Peck Continues to Answer Press Questions about Impeachment

February 12th, 2021

     CCL President Robert S. Peck continues to serve as a source for reporters covering the second impeachment trial of Donald Trump. Answering an array of questions about procedures, constitutional requirements, the legitimacy of trying a former president, the First Amendment and incitement, and other related topics, Peck has provided answers to CBS stations across the country,, the Scripps-Howard network, Newsmax, and USA Today. 

     In his interviews, Peck has said that the Constitution does not bar a Senate trial of a former president who was impeached while still in office and that the First Amendment provides no basis for exempting the January 6 exhortation of people gathered by the then-president for the explicit purpose of stopping the Electoral College count from conviction in an impeachment trial. He has also explained the "imminent lawless action" standard declared by the Supreme Court in Brandenburg v. Ohio (1969), as well as the rudimentary understanding of constitutional issues that defense counsel has shown in their briefing and time on the Senate floor.

Peck Assists Cruise Liability Case

February 11th, 2021

     In Morrison v. Royal Caribbean Cruises, a federal magistrate judge must determine issues of liability and law after a three-day trial, in which the Miami's Aronfeld law firm represented the plaintiff, injured when she tripped over an out-of-place, marble-based ashtray in the ship's casino. Prior to decision, the judge asked both sides to offer a draft findings of fact and conclusions of law. Yesterday, plaintiff's counsel filed their proposed fact and legal conclusions, with an assist from CCL's Robert S. Peck.

     The plaintiff's injuries were severe, as the wine glass in her hand shattered and glass was embedded in her face, while also causing mild head trauma from a concussion. The cruise line sought to defend by asserting that the plaintiff was intoxicated on the basis of less then three glasses of wine over a six-hour period of time, on the open and obvious nature of the two-foot tall heavy ashtray, even if obscured by a stool, and by the ship's lack of notice that the ashtray was out of place. Peck's legal analysis provided the court with several different precedents to demonstrate that notice was established based on the facts -- from a witness's testimony that the ashtray was out of place for about 30 minutes, from Royal Caribbean's acknowledgement that guests using slot machines will often move the ashtrays and that crew members are responsible for patrolling the narrow aisles and putting them back in place, and from prior incidents involving the ashtrays. 

     The case is now under advisement.

Peck Explains Impeachment Issues on

February 8th, 2021

     On the cusp of the Senate impeachment trial of former President Donald Trump, CCL President Robert S. Peck told that the vast majority of constitutional scholars and lawyers agree that there is no constitutional bar to trying a former president.

      In response to a question about some senators claiming the trial is unconstitutional, Peck pointed out that the Constitution gives the Senate exclusive responsibility for trying all impeachments -- and that this impeachment took place while the Trump was still president. He added that a Senate conviction also allows that body to punish him with a vote that Trump could not again hold federal office. Even if no conviction occurs, the trial would have an important role in the court of history, Peck added.

Fifth Circuit Hears Argument on Personal Jurisdiction Issue

February 4th, 2021

     CCL President Robert S. Peck told a federal appeals court yesterday that personal jurisdiction over a Japanese defendant for a collision between its container ship and a U.S. Navy destroyer comported with due process and the circuit's precedents, requiring that the district court's contrary decision be reversed.

     The lawsuit grows out of a 2017 collision in which the U.S.S. Fitzgerald suffered a significant gash that flooded compartments where the killed and injured sailors were. Personal jurisdiction was premised on a federal rule of civil procedure, Rule 4(k)(2), which applies to lawsuits based on federal law where no state court would have jurisdiction. The district court, sitting in the Eastern District of Louisiana, superimposed a requirement that the foreign defendant also be "at home" in the U.S. Peck asserted that that was error before a panel of the U.S. Court of Appeals for the Fifth Circuit.

      Instead, Peck argued that existing precedent was unimpaired and that it merely required sufficient national contacts. Opposing counsel conceded that, if a national contacts rule applied, his client, NYK Line, did have sufficient national contacts. 

      Peck added that an "at home" overlay would render Rule 4(k)(2) a nullity, for it would apply to no instances at all. If a defendant was "at home" in the United States, then it would necessarily be subject to jurisdiction in some state's court. As a result, the rule would never apply to any instance and would be considered unconstitutional if the "at home" requirement were considered a function of due process.

      The case is now under advisement.

Peck Answers Impeachment Questions for Two News Programs

January 25th, 2021

     With an impeachment trial in the Senate looming, news organizations asked CCL President Robert S. Peck about several questions about what the Constitution and courts have said.

       In an interview that followed the delivery of the article of impeachment to the Senate by the House managers, Newsy, a Scripps-Howard network, asked about the legality of trying a president on an impeachment charge after leaving office. Peck explained that the situation is largely unaddressed by the Constitution, but that historical precedent existed for trying a public official after leaving office, that 150 constitutional law professors, spanning the ideological spectrum, had signed a letter stating that there is no problem in such a trial, and that doing so makes it easier to justify a prohibition on seeking public office again. 

      Peck also told the network that the Supreme Court in a 1993 decision involving impeachment of a judge, had held that the trial was a "political question" that was not susceptible to judicial review. 

      In another interview, this time with WUSA-9, the Washington, DC CBS affiliate, Peck explained that the costs of legal representation in defending the impeachment charge falls to former President Trump. In the impeachment trial of a year ago, the Republican National Committee raised the money to pay for the defense. He noted that the House had hired two lawyers from the outside to assist with the prosecution, but that this did not involve extra expenditures but an allocation from within the House Judiciary Committee's existing budget.

CCL Has Banner Day with Oral Argument, Multiple Brief Filings

January 19th, 2021

      CCL President Robert S. Peck argued a Magnuson-Moss warranty case in the Seventh Circuit, contributed to a petition for certiorari in the Colorado Supreme Court filed today, had an amicus brief he wrote mentioned twice during oral argument in the U.S. Supreme Court, and wrote a brief in opposition to a motion to dismiss filed in Illinois circuit court today.

      In Ware v. Best Buy Stores, the Seventh Circuit will decide whether a Geek Squad Protection Plan (GSPP) is a warranty or a service contract. The Wares were looking to purchase a $3,000 state-of-the-art television set in 2013. When the salesperson and store manager warned them that it would likely only last a couple years and suggested they extend the manufacturer's warranty with a five-year GSPP, which would give them $300 off the TV and free delivery, it was enough to seal the deal. When the set went bad in 2017 after years of problems and became unfixable, Best Buy offered them a discounted voucher for a new TV, saying that what the Wares bought was a service plan, not a warranty, despite language in the document that made it a warranty. The district court dismissed the putative class action, finding that an FTC regulation that said the payment of additional consideration made the GSPP a service contract. In today's appeal in the U.S. Court of Appeals for the Seventh Circuit, Peck argued that Magnuson-Moss was designed to prevent consumer deception and that Best Buy had violated its provisions by multiple indicia that the bundled TV and plan was a single item that included a warranty. The court took the case under advisement.

      The Colorado Supreme Court filing came in a catastrophic medical-malpractice case, Smith v. Surgery Center, where the Court of Appeals took away a significant jury verdict because it said the ambulatory surgery center defendant could not have committed negligence because it was barred from practicing medicine by the corporate practice of medicine doctrine. The reply brief filed today argued that the jury held the center liable for its own negligence and that allowing the published opinion to stand without review would massively expand the doctrine to provide plenary immunity to the center regardless of what it did or what duties it assumed.

      The Supreme Court heard oral argument today in BP v. Mayor and City Council of Baltimore, concerning federal officer removal. Peck wrote an amicus brief on behalf of state and local government groups that, among other things, emphasized that BP's position would allow lawyers to manipulate the system to file interlocutory appeals that Congress had denied authority for. In response to a question from Justice Kagan, Victor Sher, representing Baltimore, invoked the CCL amicus brief. Later, the same amicus brief provided another answer.

     Finally, Peck wrote and filed an opposition to a motion to dismiss in a COVID-19 related nursing home case, Leja v. Bridgeview, in an Illinois state circuit court.

Peck Files Briefs Opposing Dismissal and Striking Parts of Complaint against Illinois Nursing Home

January 18th, 2021

     In briefs filed today, CCL joined the Chicago law firm, Levin & Perconti, in opposing motions to dismiss and motions to strike complaints filed in the U.S. District Court for the Northern District of Illinois over COVID-19 deaths and injuries in a single nursing home.

     The cases involved three different residents, two of whom died, because the nursing home failed to take necessary precautions to avoid infecting residents with the coronavirus. Last year, as the pandemic was surging, Illinois Governor J.B. Pritzker issued two executive orders changing the civil liability standard for certain health care providers rendering assistance to the State in fighting COVID-19. If valid and applicable, the executive orders replaced existing negligence standards with "gross negligence and wanton misconduct" for liability to attach. In the three cases, the plaintiffs pleaded both the negligence and a willful and wanton standard in separate counts. The defendant nursing home sought to dismiss both counts, arguing that the executive order wiped out the negligence claim, while the willful and wanton claim was not authorized by the Illinois Nursing Home Care Act. As the CCL brief, written by Robert S. Peck, pointed out, the nursing home's argument is that each basis for liability cancelled the other. Nonetheless, the brief argued that the motion to dismiss should be denied because the argument does not provide grounds for dismissal, but a basis for an affirmative defense that must be alleged in an answer to the filed complaints.

    The nursing home, alternatively, sought to strike a large number of the complaints' allegations, as immaterial, duplicative, or otherwise improper. The brief argues that none of the grounds asserted provides a legitimate basis for striking any paragraphs from the complaint.

    The nursing home will now have an opportunity to file a reply brief. As the case moves forward, the applicability and the constitutional validity of the executive orders will be at issue.

Peck Interviewed on Presidential Impeachment

January 15th, 2021

     CCL President Robert S. Peck told WUSA-9, the CBS affiliate in Washington, DC that presidential impeachment trials differ from criminal trials because it is part of a constitutional process, informed by politics, that goes to the removal and possible disqualification of a president from future federal office, rather than potential fines and jail. Although the Constitution uses the terms "high crimes and misdemeanors," impeachment does not require a criminal offense and can be premised on a violation of the oath of office.

     Peck also pointed out that the Constitution specifies that criminal charges can still be brought against a person convicted after impeachment.

Peck Featured in Court TV Story on Supreme Court Case

January 14th, 2021

     CCL President Robert S. Peck told Court TV today that an upcoming Supreme Court case is about the right to appeal a decision sending a case back from federal to state court. In BP v. Mayor and City Council of Baltimore, the city sued oil and gas companies over their longstanding denial of the connection between fossil fuels and climate change, raising only state law issues and bringing the case in the Maryland courts. BP and its co-defendants removed the case to federal court, where they believed their federal defenses would receive a friendlier hearing. Among the rationales for removal were that they were operating at the direction of a federal officer. Of all the justifications, only federal-officer removal permits a right of appeal.

     The federal court, however, granted a motion to remand, finding no basis for federal jurisdiction. BP appealed to the Fourth Circuit, asserting that all eight grounds for federal removal were subject to appeal, not just the federal-officer issue. The Fourth Circuit rejected that argument. Next week, the Supreme Court hears the case to determine whether the statute that permits appeal of the federal-officer grounds also permits appeal of the other grounds as well.

    Peck filed an amicus brief on behalf of state and local government groups, arguing that the Fourth Circuit was correct and that the case should be returned to state court. In the Court TV interview, Peck explained the background of the law at issue and the arguments that each side would be making.

Peck Addresses Presidential Issues in Media Interviews

January 12th, 2021

     CCL President Robert S. Peck explained the scope of the pardon power and the meaning of the Fourteenth Amendment's Expulsion Clause in separate media interviews today. 

     To WUSA-9, the Washington, D.C. CBS affiliate, Peck explained that presidential pardon authority is very broad, but was not limitless. He said that the pardon authority can only reach federal crimes, not state criminal violations, could not deter impeachment and conviction, and could not absolve someone of a crime before it occurred. He noted the absence of precedent for a presidential self-pardon and disagreement among scholars, but sided with those who believe a self-pardon is antithetical to both text and practice. 

      Peck also told Politifact that the Fourteenth Amendment's Expulsion Clause provides a basis for excluding those from federal office who violated their oath to defend and protect the Constitution by encouraging, aiding, or even applauding those who mounted an insurrection in an attempt to prevent Congress from totalling the certified electoral votes. Moreover, he suggested that those who continued to perpetrate the false narrative of a stolen election after the assualt on the Capitol provided the type of "aid and comfort" and encouragement of further acts of violence and intimidation that undermine the theory of our democracy and also qualify under Section 3's terms for expulsion.