There is an interesting hearing to be held in Minneapolis where a court will decide whether a new trial is warranted for Michael Smith, who has a record of offenses including fourth-degree assault convictions in 2005 and 2006. He is challenging his conviction four years ago after two jurors have stated that their votes were swayed by another juror calling him a “banger from the hood.” While statements of prosecutors are often the basis for post-conviction appeals, this is a statement from other jurors in deliberations that are rarely the subject of such detailed review.
Category: Criminal law
Glen Alveris has a curious way of impressing a girl. He first shot an innocent woman walking her dog to impress his girlfriend with how “crazy” he was and then stabbed the girlfriend when we was clearly not impressed enough. He is likely to impress the heck out of a jury in New Orleans.
The testimony of Deputy FBI Director Andrew McCabe appears to have gone long but came up short on details. According to sources on the Committee, McCabe stated that he could not recall critical details on the famous dossier that was funded by the Clinton campaign and the Democratic National Committee. The dossier contained information given to a former British spy by Russian government and other sources, including salacious details against then candidate Donald Trump. I have repeatedly stated that I do not agree that the current facts warrant the calls for the firing of McCabe. However, some of the gaps in his testimony are likely to trigger a new round of subpoenas to dive deeper into these issues.
Continue reading “McCabe Testimony Triggers New Round Of Congressional Subpoenas”
President Donald Trump recently entered into the national debate over the NFL protests by criticizing football players taking a knee before games during the national anthem. Some were enraged and called for his impeachment — a call that I previously discussed as unfounded and dangerous. I saw no reason why the President was out of line in giving his opinion on the controversy. There is however an even more pressing matter involving an American professional athlete that would warrant a strong and public statement from President Trump. He is New York Knicks player Enes Kanter who is the subject of an abusive charge in Turkey for allegedly insulting its blood-soaked authoritarian leader President Recep Tayyip Erdogan. President Trump should publicly support Kanter and his right to exercise free speech — a right that Erdogan has curtailed in Turkey in his crackdown on dissidents and journalists alike.
Below is my column in The Hill Newspaper on the email seizure by Special Counsel Robert Mueller from the General Services Administration. As discussed yesterday, many supporters of Mueller are not contesting that this material did not constitute agency records or property, but rather that there was some type of express or implied waiver of privacy and confidentiality. While I consider this an ambiguous area, I obviously disagree with such dismissive positions.
Here is the column:
Yesterday, the Hill posted a column discussing serious legal concerns raised the seizure of transition team emails by Special Counsel Robert Mueller. While the privacy dangers would seem obvious, many dismissed such concerns with a type of .gov defense. The arguement goes something like this: since the transition team used a government address and server (with a “ptt.gov” address), they had no expectation of privacy (or presumably privileges) in the contents of their communications. In another example of rage overcoming reason, this view is being espoused with little concern for its implications for the future.
The overwhelming desire of some to see the prosecution of President Trump has created a strange alliance of some liberals with prosecutors in supporting warrantless searches and heavy-handed tactics. There is palpable attitude that “no cost is too great” to remove Trump, even at the cost privacy or constitutional protections. This week, Minority Leader Charles Schumer went to the floor dismiss concerns raised about Mueller’s tactics as “nothing more than propaganda and disinformation to try and turn the public’s attention away from the real investigation.”
This however is a question of means not ends. I believe Mueller had a legitimate interest in some of these emails and could have likely obtained most them through a court. However, there is no indication that a court order was ever secured by Mueller or demanded by GSA.
Transition records do not constitute agency or presidential material. Commentators have avoided this threshold issue by adopting the secondary position that there was some form of waiver – either express or implied – in the use of the GSA and its computer system. Former federal prosecutor Jeffrey Cramer dismissed any legal or privacy concerns on this basis in declaring: “This is not a problem. The server owner, in this case GSA, properly has the emails and can turn them over if there was a subpoena or court order.” The problem is that there is no record of a subpoena or court order of any kind – only a demand letter following express objections from the transition team that the emails contained privilege and confidential information. Moreover, even if there were an order, there remain questions of whether it should have been issued without greater protection for claims of privileged material.
Express Waiver
The express waiver argument was made by GSA attorney, Lenny Loewentritt. Loewentritt told Buzzfeed that there are disclaimers in the memorandum of understanding signed with the GSA so that “no expectation of privacy can be assumed.” Specifically, he said that the transition team knew that such material could be audited and monitored. However, that does not mean that communications can be reviewed for their content or turned without a court order. The same MOU reinforces that the GSA would delete “all data on [computing] devices” used by the transition team. Indeed, the transition counsel noted that they were assured in the MOU with the Obama Administration that it would “protect the confidentiality of transition information made available to the Government.”
Loewentritt also stressed that the GSA’s Rules of Behavior for Handling Personally Identifiable Information state that “a system manager may disclose your record without your consent under the Privacy Act when the disclosure is to a US law enforcement agency or instrumentality for a civil or criminal law enforcement purpose.” Again, however, that only means that, as the custodian of records, GSA can be required to turn over material. The possible compelled release of information does not mean that citizens have no privacy interests or privileges. For example, the disclaimer mentions civil litigation. Is Loewentritt suggesting that the GSA is free to turn over transition documents when a private litigant simply sends a compelling letter of need?
Implied Waiver
Loewentritt and others have suggested that the use of a government email address should have been sufficient notice that were no protections under privacy or the Fourth Amendment – at least any protections requiring a court order. Under that standard, there is a virtually complete waiver of privacy and Fourth Amendment protections by individuals or organizations when using a .gov or other government address – a position that would be as daft as it would be dangerous. When I have represented government employees, my communications to them on government devices are still given protection.
Loewentritt and others seem willing to boldly go where even the United States Supreme Court feared to tread. In 2010, the Supreme Court considered whether public employees have an expectation of privacy in text messages sent on government devices in City of Ontario v. Quon, 560 U.S. 746 (2010). The lower courts found that employees did indeed have such an expectation even though they were barred from using the devices for anything other than incidental personal use. Note this case did not involve private parties (like transition officials) or constitutional privilege concerns (over confidential transition communications). Just personal text messages by employees. Nevertheless, the Court opted for a “prudent” and “cautious” approach in refusing to reject (as the government asked) the privacy claims of such employees. Instead, it found an exception to such privacy concerns due to the fact that the agency looked at the messages for a “noninvestigatory work-related purpose.” (It was trying to determine if the monthly character limit was sufficient for employees).
When courts have faced government searches of agency devices, even for actual agency employees, they have applied a multifactored test to determine if the search was “justified at its inception” and reasonable in scope. The common exception for a warrantless search is for a “noninvestigatory, work-related purpose” or for the “investigation of work-related misconduct.” O’Connor v. Ortega, 480 U.S. 709, 725–26 (1987). In other words, the assumption is the opposite of the one suggested by Loewentritt and the GSA.
Trump for America (which is the transition entity) is a private non-profit entity. During the Obama Administration, the National Archives assured Obama officials that transition records were private and not governmental records. Moreover, they were required to use the GSA system as part of the transition process.
In the end, none of this means that the emails taken by Mueller’s team will “taint” the investigation or doom any later prosecutions. Nor does it warrant the equally reckless calls for Mueller’s firing as Special Counsel. Rather, this is an area of ambiguity with significant privacy and constitutional concerns. If this was a warrantless seizure, it was a risk not worth taking for Mueller or the country.
The video below has left me speechless as a mother first leaves a young child to beat down another woman in the mall and then attacks her again while pushing the stroller (then abandoning the child again to continue the fight). The fight was over claims made in a double murder homicide in Florida.
Continue reading “Toddler Abandoned As Adults Have Melee in Florida Mall”
For two years, Liam Allan, 22, lived in fear after he was accused of 12 rapes and assaults by a woman. He was facing 20 in jail and put his life on hold as he insisted that he was innocent. What he did not know until recently was the police in England had possession of 40,000 messages from his accuser, including messages asking him for “casual sex.” Three days after the disclosure, all charges were dropped. Allan is now suing the Metropolitan Police.
We recently discussed the outrage over a woman getting four-months probation for laughing at the torture of a defenseless, disabled man and posting this crime on social media. We have yet another absurd sentencing.
In Wisconsin, Richard A. Root, 21, was given six months in jail and seven years of probation after beating his 2-month-old daughter. He broke more than 20 of the infant’s bones and caused bleeding in her brain. Six months.
We have another stolen valor controversy this week, a subject that I have written a great deal about in prior postings and columns. Frauds will often go to extraordinary lengths to construct a false record and appearance. Many are pathetically transparent. Papotia Reginald Wright is one of the latter group. He pretended to be a green beret but did not have the energy apparently to get an actually green beret.
Continue reading “Brooklyn Man Claims To Be Green Beret: Can You Spot The Flaw?”
We have often discussed how felons guilty of cruelty to animals are often given light sentences. An exception is Hykeem Dontavious Jabar Golson, who will rightfully spend years in jail for burning his girlfriend’s dog alive in a church parking lot. Golson was was sentenced to five years in prison for the 2016 crime (in addition to a $5000 fine). He received the maximum sentence under South Carolina law — only the second person to ever receive the maximum sentence.
Lal Singh Arya, 53, is the minister for happiness in the central Indian state of Madhya Pradesh. He is also a suspect in a murder and is now believed to be on the lam as police search for him. The victim is an opposition politician who was killed in 2009.
Continue reading “Indian Minister of Happiness Sought As Murder Suspect”
A Connecticut man is recovering after he was thrown off a bridge on Thanksgiving after he intervened to protect a woman in an argument with her boyfriend. The victim and his friend told Gregory Rottjer (left) to “chill out” and allegedly Rottjer and his friend Matthew Dorso became enraged. Rottjer then threw the Good Samaritan off the Derby-Shelton Bridge — a 45 foot plunge that almost killed him. What is unbelievable is that the woman, Jennifer Hannum, was also charged in the case in resisting one of the officers who came to find her boyfriend.
Senate Minority Leader Chuck Schumer (D-N.Y.) has rightfully filed a police complaint over a fake sexual harassment complaint against him, including the forged signature of a former aide. This is a vicious attack on Schumer that vividly illustrates the hatefilled madness that has taken so many citizens on both the left and the right in today’s poisonous political environment. I am heartened by the filing. Finding the culprit or culprits behind this fake complaint would take a small but meaningful step to bringing a element of responsibility back to our political discourse.
Continue reading “Schumer Files Real Complaint Over False Sexual Harassment Complaint”
Below is my column in the Hill Newspaper on the surprising move of the Republican House of Representatives toward a contempt action against officials in the Trump Administration. While some have called for the appointment of a second special counsel to investigate the dossier controversy, I continue to question the necessity of such an appointment even though I believe that there is a need for an investigation. I believe that Congress can fully investigate the allegations of political influence in the federal investigation into the matter. However, that will only be the case if congressional committees can secure the information that they require (and are entitled to) as part of their oversight authority. Any such effort will have to deal with a long history of contempt by the Justice Department for congressional oversight investigations.
Here is the column: