters as leverage for scholarships or job offers. But it is an indication of things to come.

…Bad idea, according to Shannon Achimalbe:

[A]ctivists should not go to law school because they don’t have to be lawyers to make change. The three years spent in law school can be spent pursuing their social causes. In fact, the large student loan debt might limit their options and possibly force them to work for the dark side. [¶] … Once you graduate from law school and pass the bar exam, you can do your part to represent an immigrant for free. But if you want to resist, there are other, less expensive ways to do it. When you graduate with limited job prospects and huge student loan debt, who do you think will get the last laugh?

The Legal Imagination

A delightful bit from a reader in legal theory Queen Mary University of London’s School of Law, Maksymilian Del Mar, about the importance of imagination to the lawyer:

You’d be forgiven for thinking of a judge as someone who spends all day shoehorning ‘the facts’ into pre-fabricated principles, and laying down determinative rulings like geological strata. In fact, legal reasoning is a much more supple exercise. Individual judges must resolve knotty questions under conditions of uncertainty, and in a context in which there’s usually profound disagreement about both what has happened and what ought to be done about it.

* * *

Overall, imagining is a mode of enquiry into what might matter – a collective, interactive investigation of what might be at stake in some dispute or issue. Fictions, metaphors, hypothetical narratives and multiple perspectives are hugely helpful because they each generate a different set of possibilities. These devices are what make legal reasoning so resourceful and ingenious, because they are inherently tentative and experimental. Sometimes, this form of communication involves pretence and make-believe; at other times, quirky juxtapositions – of trees and constitutions, or of customs and crystals.

I commend the entire article to you.

Lawrence Solum on Originalism and Judge Gorsuch

I studied civil procedure and jurisprudence under Professor Solum many years ago and can assure all readers that he speaks the truth about his own political preferences in the quoted passages from his prepared remarks below. He testifies today in support of Neil Gorsuch’s nomination to the Supreme Court:

I am not a conservative or libertarian, but I do believe in originalism. Why is that? It is because I am convinced that giving judges the power to override the Constitution and impose their own vision of constitutional law is dangerous for everyone. If you are a Democrat, you should ask yourself the question: Given that the next Justice will be appointed by a Republican President and confirmed by a Republican Senate, would you prefer an originalist like Judge Gorsuch or would I prefer a conservative Justice who does not believe that she or he is bound by the constitutional text? The alternative to originalism is a Justice who believes that she or he is free to override the constitutional text in the name of her or his own beliefs about what the Constitution should be given changing circumstances and values.

* * *

It is true that neither originalism nor any other constitutional theory can work if the Justices are corrupted by ideology. For originalism to work in practice, the President must nominate and the Senate must confirm Justices with the virtue of judicial integrity. They must be willing to subordinate their own political and ideological preferences to the law. They must set aside their preconceptions and desires and engage in a search for truth—with a willingness to reach outcomes as judges that would necessarily agree if they were lawmakers. In this regard, I take comfort from what I have read about Judge Gorsuch’s reputation for integrity. The job of this committee should be to examine the record carefully. If you believe that Judge Gorsuch has the virtue of judicial integrity and that he is committed to the principle that the Supreme Court is bound by the Constitution, then I believe that your duty is to vote for the nomination.

I’ve grave doubts about the way that originalism has been used and deployed in both judicial reasoning and political rhetoric surrounding the Supreme Court for many years. If the originalism described by Professor Solum were consistently and faithfully applied I might be less skeptical. But the process of selecting and confirming a Supreme Court Justice is hugely politicized. Such an environment seems the exact opposite of one in which the virtue of judicial integrity might be either prized or identified.

Let us hope that despite this sorry state of political affairs, Judge Gorsuch nevertheless possesses this virtue — as he is all but certain to soon become Justice Gorsuch.

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Amul Thapar Nominated For Sixth Circuit

President Trump has nominated Amul R. Thapar for a seat on the Sixth Circuit Court of Appeals.

Judge Thapar currently serves as a United States District Court Judge for the Eastern District of Kentucky, where he has sat since 2007. The most prominent case he has handled, so far as I can tell, was on assignment to the Eastern District of Tennessee, where he heard the trial of protestors who broke into the Y12 building at the Oak Ridge National Laboratory.

Prior to his elevation to the bench, he was the United States Attorney for the Eastern District of Kentucky from 2006 to 2007 where he earned his “tough on crime” credential. He is 47 years old and is a 1994 graduate of Boalt Hall. His name originally appeared on then-Candidate Trump’s “long list” of potential Supreme Court nominees, the one ghostwritten by the Heritage Foundation and the Federalist Society.

I’ve long considered the Sixth Circuit the most conservative of the various Federal appellate courts, and it’s a good bet that Judge Thapar will do little to steer that court in a different direction.

One Month, One Appointment

Donald Trump has been President for an entire month. Other than nominating Judge Neil Gorsuch of the Tenth Circuit Court of Appeals to the United States Supreme Court, he has not made any judicial appointments. As I wrote over a month ago, one in eight seats on the Federal bench are currently vacant. This has an impact on the speed with which cases can be handled, the need to reach out to retired judges or judges at different levels of the bench to share work, and the amount of attention that can be given to each individual dispute.

Of course, we should expect the White House to nominate conservative lawyers to the bench, but there is no shortage of smart, well-qualified, conservative lawyers in each and every state of the Union. So it’s disappointing to see the high-profile Supreme Court nomination obscure the reality of complete inaction on the part of the White House to address the depleted state of the federal bench. Simply put, the courts need judges to work, and there aren’t enough of them in place to get the business of the judiciary done.

I guess there’s no choice but to check back later and we’ll see what happens next.

Targeting LBJ’s Revenge

What Is The Johnson Amendment?

The Johnson Amendment was passed in 1954 by a Republican Congress and signed into law by President Eisenhower. It was offered by then-Senator Lyndon B. Johnson, a Democrat from Texas, who was motivated by a nonprofit, nonreligious entity that had endorsed his Republican rival in a recent election. It was introduced on the floor as an amendment to a revision to section 501(c)(3) of the Internal Revenue Code, and consequently there is functionally no legislative history suggesting what Senator Johnson or his colleagues thought was included in, or excluded from, the term “political activity.”

Most churches in the U.S. are now 501(c)(3) entities. The language was amended again in 1987, to include not only activities on behalf of a particular candidate but to also include activities in opposition to a particular candidate. Today, it is part of section 501(c)(3) of the Internal Revenue Code, defining as one of twenty-nine kinds of entities which are exempt from paying Federal taxes. The applicable section of the tax law reads as follows:

Corporations, and any community chest, fund, or foundation, organized and operated exclusively for religious, charitable, scientific, testing for public safety, literary, or educational purposes, or to foster national or international amateur sports competition (but only if no part of its activities involve the provision of athletic facilities or equipment), or for the prevention of cruelty to children or animals, no part of the net earnings of which inures to the benefit of any private shareholder or individual, no substantial part of the activities of which is carrying on propaganda, or otherwise attempting, to influence legislation (except as otherwise provided in subsection (h)), and which does not participate in, or intervene in (including the publishing or distributing of statements), any political campaign on behalf of (or in opposition to) any candidate for public office(Emphasis added.)

 

How Is The Johnson Amendment Applied?

In 2006, the IRS issued FS 2006-17, which indicated that voter education such as publishing candidate voting records and platforms, voter registration drives, and get-out-the-vote drives do not count as “political activity” so long as they are done in a nonpartisan fashion. “Partisan” in this context was defined as failing to include disfavored candidates, refusing to submit voters who indicate a certain partisan preference, or misrepresenting or portraying as favorable the positions of candidates described. 501(c)(3) tax-exempt organizations may invite candidates to speak to them, but the invitations must be open to all candidates for that office.

Under FS 2006-17, a 501(c)(3) may engage in “issue advocacy,” but may not closely link its “issue advocacy” with the positions of particular candidates and is cautioned to avoid issue advocacy efforts timed to coincide with an imminent election. Some members may recall that in 2008, certain churches in California urged their members to vote in favor of California’s Proposition 8 which banned same-sex marriage; this did not violate the Johnson Amendment under FS 2006-17, because it related to the issue of same-sex marriage rather than any candidate.

I find no evidence that the Johnson Amendment has ever been directly challenged for validity under the First Amendment, under the Free Exercise or Free Speech clauses. It seems to me that substantial challenges under those clauses might be mounted and there are indications that religious-rights advocacy organizations like the Alliance Defense Fund and the ACLJ are attempting to bring exactly such a challenge right now. I’d welcome information regarding those claims, or on precedent that my cursory survey missed.

Judicial challenges to the law have instead taken the form of disputing IRS rulings and enforcement of it. The most prominent case law interpreting the Johnson Amendment is United States v. Dykema, 666 F.2d 1096 (7th Cir. 1981). In Dykema, the Seventh Circuit indicated that whether a tax-exempt entity’s activities violate the Johnson Amendment must be evaluated in light of all relevant “facts and circumstances.” Among these were the following discussed extensively by the Dykema Court, at 1100-1104 are whether the purpose of the organization exclusively for one of the purposes described within 501(c)(3), whether a substantial part of the organization’s activities consist of attempting to influence legislation, and whether the organization participates in political campaigns. For instance, in Regan v. Taxation With Representation of Washington, 461 U.S. 540 (1983) TWR was denied 501(c)(3) status because of its routine activity of lobbying for various forms of taxpayer rights. In particular the TWR Court was moved by the fact that the entity engaged in “express advocacy.” Note, though, that a standard of “express advocacy” would be substantially narrower than a standard that engages in the holistic “facts and circumstances” test described (and historically more often applied) in Dykema. See, e.g., FEC v. Christian Coalition, 52 F.Supp.2d 45, 53 (D.D.C. 1999).

The tension between these two tests was noted in Association of the Bar of the City of New York v. Commissioner, 858 F.2d 876 (2d Cir. 1988). In New York Bar, the lawyer’s association published to its members an informational newsletter that ranked candidates in order of preference based on issues selected by the leadership of the entity. This was found to constitute “political activity” under the “facts and circumstances” test, but not under the “express advocacy” test, because there was neither a formal endorsement nor a formal dis-endorsement. Ultimately, the New York Bar Court applied the broader “facts and circumstances” test from Dykema, and concluded that the New York Bar had violated the Johnson Amendment, with the penalty that the New York Bar lost its 501(c)(3) tax-exempt status. The Supreme Court has not yet issued a decision announcing which of the two standards applies, and under the case of Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843-45 (1984), Federal courts are generally guided to defer to any reasonable interpretation of an ambiguous law that is used by the agency charged with enforcing that law absent other guidance.

 

Why Is The Johnson Amendment In Politics Now?

On January 3, 2017, Congressman Walter B. Jones of North Carolina introduced a bill, titled H.R. 172, which would strike the language “, and which does not participate in, or intervene in (including the publishing or distributing of statements), any political campaign on behalf of (or in opposition to) any candidate for public office” from section 501(c)(3) of the Internal Revenue Code. If passed, this would effectively repeal the Johnson Amendment. Rep. Jones describes the purpose of the bill as follows: “To restore the Free Speech and First Amendment rights of churches and exempt organizations by repealing the 1954 Johnson Amendment.” H.R. 172 has been referred to the House Committee on Ways and Means, which is the committee that controls tax law; the committee has yet to take action on the bill.

On February 2, 2017, President Trump attended the annual National Prayer Breakfast in Washington, DC. During his remarks, he cited “the right to worship according to our own beliefs” as a fundamental freedom of all Americans, and then said: “That is why I will get rid of and totally destroy the Johnson Amendment and allow our representatives of faith to speak freely and without fear of retribution. I will do that. Remember.”

President Trump lacks Constitutional power to unilaterally “get rid of and totally destroy” the Johnson Amendment, because it is a part of formal statutory law. Only Congress can amend statutes. What President Trump can do, unilaterally, is issue an executive order instructing the Commissioner of the Internal Revenue Service to apply the narrower “express advocacy” test during Trump’s Presidency.

We may certainly infer from the President’s remarks this past Thursday that should H.R. 172 pass out of Congress, he will sign the bill into law. Some might go further and anticipate that the President and members of his Administration will use their political influence to lobby Members of Congress in favor of passing H.R. 172.

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