Category: Congress

Congress, Media, Politics

Obama Administration Moves To Sharply Curtail Authority Of Government Watchdogs

President_Barack_Obama600px-US-DeptOfJustice-Seal.svg DOJThe Obama Administration has been accused by public interest groups of being one of the most hostile administration toward whistleblowers since the Nixon Administration. Not only whistleblowers but reporters have been subject to abusive investigations and crackdowns under President Obama. Now, that record has taken an even more dangerous turn. The Justice Department is facing bipartisan criticism after it moved to restrict access of inspectors general to documents needed to ferret out corrupt and abusive practices. The Office of Legal Counsel (OLC) has issued a controversial 68-page memo that says that the department’s inspector general would be required to get permission from the agencies it is investigating to obtain wire taps, grand jury testimonies, and credit information.

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Congress, Criminal law, Justice, Media, Politics, Society

Clinton: “Pretty Clear” No Emails Were Classified Despite Contrary Findings Of Inspector General

225px-Hillary_Clinton_official_Secretary_of_State_portrait_cropDespite the determination of investigators at the State Department and intelligence agencies that Hillary Clinton did use her personal email system to handle confirmed classified information (and potentially compromised “hundreds of classified emails”), Clinton dismissed such allegations and assured the public that it is “pretty clear” that there was no classified information on her personal email system — a system that she used rather than the secure State Department system.

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Congress, Constitutional Law, Courts, Criminal law, Free Speech, Media, Military, Politics, Society

Wesley Clark Calls For New American Internment Camps

220px-General_Wesley_Clark_official_photograph,_editedRetired general and former Democratic presidential candidate Wesley Clark has caused a stir with an interview with MSNBC in which he appeared to call for the establishment of World War II-style internment camps to be revived for “disloyal Americans.” Clark used the infamous American internment camps for Japanese, German, and Italian Americans as a model: “if someone supported Nazi Germany at the expense of the United States, we didn’t say that was freedom of speech, we put him in a camp, they were prisoners of war.”

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Congress, Constitutional Law, Courts, Criminal law, Science, Society

Federal Court Orders DNA Testing In Rape Case Over Objections From Obama Administration

200px-US-CourtOfAppeals-9thCircuit-Seal.svgdepartment-of-justice-logo1The Justice Department has lost a major case where it sought to bar efforts to determine if a convicted rapist is in fact innocent. The Obama Administration argued in United States v. Watson that Bill Watson should not be able to use a new DNA test that was not available when he was convicted of a rape in 2006. Despite dozens of cases where convicted individuals were proven innocent, the Obama Administration fought to prevent the use of this test even though the Innocence Project offered to shoulder all of the costs. The position of the Justice Department was inimical to the values of due process and the rule of law, in my view. The United States Court of Appeal for the Ninth Circuit rejected the highly technical claims that neither Watson nor the court should knew the true identity of source of key evidence found at the crime scene.

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Congress, Constitutional Law, Courts, Media, Politics, Society

Federal Court Upholds Decision Stripping Redskins Of Trademark Protection

350px-Washington_Redskins_logo.svgThe Redskins lost a major challenge this week to the cancellation of the their trademark protection by the Patent and Trademark Office. I have previously written about my disagreement with the U.S. Patent and Trademark Office decision to rescind federal trademark protections for the Redskins as a racially disparaging name as well as the underlying law used to strip the team of its trademark protection. The law allows for a small administrative office to effectively dictate the outcome of a long simmering societal debate over the team name. More importantly, the standard for determining what names or words are disparaging remains dangerously undefined with striking contradictions as we have previously discussed in permitted and disallowed trademarks.

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Columns, Congress, Constitutional Law, Courts, Free Speech, International, Media, Politics, Religion, Society, Supreme Court

OBERGEFELL AND THE RIGHT TO DIGNITY

Supreme Court Below is my column today in the Washington Post on the ruling in Obergefell on the basis for the Court’s ruling in favor of same-sex marriage. Due to limitations on space, I could not go into great depth in the opinion which primarily dealt with the notion of the “right to dignity.” The Court did not pursue an equal protection analysis beyond the following highly generalized statement:

The right of same-sex couples to marry that is part of the liberty promised by the Fourteenth Amendment is derived, too, from that Amendment’s guarantee of the equal protection of the laws. The Due Process Clause and the Equal Protection Clause are connected in a profound way, though they set forth independent principles. Rights implicit in liberty and rights secured by equal protection may rest on different precepts and are not always coextensive, yet in some instances each may be instructive as to the meaning and reach of the other. In any particular case one Clause may be thought to capture the essence of the right in a more accurate and comprehensive way,even as the two Clauses may converge in the identification and definition of the right.

Since the Court did not substantially address whether homosexuals are a protected class or the other Equal Protection line of cases, the opinion appears to craft a right around the inherent right of self-expression and dignity in intimate affairs. That is very appealing to many in the expansion of due process concepts, but the column explores what it portends for future rights.

Here is the Sunday column:

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Congress, Environment, Free Speech, International, Politics, Religion, Science, Society

Pope Issues Rare Encyclical On Climate Change That Demands Action To Curtail Carbon Emissions To Save Humanity

120px-Pope_Francis_in_March_2013_(cropped)earth-screensaver_largeAs widely rumored, Pope Francis has issued a historic papal encyclical that agrees with the vast majority of scientists that global warming is real, largely caused by mankind, and threatens the very future of humanity. He has called for emergency action to curtail carbon emissions by reducing fossil fuels and developing renewables.

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Columns, Congress, Constitutional Law, Courts, Criminal law, Free Speech, Media, Politics, Society

ELONIS AND THE NEAR MISS FOR INTERNET FREE SPEECH

Supreme CourtBelow is my column today in USA Today on the decision of the Supreme Court to reject the Obama Administation’s argument for a low standard in criminalizing speech on the Internet and other forums. The Court did not have to directly deal with the free speech implications of the case since it ruled on the standard for criminalization. The Court rejected the lowest standard of a reasonable person in establishing a criminal threat. However, with the remand, the issue may come back to the Court under another effort to adopt an alternative standard of recklessness.

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Congress, Courts, Criminal law, Free Speech, International, Justice, Lawyering, Media, Politics, Society, Uncategorized

Bankers Make a Mockery of the Law, and No One Goes to Jail

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Respectfully submitted by Lawrence E. Rafferty (rafflaw)-Weekend Contibutor

It has happened again.  Several big banks have been caught with their hands in the cookie jar and are paying billions in fines for their admitted transgressions.

“On Wednesday, four large global banks — Citigroup, JPMorgan Chase, Barclays and Royal Bank of Scotland — pleaded guilty to a series of federal crimes over a scheme to manipulate the value of the world’s currencies. The Justice Department accused the banks of collusion in one of the largest and yet least regulated markets, noting that at one bank one trader remarked “the less competition the better.”

That lack of oversight, coupled with the pressure to squeeze profits from a relatively middling business, set the stage for this scandal, one that unfolded nearly every day for five years. The crimes described on Wednesday also painted the portrait of something more systemic: a Wall Street culture that enabled many big banks to break the law even after years of regulatory black marks after the crisis.” New York Times Continue reading “Bankers Make a Mockery of the Law, and No One Goes to Jail” →

Congress, Criminal law, Politics

Former House Speaker Hastert Indicted

220px-Dennis_Hastert_109th_pictorial_photoThe details on the indictment of former U.S. House Speaker Dennis Hastert, 73, have remained hazy with some notable gaps in the underlying criminal enterprise alleged in the complaint. The theory is that Hastert was paying millions to a blackmailer and tried to hide the payment through “structuring” of withdrawing less than $10,000 to avoid reporting to the federal government. What is interesting however is that the underlying alleged blackmailer has not been charged. There is also the question of the subject of the earlier “misconduct” and whether it could be charged. Some offenses like child molestation can be charged many years after the fact. Hastert was indicted on two counts for charged with lying to the F.B.I. and the structuring of withdrawals, both carrying a maximum penalty of five years in prison and a $250,000 fine.

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Congress, Constitutional Law, Courts, Politics, Society

FEDERAL COURT HEARS SEPARATION OF POWERS CHALLENGE

800px-Capitol_Building_Full_ViewThe hearing on the Administration’s motion to dismiss the House challenge was heard yesterday in Washington, D.C. as reported widely in the media. (Wall Street Journal, NBC, Daily Mail, Rollcall, New York Times,AP, The motion is now under advisement and the parties will wait for a decision on whether the House can be heard on the merits of this historic challenge. If the Court rules against the motion, the parties will then be able to present their arguments on the merits of the constitutional challenge. If the Court rules for the motion, the case can proceed to the United States Court of Appeals for the District of Columbia for review. (Thanks to Claire Duggan for the photographs)

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Congress, Constitutional Law, Courts, Lawyering, Politics, Society, Supreme Court

FEDERAL COURT TO HEAR HISTORIC CHALLENGE OVER SEPARATION OF POWERS

220px-Meade_and_Prettyman_CourthouseAt 10 a.m. tomorrow morning, Judge Rosemary M. Collyer of the U.S. District Court for the District of Columbia will hear argument on the motion to dismiss filed by the defendants in U.S. House of Representatives v. Burwell, et al., No. 1:14-cv-01967 (D.D.C.). The defendants are the Departments of Health and Human Services and Treasury, and the secretaries of those two executive branch agencies. The Administration is seeking to prevent the Court from reaching the merits of this historic case, which was authorized by an affirmative vote of the entire House of Representatives on July 30, 2014, and which the House filed for the purpose of protecting our constitutional structure.

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Congress, Constitutional Law, Courts, Criminal law, Media, Politics

NSA Now Claims DNI Director Clapper Merely Forgot About Massive Surveillance System Targeting Millions of Citizens

Robert-Litt220px-James_R._Clapper_official_portraitThe National Security Agency is still struggling to explain what many denounced as the uncharged act of perjury by Director of National Intelligence James Clapper in denying the existence of the secret NSA surveillance program targeting the communications of all Americans. If you recall, the first explanation by Clapper was that his denial was an intentional act to pick the “the least untruthful” statement to answer the question. Then, National Intelligence general counsel Robert Litt (left) insisted that Clapper “misunderstood” the question. Now, Litt is changing spins and saying that Clapper merely forgot about the massive surveillance system. It was not only massive but recently declared illegal, as some of us have long maintained. It is the latest chapter in America’s Animal Farm as average citizens are criminally charged with small discrepancies in statements to investigators while people like Clapper and David Petraeus and Sandy Berger are protected from serious repercussions for alleged criminal acts.

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Congress, Constitutional Law, Courts, Criminal law, Free Speech, International, Justice, Lawyering, Media, Politics, Science, Society

Is The Cell Phone Kill Switch in the Wrong Hands?

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Respectfully submitted by Lawrence E. Rafferty (rafflaw)-Weekend Contributor

You may not have heard of it before, but the government has the ability to shut off cell phone service at any time, under the guise of National Security.  The Department of Homeland Security has an operating procedure known as Standard Operating Procedure 303( SOP 303) and it has been labeled as the cell phone “kill switch”.

I knew very little about the “kill switch” before today, but according to a recent Al Jezeera America article, the kill switch authority is being currently debated in Federal court. Continue reading “Is The Cell Phone Kill Switch in the Wrong Hands?” →

Congress, Constitutional Law, Media, Politics, Society

Asian American Band Granted Appellate Hearing On Denial Of Trademark Of Its Name As Racially Disparaging

textonlyI have previously written about my disagreement with the U.S. Patent and Trademark Office decision to rescind federal trademark protections for the Redskins as a racially disparaging name. That case is still being appealed but a new case may well answer some of the question raised in the prior column. An Asian American rock band called “the Slants” has appealed a decision to deny it trademark protection — allowing the question to be heard by the U.S. Court of Appeals for the Federal Circuit. A panel previously upheld the denial in In re Simon Shiao Tam, 2015 U.S. App. LEXIS 6430.

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