Dead Letter Office: What’s Left of the Impeachment Power After Trump’s Acquittal

DEAN FALVY

Dean Falvy, a lecturer at the University of Washington School of Law in Seattle, discusses what happens now, after Senate Republicans voted to acquit President Trump. Falvy predicts that (1) President Trump will be emboldened to commit further abuses of power, (2) future presidents will be less constrained by fear of impeachment, and (3) impeachment may become more routine as political practice and significantly less effective as a constitutional remedy.

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United States v. Apple Mac Pro Computer

Court: US Court of Appeals for the Third Circuit

Docket: 17-3205

Opinion Date: February 6, 2020

Judge: Julio M. Fuentes

Areas of Law: Communications Law, Criminal Law, Internet Law

Officers executed a search warrant at Rawls’ residence, yielding an iPhone 6 and a Mac Pro Computer with attached external hard drives, all protected with encryption software. With a warrant, forensic analysts discovered the password to decrypt the Mac Pro but could not determine the passwords for the external hard drives. The Mac Pro revealed an image of a pubescent girl in a sexually provocative position, logs showing that it had visited likely child exploitation websites and that Rawls had downloaded thousands of files known to be child pornography. Those files were stored on the external hard drives. Rawls’ sister stated that Rawls had shown her child pornography on the external hard drives. A Magistrate ordered Rawls to unencrypt the devices. Rawls cited the Fifth Amendment privilege against self-incrimination. The court denied Rawls’ motion, reasoning the act of decrypting the devices would not be testimonial. Rawls decrypted the iPhone, which contained 20 photographs that focused on the genitals of Rawls’ six-year-old niece. Rawls stated that he could not remember the passwords for the hard drives. The Third Circuit affirmed a civil contempt finding. Rawls, incarcerated since September 2015, moved for release, arguing that 28 U.S.C. 1826(a) limits the maximum confinement for civil contempt to 18 months. The Third Circuit ordered his release, rejecting the government’s argument that Rawls was not a “witness” participating in any “proceeding before or ancillary to any court or grand jury.” The proceedings to enforce the search warrant fall within the statute’s broad description of any “proceeding before or ancillary to any court or grand jury," the Decryption Order is “an order of the court to testify or provide other information,” and section 1826(a) applies to the detention of any material witness, even if that person is also a suspect in connection with other offenses.

Warciak v. Subway Restaurants, Inc.

Court: US Court of Appeals for the Seventh Circuit

Docket: 19-1577

Opinion Date: February 5, 2020

Judge: William Joseph Bauer

Areas of Law: Business Law, Communications Law, Contracts

T-Mobile customers can participate in “T-Mobile Tuesdays,” a promotional service, offering free items and discounts. Customers who no longer wish to receive marketing communications may opt-out by contacting T-Mobile’s customer service. T-Mobile user Warciak received a text message: This T-Mobile Tuesday, score a free 6” Oven Roasted Chicken sub at SUBWAY, just for being w/ T-Mobile. Ltd supply. Get app for details. The message came from T-Mobile. Warciak was not charged for the text. Warciak sued Subway claiming Subway engaged in a common-law agency relationship with T-Mobile, and that Subway’s conduct violated the Telephone Consumer Protection Act (TCPA). T-Mobile is not included in the lawsuit. The court dismissed the complaint as lacking sufficient support for claims of actual and apparent authority: control over the timing, content, or recipients of the text message. The court also found that the wireless carrier exemption applied so that no underlying TCPA violation exists ( 47 U.S.C. 227(b)(2)(C)). Prior written consent is not required for calls to a wireless customer by his wireless carrier if the customer is not charged. The Seventh Circuit affirmed. The only alleged conduct by Subway is its contractual relationship with T-Mobile. Warciak’s complaint lacks sufficient facts showing Subway manifested to the public that T-Mobile was its agent. He relied on T-Mobile’s conduct. Statements by an agent are insufficient to create apparent authority without also tracing the statements to a principal’s manifestations or control.