The Federal Tap: Impeachment trial of President Trump begins

January 18, 2020Issue No. 189

Week in review

On tap next week

THE WEEK IN REVIEW

Here's what happened in Federal politics last week.

* Skip to:
* Saturday
* Sunday
* Monday
* Tuesday
* Wednesday
* Thursday
* Friday

## Monday, January 13

### Sanders leads Democratic presidential candidates in Ballotpedia pageviews

* Last week, Bernie Sanders led all Democratic campaigns in pageviews. His campaign page was viewed 2,590 times, equaling 13.0% of pageviews for all Democratic campaigns this week. Joe Biden followed with 11.2% of pageviews and Andrew Yang with 10.6%. The top three Democratic presidential candidates in lifetime pageviews are Yang with 160,560, Pete Buttigieg with 151,377, and Biden with 143,782.
* Michael Bloomberg received the most pageviews this week relative to last week, increasing 62.0%. While all candidates had a positive rate of pageview growth compared to the previous week, Yang saw the smallest increase at 10.1%. The other candidates saw at least a 20% increase.
* As in previous weeks, every other Republican candidate led Donald Trump in pageviews. Trump received 1,683 pageviews, while Bill Weld received 2,522, Joe Walsh received 2,460, and Roque de la Fuente received 2,261.

### Supreme Court hears cases on Bridgegate, federal trademark law, and age discrimination in the workplace

* The U.S. Supreme Court heard five cases this week. Click here to read more about SCOTUS' current term.
* January 13
* Lucky Brand Dungarees v. Marcel Fashion Group concerns ongoing trademark infringement litigation between the two parties and res judicata, or claim preclusion. Claim preclusion is a legal principle stating that defendants and plaintiffs cannot re-sue one another on the same cause of action.
* Apparel companies Marcel Fashion Group, Inc. ("Marcel") and Lucky Brand Dungarees, Inc. ("Lucky Brand") filed several lawsuits for trademark infringement. In 2011, Marcel sued Lucky Brand a third time for trademark infringement. The U.S. District Court for the Southern District of New York granted summary judgment to Lucky Brand, ruling a previous lawsuit barred Marcel from suing Lucky Brand. On appeal, the 2nd Circuit Court of Appeals reversed the decision. On remand, Lucky Brand moved to dismiss the suit, which the district court granted. Marcel appealed to the 2nd Circuit, which vacated the Southern District of New York's ruling and remanded the case. Lucky Brand appealed to the U.S. Supreme Court, arguing the 2nd Circuit's decision conflicted with decisions from other circuit courts on similar issues.
* The issue: Whether, when a plaintiff asserts new claims, federal preclusion principles can bar a defendant from raising defenses that were not actually litigated and resolved in any prior case between the parties.
* Thole v. U.S. Bank involves the handling of a defined benefit pension plan by U.S. Bank.
* James Thole and Sherry Smith sued U.S. Bank, N.A. over U.S. Bank's management of a defined benefit pension plan. Thole and Smith alleged the bank violated the Employee Retirement Income Security Act of 1974 (ERISA) and engaged in prohibited transactions, causing the plan to become underfunded.
* U.S. Bank moved to dismiss the case, arguing that the plaintiffs did not have the legal right to sue and the statute of limitations had run out on the ERISA claims. The district court dismissed in part and granted in part U.S. Bank's motion. In 2014, the plan became overfunded. The district court dismissed the case as moot. Thole and Smith appealed to the 8th Circuit Court of Appeals, which affirmed the district court's ruling. The plaintiffs then petitioned the U.S. Supreme Court to review the case, arguing the 8th Circuit's ruling conflicted with other circuit court decisions.
* The issues:
* May an ERISA plan participant or beneficiary seek injunctive relief against fiduciary misconduct under 29 U.S.C. 1132(a)(3) without demonstrating individual financial loss or the imminent risk thereof?
* May an ERISA plan participant or beneficiary seek restoration of plan losses caused by fiduciary breach under 29 U.S.C. 1132(a)(2) without demonstrating individual financial loss or the imminent risk thereof?
* Whether petitioners have demonstrated Article III standing.
* January 14
* Kelly v. United States concerns former New Jersey public officials and an alleged traffic scheme which later became known as Bridgegate.
* William Baroni, who was the Port Authority's deputy executive director appointed by Gov. Chris Christie (R), and Bridget Kelly, who was deputy chief of staff for the New Jersey Office of Intergovernmental Affairs, were convicted of fraud from federally funded programs, wire fraud, conspiracy to commit fraud, and conspiracy against civil rights. Baroni and Kelly allegedly participated in a scheme to reduce local traffic lanes on the George Washington Bridge, which spans Fort Lee, New Jersey, and New York City, to punish Fort Lee's mayor for refusing to endorse Gov. Christie's 2013 re-election bid.
* Baroni and Kelly appealed their convictions to the 3rd Circuit Court of Appeals. The 3rd Circuit affirmed the fraud convictions but reversed and vacated the civil rights convictions. Kelly appealed the 3rd Circuit's ruling with the U.S. Supreme Court, arguing the 3rd Circuit conflicted with U.S. Supreme Court precedent and decisions from other circuit courts.
* The issue (from SCOTUS): Does a public official "defraud" the government of its property by advancing a "public policy reason" for an official decision that is not her subjective "real reason" for making the decision?
* Romag Fasteners v. Fossil involves The Lanham Act, which provides for a national system of trademark registration and trademark protection for federally registered marks.
* Romag Fasteners, Inc., sued Fossil for patent and trademark infringement in the U.S. District Court for the District of Connecticut. A jury found Fossil guilty of unintentional patent and trademark infringement. The jury decided Fossil should pay more than $6.8 million in profits to Romag. In a separate trial, the district court ruled Romag was not entitled to receive profits because Fossil's infringement was unintentional. On appeal to the U.S. Court of Appeals for the Federal Circuit, the court affirmed the district court's ruling.
* The issue: Whether, under section 35 of the Lanham Act, 15 U.S.C. § 1117(a), willful infringement is a prerequisite for an award of an infringer's profits for a violation of section 43(a), id. § 1125(a).
* January 15
* Babb v. Wilkie concerns age and gender discrimination in the workplace.
* Pharmacist Dr. Noris Babb worked at the VA Medical Center in Bay Pines, Florida. Babb sued the U.S. Department of Veterans Affairs (VA) secretary, alleging age and gender discrimination and a hostile work environment. The U.S. District Court for the Middle District of Florida rejected Babb's claims, granting summary judgment to the VA secretary. On appeal, the 11th Circuit Court of Appeals reversed the district court's ruling on Babb's gender discrimination claim and affirmed the district court's ruling on Babb's age discrimination and hostile-work-environment claims. The court remanded the case. Babb petitioned the U.S. Supreme Court for review, arguing the 11th Circuit's decision disadvantaged federal employees bringing discrimination claims under Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act (ADEA) of 1967.
* The issue: Whether the federal-sector provision of the Age Discrimination in Employment Act of 1967, providing that personnel actions affecting agency employees aged 40 years or older shall be made free from any "discrimination based on age," 29 U.S.C. §633a(a), requires a plaintiff to prove that age was a but-for cause of the challenged personnel action.

### Hunter resigns from House of Representatives

* Congressman Duncan Hunter’s (R-Calif.) resignation from the House of Representatives took effect. Hunter pleaded guilty to misuse of campaign funds in December 2019 and announced that he would resign after the holidays.
* Hunter and his wife and former campaign manager, Margaret, were indicted on federal charges of wire fraud, falsifying records, campaign finance violations, and conspiracy in August 2018. The indictment alleged that Hunter and his wife used $250,000 in campaign funds for personal use, including vacations, school tuition, and entertainment. The sentencing in this case is scheduled for March 2020.
* Gov. Gavin Newsom (D) previously announced that a special election will not be held in 2020 in Hunter’s 50th Congressional District.
* After Hunter's resignation, the partisan composition of the House of Representatives is 232 Democrats, 197 Republicans, one independent, and five vacancies.

## Tuesday, January 14

### Six Democratic presidential candidates debate in Iowa

* Six Democratic presidential candidates participated in the seventh presidential primary debate at Drake University in Des Moines, Iowa: Joe Biden, Pete Buttigieg, Amy Klobuchar, Bernie Sanders, Tom Steyer, and Elizabeth Warren.
* The candidates discussed foreign policy, trade, electability, healthcare, childcare, climate change, and impeachment. Warren had the most speaking time at 18.9 minutes. Steyer spoke the least at 12.4 minutes.
* For highlights from the debate for each candidate, click here.

### Supreme Court issues two rulings

* The Supreme Court issued rulings on two cases, Ritzen Group Inc. v. Jackson Masonry and Retirement Plan Committee of IBM v. Jander.
* In Ritzen Group Inc. v. Jackson Masonry, Ritzen Group and Jackson Masonry both claimed that the other party breached contract after a sale of property fell through. A lawsuit Ritzen filed against Jackson in Tennessee state court was stayed after Jackson filed for bankruptcy. Ritzen filed a motion to lift the stay, which the bankruptcy court denied. Ritzen then filed a claim against Jackson in bankruptcy court. The bankruptcy court found Ritzen, not Jackson, breached the contract. On appeal, the district court affirmed the bankruptcy court’s ruling. On appeal again, the 6th Circuit affirmed the judgments of the district court and bankruptcy court.
* The U.S. Supreme Court affirmed the ruling of the U.S. Court of Appeals for the 6th Circuit, ruling unanimously that a bankruptcy court’s order unreservedly denying relief from the automatic stay constitutes a final, immediately appealable order under §158(a). Justice Ruth Bader Ginsburg delivered the opinion of the court.
* In Retirement Plan Committee of IBM v. Jander, Larry Jander invested in IBM’s retirement plan. After IBM sold its microelectronics business at a loss and shares fell, Jander alleged the IBM retirement plan committee violated their fiduciary duty of prudence to the pensioner under the Employee Retirement Income Security Act (ERISA). The U.S. District Court for the Southern District of New York dismissed Jander’s claim. On appeal, the 2nd Circuit reversed and remanded the case. The retirement committee petitioned the U.S. Supreme Court to hear the case, arguing the 2nd Circuit "subverted [a] pleading standard" established in Fifth Third Bancorp v. Dudenhoeffer.
* The Supreme Court vacated and remanded the case in a per curiam decision. A per curiam decision is issued collectively by the court. The authorship is not indicated. Justices Elena Kagan and Ruth Bader Ginsburg filed a joint concurring opinion. Justice Neil Gorsuch also filed a concurring opinion.

## Thursday, January 16

### Chief Justice Roberts, U.S. senators sworn in for impeachment trial of President Trump

* The impeachment trial of President Donald Trump (R) began when seven House impeachment managers, led by Rep. Adam Schiff (D-Calif.), presented to the U.S. Senate two articles of impeachment against Trump for abuse of power and obstruction of Congress.
* Supreme Court Chief Justice John Roberts was sworn in as the presiding officer of the trial. All 100 U.S. senators were then sworn in by Roberts to serve as jurors.
* The trial is expected to continue with opening statements on Jan. 21.
* Trump is the third president in U.S. history to be impeached. President Andrew Johnson was acquitted in 1868 after being charged with violating the Tenure of Office Act. In 1999, President Bill Clinton was acquitted of two charges for perjury and obstruction of justice.

Congress is out of session

The House is out of session next week, and the schedule for the Senate is not yet available. Click here to see the full calendar for the second session of the 116th Congress.

SCOTUS is in session

The Supreme Court will hear arguments in three cases this week. To learn about the current 2019-2020 term, click here.

WHAT'S ON TAP NEXT WEEK

Here's what is happening in Federal politics this week.

* Skip to:
* Saturday
* Sunday
* Monday
* Tuesday
* Wednesday
* Thursday
* Friday

## Tuesday, January 21

### Supreme Court will hear last three cases of January sitting

* The U.S. Supreme Court will hear three cases this week. Click here to read more about SCOTUS’ current term.
* January 21
* In Shular v. United States, Eddie Shular pleaded guilty to charges of possession of a firearm by a convicted felon and to controlled substances possession. Shular was classified as an armed career criminal because of six previous drug convictions in Florida. He objected to the classification in court, arguing his previous convictions were not "serious drug offenses" under the Armed Career Criminal Act (ACCA).
* The Northern District of Florida overruled the objection and sentenced Shular to concurrent terms of 15 years in prison on each count. On appeal, the 11th Circuit Court affirmed the district court's ruling. Shular appealed to the U.S. Supreme Court, arguing the 11th Circuit was wrong not to have used a categorical approach to interpret "serious drug offenses" under the ACCA and pointing to a circuit split regarding the determination of serious drug offenses under the ACCA.
* The issue: Whether the determination of a "serious drug offense" under the Armed Career Criminal Act requires the same categorical approach used in the determination of a "violent felony" under the Act?
* In GE Energy Power Conversion France SAS v. Outokumpu Stainless USA LLC, Outokumpu Stainless USA LLC ("Outokumpu") contracted with Fives St. Corp. ("Fives") to provide equipment for its steel plant in Alabama. Fives subcontracted with GE Energy Power Conversion France SAS ("GE Energy"), a foreign corporation, to supply the equipment. The contracts between Outokumpu and Fives and between Fives and GE Energy contained arbitration clauses. The equipment was installed between 2011 and 2012 but failed by 2015. Outokumpu sued GE Energy in Alabama state court.
* The case was moved to federal district court, which dismissed the case and compelled Outokumpu to undertake arbitration proceedings. On appeal, the 11th Circuit Court of Appeals reversed the district court's decision to compel arbitration. GE Energy appealed to the U.S. Supreme Court for review, arguing the 11th Circuit's decision underlined a 2-to-2 circuit court split.
* The issue: Whether the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the "New York Convention") permits a non-signatory to an arbitration agreement to compel arbitration based on the doctrine of equitable estoppel.

* January 22
* In Espinoza v. Montana Department of Revenue, a 2015 law established a tax credit for taxpayers donating to scholarship organizations for private school students. The law made the Montana Department of Revenue responsible for administering the tax credit and ensuring the credit was constitutional. To ensure compliance, the Department established Rule 1, which excluded students attending religiously affiliated private schools from receiving scholarship funds.
* Kendra Espinoza, Jeri Anderson, and Jaime Schaefer, the plaintiffs, challenged Rule 1 in the Montana 11th Judicial District Court, arguing it violated their constitutional rights to free exercise of religion. The 11th Judicial District granted summary judgment to the plaintiffs. On appeal, the Montana Supreme Court reversed the 11th Judicial District's ruling. The plaintiffs appealed to the U.S. Supreme Court, writing that the Montana Supreme Court's ruling "deepened the long-standing split on whether barring religious options from student-aid programs violates the federal Religion and Equal Protection Clauses."
* The issue: Does it violate the Religion Clauses or Equal Protection Clause of the United States Constitution to invalidate a generally available and religiously neutral student-aid program simply because the program affords students the choice of attending religious schools?

## Friday, January 24

### Congressional candidate filing period to end in Maryland

* The major-party filing deadline will pass to run for elected office in Maryland. In Maryland, prospective candidates may file for eight seats in the U.S. House. The primary is scheduled for April 28, and the general election is scheduled for November 3, 2020.
* Maryland’s statewide filing deadline is the 10th to take place in the 2020 election cycle. The next statewide filing deadline is on January 25 in West Virginia.

Where was the president last week?

* On Monday, Trump attended the College Football Playoff National Championship in Louisiana.
* On Tuesday, Trump spoke at a Keep America Great rally in Wisconsin.
* On Wednesday, Trump met with the Vice Premier of the People’s Republic of China and signed a trade agreement.
* On Thursday, Trump participated in the Announcement of the Guidance on Constitutional Prayer in Public School.
* On Friday, Trump participated in a roundtable with supporters and spoke at a joint finance committee dinner at Mar-a-Lago.

Federal Judiciary

* 79 federal judicial vacancies
* 19 pending nominations
* 12 future federal judicial vacancies

## About[edit]

The Tap covered election news, public policy, and other noteworthy events from February 2016 to February 2022.

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