The Washington Post recently made an interesting find when it sought the person responsible for recent extreme right actions like the appearance of heavily armed citizens at Gettysburg on Independence Day. Two members of the House Intelligence Committee, Rep. Raja Krishnamoorthi, D-Ill., and Rep. Peter Welch, D-Vt., demanded that government investigate and identify who was behind the Gettysburg hoax and similar false claims in nine other cities this summer. While there has been evidence of extreme right groups fueling violence in the recent protest, the Post found instead Adam Rahuba, a part-time food-delivery driver and supporter of Sen. Bernie Sanders. Rahuba said he supports the ant-fascist movement Antifa, a loosely organized group that I have criticized in the past for its anti-free speech agenda. Rahuba, 38, was trying to make chumps out of the far right but some have suggested possible criminal liability for the hoaxes.
Category: Criminal law
I recently received a letter contesting my statements concerning Attorney General Bill Barr in columns (here and here and here and here) and congressional testimony (here and here). The letter is from Ralph Nader, Lou Fisher, and Bruce Fein. I have known all three signatories for many years and I have the utmost respect for them. They offer detailed and thoughtful disagreements with my past statements and the record of Attorney General Bill Barr. I asked them if they would allow me to share their arguments with the blog and they have agreed to do so. As with the prior posting of Professor Morrison, I strongly encourage you to consider the analysis from three of the most influential minds in Washington.
These are figures who require little introduction. They are well known throughout the world for their contributions to the law and public policy. Ralph Nader is as legendary figure who has fought his entire life for consumer protection, environmental protection and good government. He has run for president repeatedly (indeed I voted for him) and is widely viewed as one of the most influential figures in the world on public policy. Lou Fisher spent four decades at the Congressional Research Service and is widely regarded as one of the most influential figures in the shaping of congressional legislation and policies. He is widely regarded as one of the foremost experts on constitutional and congressional issues. Bruce Fein was a high ranking Justice Department figure in the Reagan Administration and has been one of the most influential conservative voices in print and television for decades. He is known for his independent and principled analysis of legal and constitutional issues.
As I stated in Attorney General Barr’s confirmation, he comes to this position with long-established and robust views of executive privilege and powers. While I have long disagreed with him on many of these issues, I view many of the current controversies to reflect policy and interpretative differences, not ethical or criminal or impeachable misconduct. I do not agree with presumptions made about his improper motivations or designs in carrying out his duties, for a second time, as Attorney General of the United States. Despite my many friends on the other side, my view has not changed. Nevertheless, people of good-faith can disagree and that is precisely what is offered by Messrs. Nader, Fisher, and Fein (sounds like a great law firm!)
Here is their letter for your consideration:
Missouri GOP Sen. Josh Hawley has called upon Attorney General Bill Barr to launch a federal civil rights investigation of the St. Louis couple who wielded guns outside of their house during a protest in their gated community. I have previously written about the possible charges against Mark and Patricia McCloskey and expressed my skepticism over the apparent effort of St. Louis Circuit Attorney Kim Gardner to find a criminal charge. However, Attorney General Barr should decline this request from Sen. Hawley. There is no civil rights violation in this investigation. Indeed, while I thought the charges could be defeated in trial or on appeal, I previously wrote that the vague criminal provisions could be used to bring a charge. The issue turns on how the guns were used. While I find the criminal provisions to be vague and the application in this case to be unwarranted, it is not a civil rights violation to advance such an interpretation of the law.
Continue reading “Sen. Hawley Calls For Federal Civil Rights Probe Over McCloskey Investigation”
One of the most controversial figures selected by Special Counsel Robert Mueller for his investigative team was Andrew Weissmann. While some criticized Weissmann for perceived bias, many of us focused on his record of prosecutorial excess. Now a law professor at New York University, Weissmann appears eager to fulfill both criticisms. After the commutation of Roger Stone, Weissmann called for Stone to be pulled in front of a grand jury. It did not matter that there was no crime under investigation or likely criminal charge based on the use of a presidential power that is virtually absolute. Weissmann seemed to call for the use of the grand jury for a fishing expedition — precisely the type of alleged excessive use of prosecutorial power that he faced at the Justice Department. Weissmann is reportedly writing a book on the investigation with the reported titled “Where Law Ends: Inside the Mueller Investigation.”
Continue reading “Top Mueller Aide Andrew Weissmann Calls For Stone To Be Called Into Grand Jury”
Below is my column in the Hill newspaper on the commutation of the sentence of Roger Stone and the objections from various commentators and politicians that it was an unprecedented abuse of this constitutional power. The political outcry was predictable but it was also accompanied by an ahistorical treatment in Congress and the press. Many leaders lined up to cast the first Stone comment on how it was an unprecedented act despite their own relative silence during past abuses of presidential clemency. Speaker Nancy Pelosi declared that the commutation was “an act of staggering corruption” for someone who “could directly implicate him in criminal misconduct.” House Intelligence Committee Chairman Adam Schiff declared that the commutation left him “nauseous.” Of course, Pelosi, Schiff, and other Democrats seemed to have greater stability and intestinal fortitude after Bill Clinton’s pardoning of his own brother (Roger Clinton), a fugitive Democratic donor (Marc Rich), or his longtime friend (Susan McDougal) who was convicted in an investigation that implicated both Bill and Hillary Clinton. Likewise, Mitt Romney seemed to echo Toobin’s view (below) in declaring this an “unprecedented, historic corruption” when “an American president commutes the sentence of a person convicted by a jury of lying to shield that very president.” However, Romney long heralded his respect and support of President George H.W. Bush despite Bush’s executive clemency actions for six former senior government officials implicated in the Iran-Contra scandal, including former Secretary of Defense Caspar Weinberger. Bush himself was implicated in that scandal and some alleged was protected by their silence. Nevertheless, this Society of Historical Revisionism appears to be expanding with members expressing utter shock at the notion of a president abusing the pardon power. There were no calls for investigations or new legislation from these politicians at the time. So, to paraphrase John 8:7, let he or she “without sin among you,” cast the first Stone criticism.
Here is the column:
Fifty years ago, Ford Motor Company started production on the Pinto, a car that was billed as the be-all, end-all for the automotive industry. The only problem was that the car seemed to burst into flames if it hit a mid- to large-sized squirrel. The Pinto’s combustibility did not stop its advocates from pushing its use until it finally was pulled from the roads. The Pinto came to mind this week with the reappearance of a poorly conceived product from the legal world: the Trump bribery theory. Various legal experts have insisted President Trump could be prosecuted or impeached under bribery laws, including for his dealings with Ukraine. I have written repeatedly that this theory was discredited by controlling case law, and I testified against its use as an article in the House impeachment hearing last year. As Ralph Nader once said about the Chevrolet Corvair, this theory is “unsafe at any speed” on Capitol Hill. The decision to pull out this discredited theory of bribery is just the latest example of choosing combustibility over credibility in legal analysis. The difference is that when unstable automotive products are exposed, they are taken off the road. Unstable legal products just keep rolling along.
House Speaker Nancy Pelosi declined to condemn the destruction of a statue of Christopher Columbus in the city of Baltimore (where she was born and raised) yesterday in the latest example of politicians enabling such mob action with their silence. When asked about a mob pulling down the statue and dumping it in the harbor (with no interference from police), Pelosi simply declared “People will do what they do.” Indeed, they will when leaders refuse to condemn their conduct. Her comment explains why a recently arrested supporter of Antifa declared that they are winning in the campaign to destroy statues and memorials. Update: Maryland Governor Larry Hogan blasted Pelosi for being out of touch with her comments. Rather than pander to the most extreme elements of these protests, Hogan insisted “while efforts towards peaceful change are welcome, there is no place in Maryland for lawlessness, vandalism, and destruction of public property.”
Continue reading ““People Will Do What They Do”: Pelosi Refuses To Condemn Statue Destruction”
I previously discussed on Twitter that Michael Cohen seemed to me to be in violation of the standard obligations of federal prisoners given furloughs during the pandemic when he was seen at a high-end restaurant. His lawyer strongly disagreed that Cohen’s conduct violated the conditions but Cohen has now been taken back into custody according to media reports. This is not the first time that Cohen’s culinary impulses have gotten him into hot water.
We have been discussing protest related charges that raises troubling or novel issues. The charges against two protesters Viet Tran, 21, and Alexandria Dea, 26, are both. They are charged under a little known (and even less used) law barring unauthorized dissemination of intelligence data. The data came in the form of a Des Moines Police Department bulletin that was pulled from the back pocket of a police officer during struggles with protesters.
We previously discussed the arrest of Samantha Shader, 27, and her sister, Darian, 21, in one of the Molotov cocktail attacks on police in New York City. There is now a twist where a third individual is being charged as an accomplice. Samantha Shader reportedly blamed a black male for giving her the explosive. The FBI however has alleged that the accomplice was a friend from upstate New York who is white. At issue is a Bulleit whiskey bottle that Samantha Shader is accused of throwing at a police van on May 30th. The allegations against three African Americans by a self-described social justice activist is a rather unexpected twist in an already bizarre case. It could present an difficult issue for the defense in pre-trial admissibility challenges.
I previously wrote about my concern with the prosecution of rioters for arson under federal rather than state law. Now a new case about of Wisconsin further shows the federalization of these crimes with seemingly no interstate elements. Devonere Johnson, 28, has been charged with extortion after he went into Cooper’s Tavern near the state Capitol building with a megaphone and a bat to demand money and free food and booze in the name of Black Lives Matters. There is no question that his conduct was worthy of a criminal charge but the federal charges again raise concerns over federalism and state police powers.
By Darren Smith, Weekend Contributor
A driver reportedly relying on the “Autopilot” function of a vehicle was cited for driving with criminal negligence after his passenger car struck a legally standing police patrol car. Though anecdotal, I believe this incident demonstrates what I believe to be a legal fatal flaw in the foundational concept for vehicles equipped with autonomous navigation and driving technology–that they can cause either the “driver” or vehicle owner into criminal liability for essentially the passive act of allowing the car control over the journey.
Ars Technica reported this most recent collision where a Massachusetts driver was cited for driving with criminal negligence after his autonomously operating vehicle crashed into the rear end of a patrol car on a traffic stop. Though the officer was outside his SUV at the time of the collision, he suffered minor injuries when his patrol car was pushed forward into the stopped vehicle. State Troopers said the driver of the colliding vehicle was “not paying attention”. The mechanics of the collision showed the officer was lucky to have escaped death.
Continue reading “Driver Using “Autopilot” Technology Criminally Charged After Collision”
We have been discussing the case of Jason Charter, the George Washington University student who is alleged by the government to be the “ringleader” of the attack on the statue of Andrew Jackson near the White House. He is also accused of participating in the destruction of the statue of Confederate leader Albert Pike in Washington on June 19th. This case raises some difficult questions over the admissibility of his political views. However, he may be making that issue easier (and harming his case) with continued comments on an unverified Tweeter account where he continues to support Antifa and claim victory. The public comments raise the possibility of an effort to trigger a politically-infused case like the “Chicago Eight” prosecution after the 1968 Democratic National Convention. These comments have greater value in rallying supporters than building a defense.
There is a truly bizarre criminal case out of South Beach in Miami. Nachem Gross, 72, is charged with aggravated battery for an attack on Gerald Steiglitz, 86, in an elevator. Putting aside the fact that both are elderly, the battery was an effort of Gross to maintain social distancing to avoid Covid-19. The incident was caught on video. The world has gone completely mad.
We recently discussed the release of photos of suspects by the FBI of individuals connected to the attack on the statue of Andrew Jackson outside of the White House. One of those arrested is Jason Charter who is described as the “ringleader.” He is also a George Washington University student and a professed supporter of Antifa. Charter is likely to be a priority prosecution for the Administration. However, his criminal case could raise some challenging issues on admissibility of evidence of his affiliations and political views.
Continue reading “GWU Student Accused Of Leading Attack On Jackson Statue [Updated]”