Category Archives: Fifth Amendment

Several polls indicate that housing affordability continues to be a major issue across the nation.

As discussed in past blog posts, the Federal and state and local governments continue pushing for changes in zoning regulations to ensure that more housing units are affordable to more people in more areas.

In support of that goal, several communities, including Pittsburgh, are pursuing an approach called inclusionary zoning to ensure that residential developments include a minimum amount of housing units that are affordable to low- or moderate-income residents. The idea behind inclusionary zoning is to create mixed-income developments and neighborhoods. Municipalities are seeking to achieve inclusionary zoning by implementing either voluntary or mandatory zoning regulations.

The voluntary approach typically includes offering a developer one or more carrots (i.e., incentives). For example, in exchange for including a certain amount of affordable housing units in a development, a developer may be permitted the right to increase the developments density, height or coverage, or reduce required parking or setbacks. Other voluntary incentives include expedited approval processes or waiving/reducing fees to reduce time and costs.

While the carrot approach is preferable and usually more accepted, some communities, like Pittsburgh, choose to use the stick (i.e., mandatory) approach. Recently, Pittsburgh City Council voted to expand its mandatory Inclusionary Housing Overlay District (I-ZO) to certain other neighborhoods. The I-ZO requires that for residential developments of 20 or more housing units, at least 10% of the units must be designated as inclusionary units for rent or ownership by eligible households.

For rental inclusionary units, eligible households are those households earning no more than 50% of the areas median income. For owner-occupied inclusionary units, eligible households are those households earning no more than 80% of the areas median income. Inclusionary units must remain affordable for eligible households for an initial term of 35 years. In instances where inclusionary units or the subject property are sold during the initial 35-year term, the term automatically renews for another 35 years.

Other standards for inclusionary units in Pittsburghs I-ZO include providing that such units are: (i) distributed within and throughout the building or development; and (ii) equivalent to market-rate units within the building in all ways, including appliances, finishes and size.

To ensure inclusionary units remain affordable in accordance with these standards, a developer must not only record a deed restriction, but it also must enter into a master lease. Further, where it is not feasible for a developer to provide all of the required inclusionary units on the property, the developer can apply for special exception approval to construct the units at an alternative site. The alternative site must be owned or controlled by the developer and within of a mile of the property. Further, in contrast to the minimum 10% of the units that are required to be inclusionary when located on-site, at least 12% of the units must be designated as inclusionary to construct inclusionary units at an alternative site.

While the intended goal of Pittsburghs I-ZO may be noble, its stick approach has drawn the ire of the Builders Association of Metropolitan Pittsburgh (BAMP). Not surprisingly, BAMP has filed a federal lawsuit challenging Pittsburghs mandatory inclusionary zoning approach on the grounds that it violates the State and Federal constitutions. BAMPs complaint states, in part, as follows:

By way of the Ordinance, the City improperly seeks to shift the burden to fund low- and moderate-income housing from the general public to a select population, namely residential real estate developers. The imposition of this burden on BAMP members constitutes an improper taking of private property without just compensation, in violation of the Takings Clause of the Fifth Amendment, made applicable here by the Fourteenth Amendment, and in violation of the Due Process Clause of the Fourteenth Amendment. As such, the ordinance cannot be permitted to stand.

As more communities look to use zoning to provide for affordable housing, it is expected that there will be an increase in the number of lawsuits, especially in those communities instituting mandatory inclusionary zoning without incentives.

Remember, it is said the way to ones heart is through their stomach. In instances of zoning, carrots certainly taste better and arent as painful as sticks.

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Inclusionary Zoning: Carrots Taste Better and Arent as Painful as Sticks - JD Supra

This article by Natasha Sumner was originally published on Microdose and appears here with permission.

A growing body of research into the therapeutic use of psychedelics, including MDMA, psilocybin, LSD, ketamine, and DMT, are delivering promising results to treat a wide range of conditions such as post-traumatic stress disorder (PTSD), depression, end-of-life anxiety, eating disorders, stroke, and chronic pain. Robin Carhart-Harris, head of theCentre for Psychedelic Researchat Imperial College London,wrote forThe Guardian, we can no longer ignore the potential of psychedelic drugspsychedelics appear to increase brain plasticity, which, broadly speaking, implies an accelerated ability to change.

This article provides a brief overview of the Food and Drug Administrations (FDA) regulatory scheme around drug development, future clinical research of psychedelics, andlegal challenges in this emerging area.

The FDA regulates all drugs sold in the United States, which includes research pertaining to psychedelics. Typically, once a new molecule has been screened for pharmacological activity and acute toxicity potential in animals, the FDAs role begins and the legal status of the molecule changes to a new drug subject to specific regulatory requirements. The Multidisciplinary Association for Psychedelic Studies (MAPS) conducted Phase 2 clinical trials from 2004 to 2017 studying the effects of MDMA on PTSD.[1] Six randomized, double-blind, controlled clinical trials at five study sites were conducted. Active doses of MDMA (75125mg) or placebo/control doses (040mg) were administered to individuals with PTSD during psychotherapy sessions in two or three eight-hour sessions spaced a month apart. Three non-drug 90-minute therapy sessions preceded the first MDMA exposure, and three to four followed each experimental session. After two blinded experimental sessions, the active group had significantly greater reductions in CAPS-IV[2]total scores from baseline than the control group. Depression symptom improvement was greatest for the active group compared to the control group.

In May 2021, MAPS released the results of its Phase 3 trial.[3] MDMA-assisted therapy reported a significant reduction in PTSD symptoms compared to those who received placebo with therapy. This is thefirst Phase 3 trial of any psychedelic-assistedtherapy.These are incredibly important findings because although SSRIs are associated with an overall response rate of approximately 60% in patients with PTSD, only 20% to 30% of patients achieve complete remission.[4]

In aPhase 2 study comparing psilocybin to an SSRI, the psilocybin group did not show a statistically significant difference in Quick Inventory of Depressive Symptomatology-Self-Report scores compared with the SSRI after six weeks. However, the psilocybin group showed significantly larger reductions in suicidality, anhedonia, and standard psychological scores for depression. In November 2021,COMPASSPathway completeda phase IIb clinical trial on psilocybin and depression that demonstrateda highly statistically significant and clinically relevant reduction in depressive symptom severity after three weeks, with a rapid and durable treatment response.

In 2016,Johns Hopkins conducted a small double-blind studylooking at the effects of psilocybin on end-of-life anxiety. Researchers reported that a substantial majority of people suffering cancer-related anxiety ordepressionfound considerable relief for up to six months from a single large dose of psilocybin.

The FDA has numerous expedited processes that are designed to speed up the development and review of drugs that are intended to treat a serious condition and psychedelics are no exception to receiving such designations.The first psychedelic drug to gain FDA Breakthrough Therapy designation wasJohnson & Johnsons esketamine nasal sprayfor treatment-resistant depressionin 2013 and then again in 2016.MDMA was designated as Breakthrough Therapy in 2017 for PTSDandpsilocybin in 2018 for treatment resistant depression.

In addition to these expedited programs, the FDA has an expanded access program, sometimes called compassionate use, which is a potential pathway for a patient with animmediately life-threatening condition or serious disease or conditionto gain access to aninvestigational medical productfor treatment outside of clinical trials when no comparable or satisfactory alternative therapy options are available.TheRight to Try Actis another way for patients diagnosed with life-threatening diseases who have exhausted all approved treatment options and are unable to participate in aclinical trialto gain access to certain unapproved treatments. However, the Schedule 1 status of psychedelics has been a hurdle to terminally ill patients being provided with these drugs.

The psychedelic arena has also sought orphan drug status. In February 2021, PharmaDrug Inc., a pharmaceutical company focused on the research, development and commercialization of controlled-substances, natural medicines such as psychedelics, cannabis and naturally-derived approved drugsfiled an application with theFDA to receiveOrphan Drug Designationfor N,N-Dimethyltryptamine (DMT)in the treatment of acute ischemic stroke patients presenting for emergency medical assistance within 3-hours of symptom onset and for the prevention of ischemia reperfusion injury in patients undergoing kidney transplantation. An orphan drug designation allows for seven years of market exclusivity, a great incentive to find treatments for rare diseases or conditions.

FDA-approved clinical trials are key to psychedelics being approved for use in mental health and other treatments. Below is a list of current and upcoming psychedelic research:

There are numerous issues that have and will arise in the context of clinical research and drug development of psychedelics such as findinga source of a Schedule 1 drug that will pass regulatorymuster.In addition to regulating importation of drugs, the Drug Enforcement Agency (DEA) restricts who and howa researcher can study Schedule 1drugs. Furthermore, there are difficulties inusinga placebofor biascontrol in a psychedelic trial because of the strong physical and psychological effects these drugs have; in other words, both the participant and the researcher would know whether or not the participant was given the active compound versus the placebo.

Because clinical trials are showing high efficacy and safety, at least in certain settings, some of the psychedelic drugs may be rescheduled in the near future. That may create issues with exclusivity periods. When the DEA seeks toschedulea new drug under the Controlled Substances Act, itmust request recommendations from theFDA. Because theFDArequires applicants for approval of new drugs to commit not to market those drugs until after the DEA makes itsschedulingdetermination, theschedulingprocess can delay the entry of new drugs into the market, sometimes by more than a year after theirFDAapproval. The central issue inEisai, Inc. v. United States Food and Drug Administration(US Dist. Ct, D.C., 2015) waswhether and under what circumstances the period of time drug manufacturers spend waiting for a final DEAschedulingdetermination counts against the five-year exclusivity period.[5]

Because many psychedelic research companies are located outside of the Unites States,John Doe v. DEA(2017) is an interesting and relevant case addressing importation and bioequivalence in the context of generic drug approval. A drug manufacturer wanted to market a generic version of the drugMarinol, an FDA-approved drug containing the same active ingredient as marijuana and used to treat nausea and loss of appetite incancerand AIDS patients. To get approval to market its generic alternative, the plaintiff was required to successfully complete bioequivalency studies.Id. At 563. The FDA, after extensive testing and research, approvedMarinoldescribing it as [d]ronabinol (synthetic) in sesame oil and encapsulated in a soft gelatin capsulefor treatment of nausea associated withcancerpatients and anorexia associated with weight loss in AIDS patients.Id. At 564. The DEA eventually assigned dronabinol(synthetic) in sesame oil and encapsulated in a soft gelatin capsule in a U.S. Food and Drug Administration approved product to schedule III.Ibid. All other mixtures, compounds and preparations containingdronabinolremain[ed] in Schedule I.Ibid. In practical effect, only the brand name drug Marinol was rescheduled.Ibid.

The plaintiff sought to import over half a million capsules of its drug from its overseas manufacturing partner.Id. at 563. When the DEA learned that the substance plaintiff sought to import was notMarinol, the DEA denied plaintiffs permit application.Id. At 564. Because plaintiffs drug containing dronabinol has not been approved for marketing by the FDA, the DEA classified the drug as falling within the general category of dronabinol in schedule I, not schedule IIIs narrow description of [d]ronabinol in a U.S. Food and Drug Administration approved product.21 C.F.R. 1308.13(g)(1)(emphasis added).Ibid. Thus, the plaintiff found itself in a catch22: while it sought to import its drug under schedule III so it could conduct testing necessary to obtain FDA approval, the DEAs interpretation of its regulatory provision effectively prohibits importation of a drug containing dronabinol under schedule III until the drug is FDA approved. Ibid. The DEA interpreted its schedule III regulatory languageDronabinol(synthetic)in sesame oil and encapsulated in a soft gelatin capsule in a U.S. Food and Drug Administration approved product,21 C.F.R. 1308.13(g)(1)as not encompassing Does dronabinol drug, because plaintiffs drug is not FDA approved for marketing.Id. at 570-71. The plaintiff argued that this interpretation was contrary to law, arbitrary and capricious, and violated the due process clause of the Fifth Amendment.Ibid.In disagreeing with plaintiff, the court noted that plaintiff had options: (1) petition to have its dronabinol drug rescheduled, or (2) obtaining schedule I registration.Id. at 573. The court also noted that it was not unsympathetic to plaintiffs predicament. The DEAs interpretation obviously does make it harder (and costlier) for plaintiff to obtain final FDA approval to market its generic drug. As plaintiff has pointed out, this result runs counter to Congresss purpose manifested in the so-called HatchWaxman Amendments,Pub. L. No. 98417, 98 Stat. 1585 (1984), to make available more low cost generic drugs.Ibid. (citations omitted). The court concluded by noting that to the extent the DEAs interpretation is bad policy, that must be addressed by the agency or Congress.Ibid

A sign that the federal government is changing its purview of psychedelics is theMay 2021 DEA decisionto allow Wake Network to legally import psilocybin for research. Furthermore, theDEA recently increased the legal production quotasof MDMA, DMT, and psilocybin for use in research.

The importance of these cases and recent DEA actions to the area of medicinal use of psychedelics is manifold. The courts decision inJohn Doeeffectively meant that Marinol would have a much longer hold on the market absent any competition from a generic version. Additionally, the cases referenced above illustrate the importance of where the DEA places a drug on the schedule and how the FDA describes the approved drug in terms of importation, research, and ultimately commercial viability of a drug.

Psychedelic research is here to stay. How that research progresses largely depends on whether psychedelic drugs get rescheduled, whether and how patents are issued, and state laws. In the next article, I will further discuss paths to drug development specific to psychedelics and some of the legal issues that will likely arise including whether the drug is novel that would dictate the pathway to approval and ultimately the length of time to potential commercial availability.

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The Trials And Tribulations Of Psychedelic Research - Benzinga - Benzinga

Former President Donald Trump can cap the $10,000-per-day contempt order accruing against him at a $110,000 fine payable to the office of New York Attorney General Letitia James if he complies with certain conditions, a Manhattan judge ruled on Wednesday.

On April 25, Manhattan Supreme Court Justice Arthur Engoron found Trump in contempt of court for failing to comply with subpoenas related to the attorney generals probe into whether he inappropriately inflated or deflated assets for certain tax benefits.

Mr. Trump, I know you take your business seriously, and I take mine seriously, Engoron said last month before banging a gavel.

The fine became active on the date of the written opinion, and Trump lost a previous attempt to purge that order with an affidavit insisting that he had no more information to turn over the attorney general.

On Wednesday, Engoron gave the former president an off-ramp if he satisfies multiple conditions by May 20.

Trump must file so-called Jackson affidavits, which must contain more detail about the searches and policies related to the destruction and retention of files. HaystackID, the Republican-party affiliated eDiscovery firm that he retained, must have completed its review and submit its report on subpoena compliance.

The former president also must have paid a $110,000 fine to the Office of the Attorney General, representing the total from the date of the judges written order up to May 6.

Failure to satisfy any of the above conditions shall result in the contempt order being restored and the fine reinstated retroactively to Saturday, May 7, 2022, Engorons written order states.

Attorney General James applauded the outcome as a result of her offices persistent and tenacious pursuit.

Reaffirming a ruling holding Donald J. Trump in contempt, a judge has ordered Mr. Trump to pay my office for his refusal to comply with our subpoenas, James wrote in a statement. For years, Mr. Trump and the Trump Organization have tried to thwart our lawful investigation, but todays decision makes clear that no one can evade accountability. We will continue to enforce the law and seek answers as part of this investigation.

Trumps attorney Alina Habbadid not immediately respond to a Law&Crime email requesting comment.

In the past, Habba pulled few punches in her criticism of Justice Engorons ruling. She initially described the contempt order as crazy and accused him of theatrics like the dramatic pounding of the gavel that, in her view, reduced the proceedings into public spectacle.

Trump, her client, lashed out at Attorney General James and Manhattan District Attorney Alvin Bragg as racist. Both James and Bragg are Black, and at least officially, both have lodged active investigations against Trump and his business, though the criminal investigation by Bragg appears to have stagnated.

The parallel investigations trace their roots to testimony by Trumps ex-fixerMichael Cohen in 2019, accusing his former boss of cooking the books for tax benefits. The criminal investigation began under Braggs predecessor Cyrus Vance(D), who had hired former racketeering prosecutor Mark Pomerantz to help lead the investigation along with his general counsel, Carey Dunne. Both Pomerantz and Dunne tendered their indignant resignations in face of Braggs reported reluctance to prosecute Trump.

Unlike the DAs probe, Jamess investigation remains civil in nature, and she prevailed earlier this year in her bid to depose Trump and two his adult children Ivanka Trump and Donald Trump Jr. The attorney general previously deposed Eric Trump, who answered more than 500 questions by asserting his Fifth Amendment right against self-incrimination.

Since Eric Trumps deposition, James revealed that she had been assisting in the Manhattan DAs criminal probe, and the other members of the Trump family argue that puts them in a Catch 22. If they invoke their Fifth Amendment rights to (in essence) remain silent, those answers cannot be used against them in criminal proceedings, but they can be used to create an adverse inference in civil court.

That issue lies at the heart of the appeal of an earlier ruling by Justice Engoron, which remains pending before the appellate division.

UpdateMay 11, 2022 at 3:03 p.m. Eastern Time: This story has been updated to include the judges written order.

Read the ruling, below:

(Michael Zarrilli/Getty Images)

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Trump Can Purge Contempt Order by Paying $110,000 Fine to N.Y. AG and Following These Instructions by a Manhattan Judge - Law & Crime

(Photo by Drew Angerer/Getty Images)

It was a weird day in court for Donald Trump. Which is to say, it was a Wednesday, since every courtroom appearance by the famously litigious former president is an occasion for wackassery of one sort or another.

It started with an appearance before Supreme Court Justice Arthur Engoron, in which Trumps attorney Alina Habba tried to convince the court to abatecontempt order finding that her client willfully disobeyed a lawful order of this court and should be assessed a $10,000 daily fine until he complies with discovery. The contempt resulted from Habbas decision to comply with a March 3 discovery stipulation with16 pages of blather restating objections already rejected by the court, plus an affidavit of compliance saying that the requested information was in the custody of the Trump Organization, and so Trump bore no responsibility for turning it over.

In a written order today, Justice Engoron agreed to conditionally purge the contempt provided that Trump actually complies sans scare quotes with the discovery to the courts satisfaction by May 20. Habba will have to submit affidavits of compliance that actually accord with New York Law (fourth times a charm?), and HaystackID, the e-discovery firm tasked with marshaling documents after the Trump defendants failed to do it themselves, will have to certify that they are actually complying. Trump will have to cut the AG a check for $110,000 to cover the accrued contempt fines, and hell have to pay more if he fails to live up to the terms of the order.

This afternoon, four justices from the First Department Appellate Division heard the appeal of Justice Engorons order that Trump and his two eldest children sit for testimony. Like the trial court hearing on this issue, it was pretty wild.

Trumps lawyer Alan Futerfas rested his argument on the theory that its somehow illegal for the AG to issue a civil subpoena when there may be a parallel, ongoing criminal investigation by District Attorney Alvin Bragg. A criminal grand jury subpoena in New York comes with an automatic grant of immunity, and Futerfas argued that the civil subpoena is simply a ruse to circumvent criminal process.

After the high profile resignations of the outside attorneys hired by Braggs predecessor Cyrus Vance, Jr. to prosecute Trump, its pretty clear that theres nothing left of the criminal investigation. But with Bragg still pinky swearing that the investigation is ongoing even after the grand jury has been disbanded, Futerfas is going to keep flogging this dead horse a little while longer.

The problem with this argument, as the Justices noted, is that civil deponents can assert their Fifth Amendment right against self-incrimination, as Eric Trump did hundreds of times when he was ordered to testify back in 2020.

You dont have the right to testify before a grand jury, and no prosecutor worth his salt is going to allow you to testify Presiding Justice Rolando Acosta said incredulously.

Youre asking us to eliminate dozens of years of precedent or act as legislators, he added later. Its not like you are unaware of your criminal jeopardy, in which case you can invoke your privilege against self incrimination. Thats the remedy that you have.

Justice Tanya Kennedy was similarly non-plussed with Futerfass premise that a civil investigation which leads to criminal charges is somehow illegitimate.

Whats wrong with that? she wondered.

If that civil investigation creates criminal jeopardy, then it creates criminal jeopardy, Justice Acosta agreed.

In an attempt to distinguish his case from every other precedent, Futerfas argued that Tish James was biased against his client, and thus her subpoenas were somehow illegitimate.

We have years of statements by Letitia James, he said, his voice rising in indignation.

We have years of statements by everybody, Justice Acosta responded. And he didnt need to explain that a guy who ran on a platform of LOCK HER UP is hardly in a position to complain about public statements by an elected official.

Thank you both for your arguments, theyve been lengthy and thorough, Justice Acosta concluded drily.

And just to make the day even better, Justice Engoron rejected a bid by Trumps appraisers Cushman & Wakefield to let the company re-argue its motion to allow it to quit complying the AGs subpoenas about how it came up with such wildly varying valuations of Trumps properties.

Declined to sign as without any merit, he wrote. The [order to show cause] is simply a rehash of issues already properly decided by this court in prior opinion.

Not exactly a hole in one.

Elizabeth Dyelives in Baltimore where she writes about law and politics.

Alan Futerfas, Alina Habba, Alvin Bragg, Arthur Engoron, Courts, Cy Vance, Donald Trump, Eric Trump, Letitia James, Rolando Acosta, Tanya Kennedy

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Vanky, DJ, And Their Dad Get Chilly Reception In New York Appeals Court - Above the Law

A lawyer for Donald Trump, Ivanka Trump, and Donald Trump Jr. faced strong but good-natured pushback in a Manhattan appeals court on Wednesday as he argued that the New York attorney general's subpoenas for his clients' testimony are improper and rooted in political bias.

The four-judge panel will decide whether the three Trumps must give sworn, closed-door testimony in Attorney General Letitia James' investigation of the family's real-estate business, the Trump Organization.

In fighting the subpoenas in oral arguments, Alan S. Futerfas reprised the two arguments he's used in state court and an appellate brief.

The first argument is that James' three-year investigation into the former president's business is a partisan vendetta. Futerfas argued that James, a Democrat, has publicly criticized the former president and GOP kingmaker since running for attorney general in 2018.

As his second point, Futerfas argued that the Trumps shouldn't be forced to give depositions in James' civil probe of the family business when their testimony could put them at risk in a parallel criminal probe.

Futerfas argued that "the attorney general is basically standing in the shoes of the district attorney" and that forcing the Trumps to testify in James' civil probe would eviscerate their Fifth Amendment right against self-incrimination.

But members of the four-judge panel of New York's First Judicial Department repeatedly asked the same question that a state judge had asked in ordering the Trumps to testify: If the Trumps fear incriminating themselves, why not just comply with James' subpoena and then plead the Fifth?

"I agree that it is proper for courts to protect against the evisceration of the privilege against self-incrimination," Rolando Acosta, the presiding justice, told the Trump family lawyer.

"But what prevents you from invoking that privilege?" he asked. "Why do we need to intervene in this case, and interfere in or constrain the ample discretion and authority given by statute to the attorney general?"

Another judge on the appellate panel, Peter Moulton, noted that the attorney general had been gathering evidence against the Trumps via her civil probe since 2019, when Michael Cohen, Trump's former lawyer, testified in Congress about his former boss' alleged financial wrongdoing.

For example, James has said in filings that her office is pursuing Cohen's allegation that Trump would inflate the value of his assets in seeking hundreds of millions in bank loans and then deflate the value when seeking a break on property taxes.

"Counsel, does it matter that the civil fraud investigation began in 2019, well before the criminal prosecution, and was based upon the testimony of Michael Cohen, and has gathered quite a lot of evidence since then thousands of pages of documents?" Moulton asked.

James didn't announce she was weighing criminal charges until May 2021, two years after the civil probe began.

"It had some momentum going before there was a criminal prosecution," Moulton said of James' civil probe.

"But by the time you get to the issuance of these subpoenas," Futerfas countered, "Letitia James had announced that she was part and parcel of the criminal investigation" by the Manhattan District Attorney's Office that led to the indictment of the Trump Organization and its chief financial officer at the time, Allen Weisselberg.

A third judge on the panel, Anil Singh, pushed back against the lawyer's claim that James is politically biased against Donald Trump.

Futerfas said James had made "years of statements" against Trump, calling him an "illegitimate president" and vowing to prosecute him.

"And the attorney general sought political contributions in January of 2022, and it's in the record," he said. "There's an email blast that went out saying, 'Do you like this president? Do you support this president?' because the attorney general was running for governor for a short time.

"And it was all about using political animus against Mr. Trump," he said. "While she was an officer of the state! How could she do that?"

"Counsel, counsel," Singh interrupted. "Isn't there a factual predicate for the investigation, based on Cohen's testimony?"

"Certainly, when Mr. Cohen testified, they could have an investigation," Futerfas answered.

"I've been practicing law for 34 years," he continued. "I've never seen the kinds of statements, in 34 years, that were made by someone seeking the highest law-enforcement position in the state. They're simply wrong. They're unacceptable."

Futerfas said that any other law-enforcement officer who made the kinds of statements James made against Trump against an investigatory target what he called "the merging of political agendas with law enforcement" would have been forced to recuse themselves.

The last judge to speak, Tanya Kennedy, brought the discussion back to the attorney general's right to issue civil subpoenas even while commencing a criminal investigation, as argued during the proceeding by Judith N. Vale, an appeals lawyer for the attorney general. (Read the attorney general's response to the Trump document subpoena appeal here.)

"They're allowed to collect evidence, right?" Kennedy asked.

Kennedy last week turned down Donald Trump's request for an immediate halt to a $10,000 contempt-of-court fine for failing to comply with the attorney general's separate subpoena for his documents, which the former president is also appealing.

"Justice Kennedy," Futerfas said, "they have already said, and they have never denied, whatever information they get under the guise of the civil subpoena is going to go right to the DA's office. They've never denied it."

And what's wrong with that, the presiding justice asked.

"Isn't that in the normal course of business?" he asked. "Generally, they start with an investigation into a particular conduct ... and then they conduct a civil investigation. If that civil investigation creates criminal jeopardy, then it creates criminal jeopardy."

It was a busy day in court for Trump and his business.

Earlier in the day, a lower-court judge ordered that Trump must cut a $110,000 check to James' office to end the contempt-of-court order that was charging $10,000 a day in penalties for the former president's failure to comply with James' subpoenas for his documents.

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Trumps have tough time fighting NY subpoenas in appeals court - Business Insider

In the excitement of Pulitzer day, Commentary and Editorial Writing command a bit less attention than high-profile reporting categories. But as this years winners illustrate, the Pulitzer board still likes opinion pieces and prefers them fiery hot.

The Editorial Writing award went to Lisa Falkenberg and others on her team at the Houston Chronicle for writing on voter suppression and bogus voter fraud charges in Texas. Senator Ted Cruz, Gov. Greg Abbott and Attorney General Ken Paxton all came under heavy fire.

In the Commentary category, perennial finalist Melinda Henneberger of The Kansas City Star was honored for a relentless series of columns seeking prosecution of a retired police detective accused of rape and being a serial sexual predator. A down-market Jeffrey Epstein, Henneberger said in a conversation.

The entries share the distinction that they were heavy on deep reporting, a frequent preference of the Pulitzer board in any category.

While Henneberger was a finalist but not a winner for each of the last three years, Falkenberg was an awards veteran, having won a Pulitzer for commentary in 2015.

The entries also have in common that they have not yet led to corrective action of the sort often found in reaction to Pulitzer-winning local investigations, and thus are being pursued this year and beyond.

Henneberger told me that the retired detective is not young and not well so the legal establishment in Kansas City, Kansas, seems not keen on seeking punishment. Im furious that nothing has been done, she said. Its just appalling.

As for the Texas editorials that ran under the continuing title, The Big Lie, Falkenberg said, I wish I could tell you we stopped what was happening, but I cant. Its uphill work and continuing, she said. The worst version (of restrictions on registration and voting), known as Jim Crow 2.0, didnt pass. I hope our work contributed to that result.

The Pulitzers still dedicate two of the 15 journalism categories to opinion; three if you count Editorial Cartooning, which was recast and expanded this year as Illustrated Reporting and Commentary; four if you include Criticism, which often but not always tilts to arts topics.

Thats unfashionable at a time when many publications are cutting back on staffing and space for editorials, and a number have eliminated candidate endorsements (not to mention most arts criticism) altogether.

Falkenberg said she is happy to buck that trend and admit to being a bit of a traditionalist. Her earlier Pulitzer resulted in reversing a wrongful homicide conviction. But she said that she sees a value to the institutional voice that Lisa Falkenberg, writing alone, does not have.

In addition, editorials are consistently the best read of a variety of opinion formats at the Chronicle, she said, and during endorsement season, those pieces generate the most traffic and the most new subscriptions.

Falkenberg said that she is always fighting to get more staffing. As is, though, the paper has three editorial writers; she and three other editors also write, and the operation recently added a producer.

McClatchys Kansas City Star, as I wrote back in December 2017, reorganized its opinion operation to include columnists and upped staffing just as many metros were cutting back. The editorial staff produced a series on favoritism in bidding on a $1 billion airport construction contract that got it rescinded and rebid.

Hennebergers resume includes a decade as a reporter for The New York Times and stints at The Dallas Morning News, The Washington Post and Bloomberg Politics. This week she moved on from the Star to a new job as columnist for The Sacramento Bee, McClatchys flagship.

Ive been in so many places, she said, but the last five years have been the most satisfying of my career by a lot. In a big news market, you never really have a story like Trump to yourself. Here Ive found that if I didnt do this story, no one would. And thats why local journalism matters so much.

Hennebergers Pulitzer work typically consists of the single-minded pursuit of particular injustices. This set of investigative columns, she said, took months of reporting, including time getting to know people who had no reason at all to tell what had happened to them.

Falkenberg said that she and her staff try consistently for value-added pieces, making sure the work is not just factual but based on original reporting.

An association of opinion journalists went out of business in 2016 as participation waned, folding into the News Leaders Association (then the ASNE). But with only informal communication left in the field, Falkenberg said, she is encouraged to hear that some papers that cut deeply have reconsidered and are building back.

I hope so. Mondays winners show the continuing merit of robust opinion writing even as digital formats, not so friendly to opinion writing as print, become dominant.

Also, for readers of any kind, I recommend dipping into the exemplary 2022 winning entries if only for a bracing jolt of outrage. Here are some examples:

From Editorial: The shame of Texas Cruz, Paxton and the Seditious 16 (The Houston Chronicle editorial board, Jan. 9, 2021):

Now and then through the years we Texans have sent our share of buffoons, grifters, lightweights, crooks, ignoramuses and ego-obsessed asses to Washington as representatives of the people.

In the wake of last weeks Capitol insurrection, add to this ignominious list the states junior senator, Ted Cruz and the 16 Republican House members who voted in favor of discredited objections to certifying the presidential election results in one or more swing states. The Seditious Sixteen voted to short-circuit democracy even after a Trump mob rampaged through the Capitol, even after blood was shed in the halls of that august building.

Also add to this list Ken Paxton. Like a tongue-flapping pup hopping into the bed of his masters pickup on a jaunt to town, our indictment-burdened, ethics-allergic attorney general headed to Washington last week for no reason other than to stand adoringly alongside President Donald Trump and echo his unhinged calls for insurrection

From Why is Roger Golubski, an accused rapist and former KCK cop, still walking around free? (Melinda Henneberger, The Kansas City Star, Jan. 3, 2021):

A 5-foot-9-inch, 250-pound white male accused of sexually assaulting dozens of mostly poor Black women is at large in Kansas City, Kansas.

No need to put out an APB, though, because the suspect, former homicide detective Roger Golubski, who retired in good standing and with a full pension from the Kansas City, Kansas Police Department, isnt in hiding. Theres no mystery about his whereabouts, right in Wyandotte County, where hes lived all his life.

In a November deposition in a civil case against him, Golubski mostly declined to answer questions by invoking his Fifth Amendment right not to incriminate himself. He did that a nice round 555 times.

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The Pulitzers still value opinion writing and so do readers - Poynter

Happy Birthday to Johnny D and his merry band of prosecutors! Today marks your third birthday! Quite a milestone for an investigation that has just one conviction a gift wrapped up with a bow from Michael Horowitz to show for those three years.

John Durham, however, had something much more ambitious planned to mark the milestone, it appears.

As Sean Berkowitz noted earlier this week, Sussmanns team wants to call Eric Lichtblau as a witness in next weeks trial. They were able to get Lichtblau to agree to testify based on the understanding he would only testify about conversations with Michael Sussmann and Rodney Joffe. But Durhams team I guess to assert the newfound brattiness of a three-year-old refused to limit their cross-examination to those who had waived confidentiality.

There is an issue here that I want to alert you to. We reached out to Mr. Lichtblaus counsel, actually counsel for The New York Times, to explore their willingness in light of the First Amendment issues to testify at the trial. And we told him that both Mr. Sussmann and Mr. Joffe would waive any privilege associated with the press privilege; and that gave The New York Times comfort that, notwithstanding their normal policy of objecting, they would allow him to testify about his interactions with

Mr. Sussmann and Mr. Joffe, communications between the two as well as communications with the FBI that wouldnt be protected by privilege because the FBI reached out to them to ask them to hold the story.

They did tell us that they would object to questioning Mr. Lichtblau about independent research he did in support of the story, you know, people he spoke with to verify sources and other types of things that were not communicated to Mr. Sussmann.

We told him from our perspective that seemed like a fair line to draw, and we would not get into that.

Hes reached out to the Government on that issue, and it appears there may be again, I dont want to speak for the Government but it appears that they may not be in a position today to give The New York Times that assurance. And so we expect The New York Times sometime this week will be filing a motion on that issue to tee it up for your Honor.

I know youre welcoming all this additional paper.

THE COURT: One more intervenor in the mix.

MR. BERKOWITZ: All the news thats fit to print.

As a motion submitted by Lichtblau yesterday and a declaration from his lawyer Chad Bowman lays out, after Sussmann and Rodney Joffe waived their confidentiality with Lichtblau by April 21, Durham then took eleven days to consider whether they were willing to limit Lichtblaus testimony to his conversations with the two of them. Predictably, Andrew DeFilippis was not.

On April 21, 2022, I spoke by telephone with Andrew DeFilippis in the Special Counsels Office, as well as several of his colleagues. I asked whether the prosecution similarly would be willing to limit examination to direct communications between Mr. Sussmann and Mr. Lichtblau, a journalist, particularly given the Department of Justices new policy restricting the use of compulsory process to obtain information from reporters, as memorialized in the Office of the Attorney Generals July 21, 2021 Memorandum, a true and correct copy of which is attached as Exhibit B and which is also available online at at https://www.justice.gov/ag/page/file/1413001/download. Mr. DeFilippis stated that the prosecution needed time to consider the request.

On May 2, 2022, during a follow-up telephone call, Mr. DeFilippis stated that the prosecution was unable to give any assurance that their cross-examination questioning of Mr. Lichtblau would be confined to his discussions with Mr. Sussmann. In particular, Mr. DeFilippis stated that certain of Mr. Lichtblaus email communications with third parties were within the prosecutions possession, and that the prosecution might want to examine Mr. Lichtblau about other, unknown aspects of his reporting. He also indicated a view that any reporters privilege would be pierced by a trial subpoena.

This is, by all appearances, a naked attempt to keep a very devastating witness off the stand. Theres no way, even under prior guidelines, Durham would have been able to get Lichtblaus testimony; particularly given that theyve got the communications in question, they couldnt show a need to get his testimony.

Thats all the more true given Merrick Garlands prohibition on requiring testimony from reporters.

But Lichtblaus testimony is pretty critical for Sussmann, not least because hell make it clear he reached out to Sussmann and that the interest in reporting on Russian hacking was in no way tied to animus towards Trump. Plus, he would explain what an impact that acceding to the request from FBI to hold the story was for his career.

Durham has long tried to hide that after the FBI requested, Sussmann and Joffe acceded to help kill the story. It kills his conspiracy theory. It corroborates Sussmanns stated motivation for sharing the DNS anomaly, that he was trying to help the FBI. Particularly given that both Sussmann and Joffe have Fifth Amendment reasons not to want to testify, Lichtblau would provide a way to get the full extent of that process into the trial.

But Durham wants to prevent it from coming into evidence unless Lichtblau is willing to pay a needless price for doing so.

See the original post here:
To Celebrate Its Third Birthday, the Durham Investigation Will Attempt to Breach Eric Lichtblau's Reporter's Privilege - emptywheel - Emptywheel

THE TRAFFIC STOP

When a Baxter County sheriffs deputy stopped the vehicle in which Sanders was a passenger on December 22, 2021 in the Midway area, she proclaimed that as a sovereign citizen she was not required to provide any identifying information to the deputy.

Members of the sovereign citizen movement believe in a somewhat convoluted alternate system of law.

When she was asked to get out of the vehicle, she refused; again saying that would violate her rights as a sovereign citizen.

As she was being assisted from the vehicle she is alleged to have kicked one of the deputies involved in her arrest.

After she was brought to the Baxter County Detention Center, she was processed through the Arkansas Crime Information Center (ACIC) database and identified.

It was determined that Sanders had an active arrest warrant at the time.

METHAMPHETAMINE FOUND

During the process of determining Sanders identity, the booking officer at the jail reported a white powder-like substance had been found in the bottom of her bag.

The substance field-tested positive for methamphetamine.

As her charges were being read to her, she refused to listen or sign any paperwork.

VEHICLES NOT SUBJECT TO LAWS

One of the beliefs attributed to SC members is that any vehicle they happen to be in is not subject to rules, acts, statues or legislation that apply to everyone else.

When involved in a traffic stop, they often claim they are traveling, not driving, and that traveling is a God given right that cannot be infringed on in any way by any agency of government.

Many SC members refuse to buy insurance for their vehicles, do not have a drivers license and wont buy or display license plates.

REFUSE TO PAY TAXES

Some sovereign citizens also refuse to pay taxes. One SC member was reported to have sent in a blank return to the IRS. He claimed that providing the information would violate his Fifth Amendment right not to incriminate himself.

As a broad protest against paying taxes, a majority of courts have ruled that the Fifth Amendment self-incrimination argument does not stand up.

A 1921 Supreme Court case is often cited in cases dealing with refusing to file a tax return on Fifth Amendment grounds.

In that case, Justice Oliver Wendell Holmes wrote that if a defendant truly believed information required on the tax form would be incriminating, the taxpayer should raise that issue on the form, but could not simply refuse to file.

A DIFFERENT TAKE ON THE LAW

The SC movement members often use arguments based on erroneous readings of the law, or laws seemingly plucked from thin air.

They tend to employ a confusing, quasi-legal vocabulary during encounters with law enforcement officers and the courts.

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Originally posted here:
Woman claiming to be 'sovereign citizen' pleads guilty to charges - ktlo.com

Now may be a good time to max out your investments in airlines, car rental agencies and intercity bus companies. Travel has picked up as the pandemic has ebbed, but the Supreme Court could give it an extra boost by revoking the constitutional right to abortion.

The pro-abortion rights Center for Reproductive Rights has predicted that with Roe v. Wade gone, abortion would remain legal in twenty-one states and likely would be prohibited in twenty-four states.

Vast swaths of the continent would become abortion-free zones free of legal abortions, anyway. But Americans have been traveling to get what they want since the Pilgrims arrived, and women with unwanted pregnancies are no exception.

In the days before Roe, when the procedure was illegal in most of America, places such as New York and Washington state had lots of visitors who didnt come for recreation. Some 40% of all abortions were performed on patients outside their home state.

Already, liberal states are a destination for desperate abortion seekers. Illinois, surrounded by states that have greatly restricted access, saw nearly 10,000 women come from out of state to get abortions in 2020, the Tribune reports. Planned Parenthood said that number may quadruple if Roe falls. We are on the verge of a wave of abortion refugees.

But anti-abortion advocates are not likely to accept this outcome as inevitable. A bill was introduced recently in the Missouri legislature to bar its residents from getting abortions out of state.

Republican Rep. Mary Elizabeth Coleman told Politico: If you believe as I do that every person deserves dignity and respect and protection whether theyre born or unborn, then of course you want to protect your citizens, no matter where they are. Though her measure didnt pass, it will undoubtedly inspire other states to enact their own bans.

That would be a radical step, but radical is a term of endearment in the anti-abortion movement. It would be a terrible idea, though, and one at odds with our entire system of federalism.

One of our fundamental freedoms, long recognized by the Supreme Court, is the right to travel within the United States and be treated as an equal citizen from sea to shining sea. A state government can no more burden the freedom of its residents who venture out of state than it can burden the freedom of migrants from out of state.

In 1969, the court struck down a California law imposing a residency requirement for public assistance. It said the rule violated the right to travel and amounted to an unconstitutional discrimination which violates the Due Process Clause of the Fifth Amendment.

For a state to assert its power over citizens beyond its borders would be an act of extreme presumption. Decades ago, when Nevada was the only state with legal casinos, everyone could go there and gamble without fear of bluenoses back home.

The same limits apply today. Utah can ban recreational cannabis, but its residents may drive to Colorado to get high. California may forbid the open carry of guns, but it cant stop Angelenos visiting Arizona from packing in public view.

As University of Pennsylvania law professor Seth Kreimer has written, one basic principle of American federalism is that each citizen may take advantage of the liberties offered by any state. This arrangement also contributes to our national civic peace by accommodating a diversity of policies.

Anti-abortion advocates may argue that their cause is different because it involves life and death. Not so. A New Yorker who kills a fellow New Yorker in Atlanta and is acquitted under Georgias stand your ground law cannot be convicted under New Yorks less lenient statutes.

Conservatives, who champion state sovereignty, should recognize that only one state can be sovereign within its borders. Otherwise, every state could extend its policies into the other 49 states.

The right should also beware of handing a new weapon to progressives. If a state can punish conduct that takes place in another state, Connecticut, which bans assault weapons, could imprison a resident who uses one for target shooting in Maine. The possibilities for liberal mischief are endless.

If and when the enemies of Roe win their greatest victory, they will be tempted to seize every possible method of exploiting this success. But even the long reach of the law needs limits.

Steve Chapman writes for Creators Syndicate. He can be reached at stephen.j.chapman13@gmail.com.

Submit a letter, of no more than 400 words, to the editor here or email letters@chicagotribune.com.

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Steve Chapman: States that want to ban residents from getting out-of-state abortions have a problem: Federalism - Chicago Tribune

When Deborah Foss, a 66-year-old grandmother in New Bedford, Mass., bought her home in 2015, she expected it would be where she would live the rest of her life in comfort and security. But by February of this year, she had been forced from her home and is now reduced to living in her car.

What went wrong? With chronic health problems and living on a fixed income, Foss fell behind on her property taxes when she hit a rough financial patch. Thats when the city sold a $9,626 tax lien on her home to a private investment company. Under Massachusetts law, the lien gave the company power to take full title to her property when she didnt pay her debt quickly enough. The company evicted Foss and quickly sold the property. Almost before she could grasp what was happening, she had lost her home and $210,000 in equity.

Foss is just one victim of a form of tax foreclosure that is perhaps best described as government-approved home equity theft. People who fail to pay their property taxes in all states risk losing their homes. But most states will sell the property to the highest bidder, collect whats owed, and return the remaining proceeds, which at least offers some protection to the property owner. Massachusetts is one of only a dozen states that allow the government to snatch up someones entire hard-earned savings to benefit the government or private investors.

In my legal work on this issue, Ive met many victims of home equity theft. They are usually hard-working people who suffered financial hardship, often stemming from medical problems, or who hadnt received notice or understood their property was in jeopardy. They never imagined something like this could happen in the United States.

Take Uri Rafaeli, who lost his Michigan rental and all his equity in it when he accidentally underpaid his property taxes by $8. He fought all the way to the Michigan Supreme Court to prove the county had unconstitutionally taken more than he owed. Rafaeli recovered his home after his court win, but most people arent so lucky.

Lynette Johnson lost her small commercial property when the city mailed the tax notices to the wrong address. The city sold her property for $101,000 to a private investor when she failed to pay. Although she owed less than $20,000 in taxes, penalties, interest and fees, the city kept every penny. (My firm, Pacific Legal Foundation, is a pro-liberty public interest legal organization that has provided, or continues to provide, free legal support to Foss, Rafaeli and Johnson).

It doesnt have to be this way, which is why were fighting back in court. Weve filed lawsuits in various states challenging the constitutionality of home equity theft as a violation of property rights protection under the Fifth Amendment. Courts in different jurisdictions disagree about whether it is constitutional, so it may require a Supreme Court decision to settle the question.

Meanwhile, state lawmakers are engaging in a bipartisan fashion to address the problem through the legislative process. Montana, North Dakota and Wisconsin recently fixed their laws to end home equity theft. Bills that would end predatory tax foreclosures are pending in Massachusetts, Minnesota and California.

That may be bad news for companies that have found a profitable niche weaponizing foreclosures against the most vulnerable. It means county and municipal officials who have been sharing in the bounty will have to forego these cozy arrangements that generate windfall revenue for local governments. But these reforms will be a big win for the property owners who are callously targeted in these perverse tax foreclosures.

Not all states are getting it right: a Minnesota case has lost at the Eighth Circuit with a petition to the Supreme Court on the way and legislation stalled in Arizona.

Perhaps predatory tax foreclosures have been allowed to continue because most people are unaware that this regularly happens in their state. Right now, that list includes Alabama, Arizona, Colorado, Illinois, Massachusetts, Maine, Minnesota, Nebraska, New Jersey, New York and Oregon. And a few more states will sometimes engage in this kind of predatory foreclosure when the government desires the property to fulfill some other public use.

We all understand that people are required to pay their taxes and that those who dont will experience consequences, and sometimes foreclosure. But the government should not be allowed to take the life savings built up in these properties. The more Americans learn about how the government targets people such as Deborah Foss, Uri Rafaeli and Lynette Johnson, the less they like it and the more likely they are to demand the government stop the theft.

Weve made tremendous progress in pushing back on the unjust practice of home equity theft in recent years now we need a strong push to make these predatory foreclosures a thing of the past.

Christina Martin is a senior attorney at Pacific Legal Foundation and leads PLFs initiative to end home equity theft. Follow her on Twitter @CMM123.

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Massachusetts grandmother lost her savings to tax foreclosure law - The Hill