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Archive for the ‘Law’ Category

Our fearful, Milquetoast media: Media Should Report That President Trump Is Violating The Constitution — And It’s An Impeachable Offense

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Timothy Johnson writes at Media Matters:

According to experts, President Donald Trump’s continued ownership interest in the Trump Organization means that he is in violation of the U.S. Constitution’s Emoluments Clause, which prohibits the president from personally benefiting from actions taken by foreign governments and their agents. Will media hold Trump accountable for this impeachable offense or will they normalize his flagrant violation of the supreme law of the land?

The U.S. Constitution’s Emoluments Clause Prohibits The President From Financially Benefiting From Actions Taken By Foreign Governments

U.S. Constitution Prohibits The President From Accepting Emoluments From Foreign States Without The Consent Of Congress. The U.S. Constitution’s Article I, Section 9 contains a broad provision to prevent foreign governments from corrupting U.S. government by giving benefits to federal officeholders:

No title of nobility shall be granted by the United States: and no person holding any office of profit or trust under them, shall, without the consent of the Congress, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state. [U.S. Constitution via Cornell University Law School Legal Information Institute, accessed 1/19/17]

Merriam Webster Definition Of Emolument: “The Returns Arising From Office Or Employment Usually In The Form Of Compensation Or Perquisites.” [Merriam Webster, accessed 1/19/17]

Legal Ethics Experts: “The Best Reading Of The Clause Covers Even Ordinary, Fair Market Value Transactions That Result In Any Economic Profit Or Benefit To The Federal Officeholder.” The clause does not just cover “sweetheart deal[s]” because “emoluments are properly defined as including ‘profit’ from any employment, as well as ‘salary,” meaning “it is clear that even remuneration fairly earned in commerce can qualify,” according to an analysis published by the Brookings Institute. It was authored by legal ethics experts Norman Eisen, a former Obama administration ethics attorney and current chair of Citizens for Responsibility and Ethics in Washington; Richard Painter, a former Bush administration ethics attorney and current vice chair of Citizens for Responsibility and Ethics in Washington; and Laurence Tribe, a leading expert on constitutional law and professor at Harvard University Law School. [Brookings Institute, 12/16/16]

Violating The Emoluments Clause Is An Impeachable Offense. During the 1788 Virginia Ratifying Convention, Virginia Gov. Edmund Jennings Randolph, who later served as the United States’ first attorney general, said of a president who violates the clause, “If discovered he may be impeached”: . . .

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Written by LeisureGuy

22 January 2017 at 6:44 pm

I think we will see an abrupt change in direction for the Civil Rights Division

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In the New Yorker Jennifer Gonnerman has a profile of Vanita Gupta, the head of the Civil Rights Division of the Deartment of Justice.

From the article at the link:

. . . Gupta joined the Justice Department in the fall of 2014—nine weeks after Michael Brown was killed by a police officer in Ferguson, Missouri. She spent the next two years travelling all over the country—to Ferguson, Cleveland, New Orleans, Baltimore, and elsewhere—to meet with mayors, police chiefs, and citizens, in an attempt to repair the deeply damaged relationships between police departments and their communities. Under Obama, the Civil Rights Division took a more aggressive approach than ever before to stamping out systemic police abuse: the Division negotiated twenty-four agreements with law-enforcement agencies to reform their practices; fifteen of those agreements were consent decrees, which are enforced by a court.

On January 12th, Gupta had been in Baltimore announcing a consent decree with the Baltimore Police Department to address the egregious injustices identified by the Division in an earlier report. The next day, she had been in Chicago to release a devastating hundred-and-sixty-one-page report on that city’s police department. Now she had no idea what might come of all this work. Early in his tenure as Attorney General, Eric Holder had called the Civil Rights Division the “crown jewel” of the Justice Department. Now Senator Jeff Sessions—who had attacked the Civil Rights Division, in 2015, at a Senate hearing called “The War on Police,” saying that it had “an agenda that’s been a troubling issue for a number of years”—was poised to become the next Attorney General.

During the Obama Presidency, the Civil Rights Division was at the center of many of the nation’s most contentious political battles: over policing as well as voting rights, fair housing, hate crimes, and transgender rights. . .

Written by LeisureGuy

21 January 2017 at 6:02 pm

Trump, cops, and crime

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Radley Balko notes some ominous signs:

Within minutes of President Trump’s swearing in, his administration posted several policy positions on the White House website. The topic “Standing Up For Our Law Enforcement Community” is striking.

A Trump Administration will empower our law enforcement officers to do their jobs and keep our streets free of crime and violence. The Trump Administration will be a law and order administration. President Trump will honor our men and women in uniform and will support their mission of protecting the public. The dangerous anti-police atmosphere in America is wrong. The Trump Administration will end it.

These aren’t off-the-cuff remarks. It’s carefully chosen language that presumably went through a number of revisions. Note the wording. Trump will do more than end violence against law enforcement. He will end the “anti-police atmosphere in America.” You don’t end an “atmosphere” without some pretty drastic action. It sounds quite like a promise to crack down on speech and protest. Ominous as that sounds (and it’s pretty ominous), absent some wanton, unheard of abuse of power like federalizing the National Guard to subdue the next round of protests against police abuse, there isn’t a whole lot Trump can do directly, at least not in the short term.

But in the longer term? He could widen the spigot through which military gear flows to police departments, both from the Pentagon and the Department of Homeland Security. He has already promised this. He has already indicated that he’ll call off Justice Department watchdogging of police departments, which could encourage more aggressive responses. He could ramp up the spying and data collecting on protest groups that the federal government has already been doing for decades. He could halt the federal funding that currently promotes community-oriented policing and begin funding more aggressive, reactionary policing.

I’ll stop there. I’d hate to give him any ideas. But this is clearly a priority. It’s one of the six policies he posted immediately after taking office.

As Trump has done all campaign, to demonstrate why we need a “law-and-order” administration, the White House then cherry-picks a year of crime data to paint a portrait of, as Trump put it in his speech today, “American carnage.” Of course, while it’s true that violent crime has gone up over the past two years, the increase was mostly driven by sharp spikes in a handful of large cities. Even with that increase, the overall violent crime rate is about where it was in 2012, and remains near historic lows. (By the way, the violent crime rate in Canada also began a slight increase in 2015, also after a long decline.) One other interesting statistic: Even with the spike in some large cities, of the 11 states with the highest violent crime rates, eight are Republican-led (Alaska, Tennessee, Louisiana, Arkansas, South Carolina, Missouri, Alabama, Florida), most with the kind of pro-police, law-and-order policies Trump supports. (Two of the other three — Nevada and New Mexico — are toss-up states.)

Thanks no doubt in large part to Trump, there is a perception that crime is getting worse. Last year, a Gallup poll found that the percentage of Americans worried about crime was at a 15-year high. But Gallup has been tracking opinions about crime in other ways that are instructive for comparing fear of crime with actual crime.

In the most straightforward question, Gallup asks if Americans think crime in the U.S. gotten better or worse than the previous year. Year after year, most Americans always think things have gotten worse. Even as the crime rate reached historic lows in the late 2000s and early 2010s, 60 percent or more still thought things were getting worse. In the most recent poll, taken last October, the figure was at 70 percent.

But there’s another question that better measures of how crime affects people day to day: . . .

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Written by LeisureGuy

21 January 2017 at 1:50 pm

A criminal-justice nightmare: 32 years in prison without a conviction

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Richard Pérez-Peña reports in the NY Times:

The legal record shows that Jerry Hartfield’s first murder conviction was thrown out on appeal, and for the next 32 years, he was not officially guilty of anything, not sentenced to anything. Yet he spent that time in Texas prisons, in what an appellate court now calls “a criminal justice nightmare.”

He was finally tried and convicted again in 2015, but on Thursday, Mr. Hartfield moved closer to freedom than he has been in decades. A state Court of Appeals ruled that he was not only denied his constitutional right to a speedy trial, but to a degree the court had neither seen nor imagined before; it noted that the important precedents dealt with delays of three years, six years, eight years — not 32.

The three-judge panel dismissed the indictment against Mr. Hartfield, who is developmentally disabled, in effect erasing the recent conviction. But it is still not clear whether, or when, he will get out of prison.

“We are deeply mindful that our conclusion today means that a defendant who may be guilty of murder may go free,” Judge Gina M. Benavides wrote for the Court of Appeals. “However, based on the United States Constitution, it is the only possible remedy.”

All told, Mr. Hartfield, now 60, has spent more than 40 years behind bars for the murder of a bus station ticket clerk.

His case can seem like something out of absurdist fiction: a court ruling ignored or forgotten, an appeal dismissed by a court that agreed with the substance but said it had been filed under the wrong statute, a retrial after most of the evidence had been lost and witnesses had died, and an argument by prosecutors that Mr. Hartfield, himself, was to blame for the delays, and caused them intentionally.

“Once you call this Kafkaesque, you can’t really call anything else Kafkaesque, because there’s nothing else remotely like this,” said David R. Dow of the University of Houston Law Center, one of the lawyers who represented Mr. Hartfield on appeal. “This was the perfect storm of everything that could go wrong with the criminal justice system.”

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Written by LeisureGuy

20 January 2017 at 4:28 pm

Red Justice in a Blue State

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Robert J. Smith reports in Slate:

Here’s a riddle: What state incarcerates a higher percentage of its black population than Alabama, Florida, and Louisiana?

I’ll bet you didn’t guess Oregon.

Indeed, the Beaver State locks up its black citizenry at a rate twice that of Georgia and Mississippi. Oregon also has the second highest rate of youth transferred to adult court after Florida. It is the only state besides Louisiana that allows non-unanimous jury verdicts in criminal cases, and it is the only state besides Texas to require “future dangerousness,” a discredited and scientifically bankrupt jury determination, as a determining factor in sentencing people to death.

How does Oregon, a state that has voted blue in every gubernatorial and presidential election since 1988 and which was one of the first states to legalize marijuana, end up with a criminal justice system that more closely resembles the Deep South than its West Coast neighbors?

The blame lies in significant part with Oregon’s out-of-touch elected prosecutors. These powerful forces within the criminal justice system help to explain the gap between two seemingly incompatible Oregons: one with a governor who has placed a moratorium on executions, and the other whose retrogressive and racially disparate criminal law enforcement policies have led to the seventh highest rate of black imprisonment in the nation.

A prime example of these prosecutors run amok is Josh Marquis, the elected district attorney of Clatsop County and a former president of the powerful Oregon District Attorneys Association. In an era where even conservatives like Newt Gingrich and the Koch brothers are fighting to wean America from its addiction to prisons, Marquis recently called “the claim that mass incarceration is out of control” one of those “urban legends accepted by conservatives and liberals alike.” Back in 2006, Marquis authored a law review article titled “The Myth of Innocence” and wrote in the New York Times that “Americans should be far more worried about the wrongfully freed than the wrongfully convicted.” More recently, he opposed a new law to expand post-conviction access to DNA evidence, legislation that made it easier for people to prove their innocence.

Marquis is a veritable font of absurd positions on criminal justice reform in Oregon.

Both the Oregon State Sheriffs’ Association and the Oregon Association Chiefs of Police support reclassifying offenses involving the possession of a small amount of drugs from felonies to misdemeanors. Josh Marquis opposes the plan.

An Oregon trial court judge concluded that “race and ethnicity was a motivating factor in the passage” of Oregon’s peculiar non-unanimous jury law. The judge expressed “serious concern” about the impact that the law, which passed “during a period of racial tension when the state had seen an explosion of organized racial hatred and the rise of the KKK,” continues to have today. In local coverage of the case, John Hummel, the elected prosecutor for Deschutes County, said that a jury verdict with two dissenting views is one that “we shouldn’t have confidence in.” Yet, Marquis is quoted in the same article in support of non-unanimous jury verdicts.

Josh Marquis is, of course, not the only prosecutor responsible for the stains on Oregon’s justice system. Rather, he is symptomatic of a system that is overly influenced by a narrow band of thuggish prosecutors who wield outsized power both in the Oregon District Attorneys Association and in fanning the flames of fear across the state’s media landscape. Two others warrant similar attention: Bob Hermann, the elected district attorney for Washington County, and John Foote, the elected prosecutor for Clackamas County. . .

Continue reading.

Keep reading. There’s more, and it’s shocking.

Written by LeisureGuy

20 January 2017 at 12:14 pm

The GOP is selective in its admiration of the Constitution: Much love for the Second Amendment, not much for the First and Fourth

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To refresh your memory:

Amendment I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Amendment II

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Amendment IV

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

It’s already obvious that many people do not like the First Amendment at all: they want laws that prevent the building of houses of worship for religions other than their own, they want laws that prohibit or punish speech with which they disagree, and they very much dislike the idea of people peacefully assembling to petition the government for a redress of grievances.

Spencer Woodman in The Intercept has a report of five states attempting to pass legislation that directly opposes the right of peaceful assembly. He writes:

On Saturday, theWomen’s March on Washington will kick off what opponents of the incoming administration hope will be a new era of demonstrations against the Republican agenda. But in some states, nonviolent demonstrating may soon carry increased legal risks — including punishing fines and significant prison terms — for people who participate in protests involving civil disobedience. Over the past few weeks, Republican legislators across the country have quietly introduced a number of proposals to criminalize and discourage peaceful protest.

The proposals, which strengthen or supplement existing laws addressing the blocking or obstructing of traffic, come in response to a string of high-profile highway closures and other actions led by Black Lives Matter activists and opponents of the Dakota Access Pipeline. Republicans reasonably expect an invigorated protest movement during the Trump years.

In North Dakota, for instance, Republicans introduced a bill last week that would allow motorists to run over and kill any protester obstructing a highway as long as a driver does so accidentally. In Minnesota, a bill introduced by Republicans last week seeks to dramatically stiffen fines for freeway protests and would allow prosecutors to seek a full year of jail time for protesters blocking a highway. Republicans in Washington state have proposed a plan to reclassify as a felony civil disobedience protests that are deemed “economic terrorism.” Republicans in Michigan introduced and then last month shelved an anti-picketing law that would increase penalties against protestors and would make it easier for businesses to sue individual protestors for their actions. And in Iowa a Republican lawmaker has pledged to introduce legislation to crack down on highway protests. . .

Continue reading.

Obviously the Fourth Amendment is now a dead letter, with continuous surveillance of the public from a wide variety of government agencies, from the local police department using Stingray technology to listen in on various private conversations to the NSA and its bulk collection (and now sharing) of information gleaned from the Internet and other sources. Moreover, police routinely demand to see the contents of your cellphone (without a warrant) and government officials can seize your computer and cellphone at the border and keep them as long as they want. The Fourth Amendment is over, I think.

Written by LeisureGuy

20 January 2017 at 11:11 am

Why many lawsuits will be filed this coming Monday morning: Trump’s 10 Troubling Deals with Foreign Power-Players

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Can’t depend on Jason Chaffetz, that’s for damn sure.

Derek Kravitz, Al Shaw, and John Kelly report in ProPublica and USA Today:

Incoming President Donald Trump’s business deals span the globe. Trump-branded skyscrapers, golf courses and hotels stretch from Dubai to Azerbaijan to the Philippines.

Government ethics experts have strongly criticized Trump’s refusal to divest ownership of any of his businesses. But they point to his ongoing foreign deals with those connected to power as the most troubling.

“These foreign deals are fertile ground for corruption,” Norman Eisen, the White House chief ethics lawyer under President Obama, told ProPublica. “When there’s a pre-existing relationship, there can be wink, wink, nod, nod, or even a private whisper that turns into a quid pro quo.”

“He has to get rid of his foreign deals,” said Matthew T. Sanderson, an attorney at Caplin & Drysdale who has served as legal counsel on three Republican presidential campaigns.

Trump’s Byzantine business structures and his lack of disclosures — he has released neither his tax returns nor details of his foreign deals — make it difficult to get a full picture of the incoming president’s business relationships. But using government records, Trump’s own local disclosures and press reports, we’ve identified 10 Trump deals in which he has partnered with power players abroad.

We asked the Trump Organization about each of these deals. We’ve included the responses they gave. . . .

Continue reading.

Written by LeisureGuy

19 January 2017 at 4:04 pm

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