Later On

A blog written for those whose interests more or less match mine.

Archive for the ‘Law Enforcement’ Category

Has the Campaign Against Drunk Driving Been Successful?

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The short answer is, “No, it has not.” Kevin Drum explains.

Written by LeisureGuy

19 May 2017 at 11:24 am

Ethics Rules Are National Security Rules

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Susan Hennessey writes at Lawfare:

The President-elect has failed to divest from his business holdings, refused to release his tax returns, and insisted that a federal anti-nepotism law won’t bar his children—who themselves retain private business interests—from serving in his White House. Days before scheduled confirmation hearings, the majority of his nominees have failed to complete statutorily-mandated ethics review. It’s for this reason that, over the weekend, former White House ethics counsel (and my Brookings colleague) Norm Eisen noted that the Trump transition is in the midst of an “ethics crisis” that is “unparalleled in modern U.S. presidential history.”

Readers may be wondering what federal ethics law and policy has to do with national security. The answer is a whole lot. Fundamentally, ethics policies governing the Executive and his cabinet are national security protections. As such, it is important that we recognize the national security implications of the incoming Administration’s positions on ethics.

Lawfare’s focus on “hard national security choices” reflects something that is often lost amidst partisan and ideological debates—these choices are difficult. There are more close calls than obvious answers. Many national security decisions reflect a delicate balance of policies, values, and strategy. This means it can be difficult to understand, especially in retrospect, why exactly one choice prevailed over another. In areas in which there are many pros and cons, it can be nearly impossible to identify the existence and effect of improper bias.

Naturally, Republicans and Democrats have different policy views and security priorities. However, both share the common understanding that a President’s decisions must be guided by the best interests of the United States as the Commander-in-Chief understands them. Ethical transparency is critical to national security because it ensures that personal financial interests are not placed before the interests of the country.

Identifying conflicts is the first step in preventing harms. Once a conflict is disclosed and identified, it might be eliminated by either ending the financial relationship or requiring individual recusals. Where that doesn’t occur, the disclosure process allows for the public and other stakeholders to assess a government official’s judgment for indications of bias. The White House and the cabinet are charged with immensely consequential decisions; not infrequently, they determine matters of life and death. The legitimacy of the office of the presidency rests on public faith that the government is placing the interests of the country first.

The demand for adequate ethics disclosure and vetting reflects the national security strategy of—as Reagan put it—“Trust, but verify.” We ask for verification that our government officials are free from undue influence because it goes to the core of basic democratic legitimacy. There should be no questions regarding the purity of the motives of individuals we authorize to place our soldiers, foreign service officers, or intelligence agents in harm’s way. Because of the necessary secrecy that surrounds a great many of these decisions, full vetting and transparency at the outset are critical to ensuring the Executive branch is, in fact, placing country first and also to maintaining basic integrity and legitimacy in the eyes of the people.

This should be the backdrop against which the ethics practices of the current transition are understood.

Recently, the Director of the Office of Government Ethics (OGE) has sent a letter to Congress warning that not all of Trump’s nominees have submitted the paperwork required for the legally-mandated ethics review. A large number of consequential—and controversial—confirmation hearings have been scheduled for Wednesday. OGE cautions this schedule does not allow sufficient time to complete reviews, especially considering the complex financial backgrounds of Trump’s “Billionaire cabinet” and the necessity for highly-detailed reviews of individuals like Exxon Mobil CEO Rex Tillerson. Confirmation hearings are traditionally not scheduled before ethics review is complete, not only because Senators must be fully informed in their votes, but also because the confirmation process serves as important leverage in ensuring full compliance. Once a nominee is Senate-confirmed, there is little incentive for the individual to fully and timely comply with ethics disclosure, especially of potentially controversial matters.

The relationship between ethics and national security is perhaps most important when it comes to the President himself. President-elect Trump’s refusal to divest himself of his business interests invites conflicts, though Trump asserts that the President cannot have legally cognizable conflicts. That is a controversial legal argument, at best, but it also fails to recognize the distinction between a legal conflict and a conflict in fact. Because of his multinational business interests, President Trump will eventually face a decision where the interests of the nation run contrary to his personal financial interests, whatever his interpretation of legislation on conflicts might be. And a Politico poll this morning found that 65% of those polled believed Trump’s business interests will “affect his decision making.”

Taken to its extreme, as a separation of powers argument, Trump’s statement that “the President can’t have a conflict of interest” under the law effectively concludes that the only constraining forces on the President are political and constitutional. But Trump’s practices thwart both political accountability and constitutional constraint. Trump’s failure to release his tax returns makes it impossible for the American people to assess whether his conflicts undermine our collective security and exert political pressure. Moreover, Trump appears inclined to dispute constitutional constraints as well.

The Constitution itself views conflicts of interest, specifically those related to foreign countries, as a national security threat. . .

Continue reading.

Written by LeisureGuy

18 May 2017 at 5:41 pm

Companies Steal $15 Billion From Their Employees Every Year

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Ben Schiller reports in Fast Company:

When employers fail to pay overtime, withhold tips from waitresses and waiters, or misclassify workers as exempt from minimum wage regulations, they’re stealing income from the poorest members of society. “Wage theft,” the collective term for this practice, can take many forms. But it comes down to something simple: bosses stiffing workers out what they are legally owed.

This workplace larceny is worse than you might think. The Economic Policy Institute, a think-tank that investigates labor issues, analyzed records for the 10 most populous states. Looking just at one form of wage theft–failure to pay minimum wages in each state–it documents $8 billion in annual underpayments. Extrapolated across the U.S. as a whole, it calculates a total of $15 billion a year in employer misappropriation, which is more than the value of all the property stolen during robberies, burglaries, and auto thefts across the country.

The report finds 2.4 million workers affected across the ten states: California, Florida, Georgia, Illinois, Michigan, New York, North Carolina, Ohio, Pennsylvania, and Texas. And it says workers suffering minimum wage violations lose an average of $64 per week, almost a quarter of their weekly earnings. An average wage theft victim earns just $10,500 in wages a year–and loses up to $3,300 of that to unscrupulous bosses.

“Property crime is a better understood, more tangible form of crime than wage theft, and federal, state, and local governments spend tremendous resources to combat it,” the report, written by EPI analyst David Cooper and research assistant Teresa Kroeger, says. “In contrast, lawmakers in much of the country allocate little, if any, resources to fighting wage theft, yet the cost of wage theft is at least comparable to–and likely much higher than–the cost of property crime.”

Cooper and Kroeger say that wage theft could be reduced through better enforcement of labor laws, including increasing penalties for violators, protecting workers from retaliation, and improving collective bargaining rights. It notes that the U.S. Department of Labor, which is responsible for investigating minimum violations, is chronically under-staffed. In 2015, its Wage and Hour Division (WHD) employed about the same number of investigators as 70 years ago–about 1000–despite a huge expansion of the economy over that time. The U.S. workforce is about six times larger today (135 million in 2015) compared to the 1940s (22.6 million in 1948).

The Obama Administration expanded the WHD from 700 to 1,000 staff and appointed the first WHD administrator in more than a decade (other appointees had been held up in Senate confirmation battles). David Weil, a professor at Boston University and author of the book The Fissured Workplace: Why Work Became So Bad for So Many and What Can Be Done To Improve It, is credited with stepping up misclassification investigations and helping to prosecute several offenders of labor law. By contrast, President Trump has yet to appoint a WHD administrator (or many other positions at the U.S. Department of Labor). His original choice for Secretary of Labor, Andrew Puzder–a rapid opponent of minimum wage laws–was never confirmed amid domestic abuse allegations. Labor Secretary Alex Acosta, Trump’s second choice, is considered to be more favorable towards labor. But it remains to be seen how independent he’ll be from the White House and whether he builds on the enforcement regime of the last administration. . .

Continue reading.

Written by LeisureGuy

17 May 2017 at 2:54 pm

Another Bomb Drops: Initial Thoughts on Trump Asking Comey to Kill the Flynn Investigation

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Helen Klein Murillo, Jack Goldsmith, Susan Hennessey, Quinta Jurecic, Matthew Kahn, Paul Rosenzweig, and Benjamin Wittes write at Lawfare:

The New York Times is reporting that President Donald Trump asked then-FBI Director James Comey to drop the FBI’s investigation into former National Security Adviser Michael Flynn. The conversation allegedly occurred in a February meeting in the Oval Office, the day after Flynn was removed from his post when it came to light that he had lied about conversations he had during the transition with Russian Ambassador Sergey Kislyak.

The revelation comes barely 24 hours after the Washington Post bombshell yesterday that President Trump had revealed highly classified information to Russian officials during an Oval Office visit.

The Times story describes a memorandum written by Comey immediately after the meeting, recording what was said for posterity. As the Times reports:

Mr. Comey had been in the Oval Office that day with other senior national security officials for a terrorism threat briefing. When the meeting ended, Mr. Trump told those present—including Mr. Pence and Attorney General Jeff Sessions—to leave the room except for Mr. Comey.

Alone in the Oval Office, Mr. Trump began the discussion by condemning leaks to the news media, saying that Mr. Comey should consider putting reporters in prison for publishing classified information, according to one of Mr. Comey’s associates.

Mr. Trump then turned the discussion to Mr. Flynn.

After writing up a memo that outlined the meeting, Mr. Comey shared it with senior F.B.I. officials. Mr. Comey and his aides perceived Mr. Trump’s comments as an effort to influence the investigation, but they decided that they would try to keep the conversation secret — even from the F.B.I. agents working on the Russia investigation — so the details of the conversation would not affect the investigation.
The memo allegedly reports that President Trump said to Director Comey, “I hope you can see your way clear to letting this go, to letting Flynn go. He is a good guy. I hope you can let this go.” Trump reportedly told Comey that Flynn had done nothing wrong.

Significantly, the Times reports that not only did Comey detail this exchange in a contemporaneous memo, but also that “Mr. Comey created similar memos—including some that are classified—about every phone call and meeting he had with the president.” This was “part of a paper trail Mr. Comey created documenting what he perceived as the president’s improper efforts to influence an ongoing investigation.”

The White House has denied Comey’s account:

In a statement, the White House denied the version of events in the memo.

“While the president has repeatedly expressed his view that General Flynn is a decent man who served and protected our country, the president has never asked Mr. Comey or anyone else to end any investigation, including any investigation involving General Flynn,” the statement said. “The president has the utmost respect for our law enforcement agencies, and all investigations. This is not a truthful or accurate portrayal of the conversation between the president and Mr. Comey.”
The most immediate legal question is whether the President’s conduct amounts to obstruction of justice, either on its own or in combination with other actions. Lawfare writers discussed the question of obstruction of justice in some detail following the firing of Comey last week.

It is important to remember that the Times story contains only snippets of the reported Comey memo, so the analysis below is thus necessarily preliminary, based on the limited facts we have access to at this point. Much remains unknown and the specific facts that will emerge in the days to come matter a great deal.

Helen Murillo explained the basic elements of obstruction as they might apply to Comey’s firing:

Under 18 U.S.C. § 1505, a felony offense is committed by anyone who “corruptly, or by threats or force, or by any threatening letter or communication influences, obstructs, or impedes or endeavors to influence, obstruct, or impede the due and proper administration of the law under which any pending proceeding is being had before any department or agency of the United States, or the due and proper exercise of the power of inquiry under which any inquiry or investigation in being had by either House, or any committee of either House or any joint committee of the Congress.”

An accompanying code section, 18 U.S.C. § 1515(b), defines “corruptly” as “acting with an improper purpose, personally or by influencing another, including making a false or misleading statement, or withholding, concealing, altering, or destroying a document or other information” (emphasis added). This is where obstruction of justice intersects with the false statements law. If you knowingly and willfully make a false statement of material fact in a federal government proceeding, you’ve potentially violated § 1001, and when you add an objective to influence, obstruct, or impede an investigation, you’ve now possibly violated § 1505 as well. Perjury can intersect with obstruction of justice in the same way.

Under the statute, a “proceeding” can be an investigation. Section 1503 criminalizes the same conduct in judicial proceedings. So obstruction during an investigation might violate § 1505, while if that same investigation leads to a criminal prosecution, obstruction during the prosecution itself would violate § 1503. The individual also has to know that a proceeding is happening in order to violate the statute, and must have the intent to obstruct—that is, act with the purpose of obstructing, even if they don’t succeed.
Obstruction convictions are difficult to obtain. Despite broad statutory language, to obtain a criminal conviction, the government must demonstrate an attempt to “influence, obstruct, or impede” the administration of the law in a pending proceeding. As cited in the prior piece, the U.S. Attorneys’ Manual explains the requirement of proof of three elements: “(1) there was a proceeding pending before a department or agency of the United States; (2) the defendant knew of or had a reasonably founded belief that the proceeding was pending; and (3) the defendant corruptly endeavored to influence, obstruct, or impede the due and proper administration of the law under which the proceeding was pending.”

Here, the first two elements are abundantly clear. Assuming the Times account is correct, there was clearly an investigation, and Trump clearly knew about it. Notably, fifteen days earlier, then-Acting Attorney General Sally Yates had sat down with White House Counsel Don McGahn and informed him of her concerns over Flynn’s connections with Russian officials—including the fact that Flynn had been interviewed by the FBI. According to White House Press Secretary Sean Spicer, McGahn briefed the President and “a small group of senior advisors” following his conversations with Yates.

As Murillo wrote in the prior piece, the third element of an obstruction charge is the hardest to prove, because it depends on showing an improper motive. A criminal case would require proving that Trump acted corruptly with the specific intent of interfering with the investigation. That’s very hard when you’re dealing with the firing of an FBI director, a subject about which the President may have said all kinds of contrary things. Proving his precise state of mind beyond a reasonable doubt might be very tricky.

On the other hand, in this instance there’s at least prima facie evidence that would tend to support inferences of obstruction. According to the memo, . . .

Continue reading.

Written by LeisureGuy

17 May 2017 at 10:06 am

Comey may have gotten his man

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Jennifer Rubin has a very good column, well worth reading. In the column she quotes Chuck Schumer::

Senate Minority Leader Charles E. Schumer (D-N.Y.) was somber on the floor of the Senate. “In a week full of revelation after revelation, on a day when we thought things couldn’t get any worse, they have.” He continued, “I was shaken by the report in the New York Times that alleged that the president tried to shut down an active FBI investigation into a close political associate. And we are only one day removed from stunning allegations that the president may have divulged classified information to a known adversary.” He warned, “Concerns about our national security, the rule of law, the independence of our nation’s highest law enforcement agencies are mounting. The country is being tested in unprecedented ways. I say to all of my colleagues in the Senate: History is watching.”

Earlier in the column Rubin writes:

One is tempted to marvel at the sheer stupidity of Trump, who somehow thought he could not only fire but humiliate the FBI director who was investigating him and his administration with no consequence. But Trump has always been Trump’s greatest liability — the hubris, the ignorance, the impulsiveness.

Written by LeisureGuy

16 May 2017 at 4:38 pm

Wow: Comey Memo Says Trump Asked Him to End Flynn Investigation

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This seems to me to suggest strongly that the FBI is going to find some incriminating (as in “criminal”) behavior, and Trump was desperate to head it off, which makes sense (given Trump’s obvious narcissism) only if stopping the investigation benefits Trump himself. I would guess that he is guilty (and knows it) of some serioous offenses.

If the GOP Congress continues to tie themselves to him, they are as stupid as I’ve often thought them to be.

Here’s the report.

From the report:

The White House has repeatedly crossed lines that other administrations have been reluctant to cross when discussing politically charged criminal investigations. Mr. Trump has disparaged the ongoing F.B.I. investigation as a hoax and called for an investigation into his political rivals. His representatives have taken the unusual step of declaring no need for a special prosecutor to investigate the president’s associates. [Which sounds to me like we need a special prosecutor stat. = LG]

The Oval Office meeting occurred a little more than two weeks after Mr. Trump summoned Mr. Comey to the White House for a lengthy, one-on-one dinner in the residence. At that dinner, on Jan. 27, Mr. Trump asked Mr. Comey at least two times for a pledge of loyalty — which Mr. Comey declined, according to one of Mr. Comey’s associates.

Written by LeisureGuy

16 May 2017 at 2:50 pm

“My Family’s Slave”

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Jason Kottke writes:

When Alex Tizon was a small child in the 60s, he moved with his family from the Phillipines to the US along with the family’s domestic servant, Lola. It was not until Tizon was nearly a teenager that he realized that Lola was not employed as a servant by his parents…she was a slave.

Her name was Eudocia Tomas Pulido. We called her Lola. She was 4 foot 11, with mocha-brown skin and almond eyes that I can still see looking into mine — my first memory. She was 18 years old when my grandfather gave her to my mother as a gift, and when my family moved to the United States, we brought her with us. No other word but slave encompassed the life she lived. Her days began before everyone else woke and ended after we went to bed. She prepared three meals a day, cleaned the house, waited on my parents, and took care of my four siblings and me. My parents never paid her, and they scolded her constantly. She wasn’t kept in leg irons, but she might as well have been. So many nights, on my way to the bathroom, I’d spot her sleeping in a corner, slumped against a mound of laundry, her fingers clutching a garment she was in the middle of folding.

An incredible and incredibly disturbing story. Heartbreaking, all the more because this sort of thing is probably more common than anyone realizes.

Written by LeisureGuy

16 May 2017 at 11:34 am

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