For the last year, I have been criticizing over-wrought and at times irresponsible legal analysis proclaiming “slam dunk” criminal cases and long-sought “smoking gun” discovery sealing the fate of President Donald Trump or his close associates. This includes months in which legal analysts referred to the crime of collusion despite there being no such crime. Unfortunately, this trend continues with the recent interview of Jill Wine-Banks, a former Watergate prosecutor, who told MSNBC that Trump’s recent tweets can constitute “obstruction of justice, witness intimidation, and it’s obstructing justice by saying to agents you better not dig too deep, you better not find anything because I will attack you.” I can see little support for such a position in the criminal code or past cases.
Category: Society
Many of us are excited to see the new biopic “Darkest Hour” on the towering historical figure of Winston Churchill. What is less welcomed is a truly ridiculous warning added to the move that “the depictions of tobacco smoking are based solely on artistic consideration.” It is not even clear what smoking “based solely on artistic consideration” means but is clearly meant as a gesture to those who would immediately run from the film in shock at the scene of a twentieth century leader smoking. It turns out that while, “History is written by the victors,” it is rewritten by cringing Hollywood producers.
Continue reading “Churchill Biopic Features Warning Against Second Hard Smoke”
Best wishes to everyone celebrating Christmas.
I am in Chicago with the family for Christmas with my 90-year-old mother Angela. We got our wish this year for a white Christmas with a few inches on Christmas Eve. The Chicago Bears completed the perfect Christmas by winning on Sunday. Even though the Browns are the worst team in the country without a single win this year, none of us made any assumptions given the record this year.
Below is my column in the Hill Newspaper on an annual list of Christmas torts and mishaps. Santas feature prominently this year.
Continue reading “Christmas Torts: The 2018 Listing Of Holiday Mishaps and Madness”
Cornell University’s Black Students United presented the University president with a list of demands with one particularly surprising addition: a call to reduce the admission of African and Caribbean students in favor of African Americans. The demand would define true African American students as those who are at least second generation Americans.
The University of Virginia has reversed a decision of VA student council to refuse to recognize a conservative student organization because it catered to conservative students. This absurd decision was based, according to Ty Zirkle, UVA student council’s vice president for organizations, on a strained reading of state law. The decision was in sharp contrast to other groups which cater to shared viewpoints. The concern should be with the selective application of this perceived rule by the student council.
Despite the threat that the Administration was “taking names” of any country that voted to condemn the move of the United States embassy to Jerusalem, Some 128 countries voted to do so. Only nine voted “no” with another 35 countries abstaining, including Mexico and Canada. Our allies of France and England joined in voting for the resolution. The nine negative votes came from US, Israel, Guatemala, Honduras, the Marshall Islands, Micronesia, Nauru, Palau and Togo.
The Indiana Attorney General is investigating an Indiana hotel and is accused of a truly outrageous practice of charging customers hundreds of dollars when they write bad reviews of the hotel. Katrina Arthus and her husband were hit with a $350 fine when they panned the Abbey Inn & Suites on a social media site. They complained about the room smelling of sewage and the sheets were dirty. That led to the fine for disclosing their opinions and later a lawsuit by Arthus.
Continue reading “Indiana Hotel Charges Guests $350 For Writing Bad Review”
There is an interesting Gallup poll out that shows that, after an active speaking tour promoting her book and her retrospective on her loss to Donald Trump, Hillary Clinton has actually become even more unpopular. We have previously noted that polls have shown Trump would still beat Clinton in a head-to-head election (and here). While Trump is also facing declining polls, he is at the same level or even higher than Clinton. Clinton posted the lowest polling numbers yet with only 36% popularity and an unfavorable rating of 61%. Polls are showing Trump at 38 percent. While a new poll shows that half of people feel Trump should resign, it is clear that they want Clinton even less — the very same position held by many in the campaign.
Continue reading “Clinton Hits Record Low In Poll With 61 Percent Unpopularity”
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 previously discussed a controversy involving porn found on the computer of Alex Kozinski, then the Chief Judge of the United States Court of Appeals for the Ninth Circuit. He was later cleared of misconduct but admonished over his conduct. Recently, however, Kozinski was accused of sexual harassment and improper touchings by over nine more women. Formal charges were brought against Kozinski and an investigation launched. Kozinski has now resigned from the court. It was the correct decision for himself, the alleged victims, and the court given these very serious and disturbing allegations from former clerks. The sheer number of women and the pattern described in their accounts made the allegations quite compelling. The decision is a sad conlusion for some of the most accomplished judicial careers on courts. Kozinski, who I have known for many years and has been to my class at George Washington University, was the best known libertarian on the bench. At 67, he could have had over a decade of additional opinions and impact, but his inappropriate conduct prematurely ended a brilliant career.
Continue reading “Alex Kozinski Resigns Amidst Multiple Sexual Harassment Allegations”
CNN guest commentator Hilary Rosen has long been something of a live wire on television as when she attacked the wife of Mitt Romney — comments that David Axelrod called “offensive” and President Obama apologized for during the campaign. She has been criticized for her sometimes no-holds-barred approach to advocacy for Democrats. We had such an exchange on NPR where she was quick to take offense as a lesbian to a discussion on Hillary Clinton’s record. She is again in the midst of a controversy and could well be sued for defamation (though I think such a lawsuit would be unwarranted). Rosen (who is Jewish) went on social media to condemn Georgetown student Michael Bakan as an anti-Semitic after he appears in a bacon outfit in this picture. She appears to have missed the fact that his name resembles (and is pronounced) “Bacon.”
I previously praised the position of my alma mater, The University of Chicago, in refusing to limit free speech with the creation of safe spaces and speech codes. Indeed, the courageous position of UChicago stood in sharp contrast to the troubling position of my other alma mater, Northwestern University (which has only grown more hostile to both free speech and academic freedom). Now, Northwest Vista College president Ric Baser has declared himself squarely on the speech regulation side of academia with a chilling rejection of a broad array of speech as hate speech, including words that “spread” or “provoke” or “create” “animosity and hostility.” Baser’s San Antonio Express-News op-ed titled “Hate speech does not equal free speech shows not only a disturbing lack of understanding of constitutionally protected speech but an intolerance for the speech of those with which he disagrees. Baser’s disturbing comments are part of a letter signed with 12 other members of the Higher Education Council of San Antonio, a group that he heads as president, which include the presidents of other colleges and universities.