Category Archives: Fifth Amendment

The last time that we wrote about a president being inaugurated on March 4, it was in 1933: Frank Roosevelt takes office today; and Mr. Roosevelt enters the White House when the country is at what we all hope is the bottom of the worst depression it has ever suffered.

You see, March 4, used to matter. A lot. It was when Congress and the president began their terms. But the date has been a relic of history since the 20th Amendment, ratified that same year, 1933, moved the inauguration up six weeks to reduce the lame duck period from early November.

Starting in 1937, the presidential action has been on Jan. 20, with Congress beginning on Jan. 3.

Weve cracked open the archives because some crazed supporters of Donald Trump believed he would be sworn in Thursday, that March 4 is still all-important. Because the last time Trumps crazed supporters believed a nutty theory about presidential succession, they sacked the Capitol.

The lunacy goes like this: When ratified in 1868, the 14th Amendment supposedly did something that caused everything that followed to be not legitimate, including the 20th Amendment. Were not sure if the 14th still counts, but anything later is void, from the 15th to the 27th. No more rights of Blacks (15th) and women (19th) to vote. No more income tax (16th).

Hmm. Maybe the correct theory is that only the original Constitution is actually real, meaning no Bill of Rights, no free speech, no Fifth Amendment criminal rights, and there still would be slavery.

March 4 was in the 12th Amendment, not the 1787 Constitution. The Continental Congress picked the date for the new government. But the new government didnt make it. The first House met April 1, 1789, the first Senate on April 6, when they jointly counted the electoral votes. Washingtons inauguration was April 30. We guess hes not legitimate either.

New York Daily News/TNS

See original here:
Ghost of March 4 inauguration back to haunt us - Olean Times Herald

The trial of Derek Chauvin, the former Minneapolis police officer charged with murder and manslaughter in the death of George Floyd, starts Monday.

The trial is expected to attract heavy attention from national and international media as Floyds death sparked mass protests and unrest.

Heres what you need to know.

Monday is the first day of jury selection, which is scheduled to last for three weeks. Also Monday, a motion hearing is scheduled for 8 a.m.

On Friday, the Minnesota Court of Appeals said that Hennepin County Judge Peter Cahill, who is overseeing the trial, erred when he refused to reinstate a third-degree murder charge against Chauvin that the prosecution wanted.

The matter has been sent back to Cahill for him to reconsider, and Cahill may issue a decision this weekend or early next week. It is unclear if Mondays hearing is about the third-degree murder charge or what effect a third-degree charge will have on the start of trial, if any.

The process of selecting a jury is called voir dire, which is French for to see and to say. Prospective jurors will take an oath promising to answer questions truthfully. Questions can be asked to the jury in a written questionnaire and orally in the courtroom. The prosecution and defense can challenge potential jurors for cause if they think there is a clear reason why they should not qualify.

If a potential juror isnt dismissed for cause, then the prosecution and defense can decide if they want to use a peremptory challenge to strike someone from the jury without needing to provide a reason why. Prosecutors have nine of these challenges while the defense has 15.

Something that may come up during jury selection is a Batson challenge, which occurs when either side suspects the other side is striking potential jurors based on race or sex. The judge decides if the potential juror should stay if this challenge is used. The Batson challenge has no limit on the amount of times it can be used.

Jury selection is expected to last about three weeks, but it could be shorter or longer than that. Due to COVID-19 restrictions, the process will likely take longer than usual because fewer people can be in the courtroom at one time.

The 12-person jury will be made up of individuals who live in Hennepin County. And there will be up to four alternate jurors. Jurors are required to consider all evidence presented to them instead of their feelings and beliefs.

Richard Frase, a professor at the University of Minnesota Law School, said that while it may be hard to imagine how to find jurors who dont have their minds made up on the case, it is possible.

Hennepin County is a large county, Frase said, and it includes rural areas in addition to urban ones. Some who live in rural parts of the county may not be as aware of the case or follow Twin Cities media as closely as those living in Minneapolis.

The further out you are, the less things that happen in Minneapolis concern you, Frase said. So theres gonna be plenty of potential jurors that really dont know much about this case.

However, Mark Osler, a professor at the University of St. Thomas School of Law, said he believes it will be hard to find jurors who arent up to speed on the case. Osler said the judge likely will be careful and meticulous when questioning the jury, and it may well take longer than an average jury selection.

Chauvin is charged with one count of second-degree felony murder and one count of second-degree manslaughter in the May 25 death of Floyd, 46. Heres a deeper look into the charges Chauvin will face at trial.

Prosecutors also tried to reinstate a third-degree murder charge and Fridays Court of Appeals ruling opens the door to that. Legal experts say that prosecutors likely want to have as many shots at a conviction as possible.

Yes, he will be present as well as his attorney, Eric Nelson.

The prosecution team consists of Assistant Attorney General Matthew Frank, Special Attorney for the State Neal Katyal and a number of others.

Minnesota Attorney General Keith Ellisons office is prosecuting the case, but Ellison is not expected to make legal arguments during the trial, although he may be in the courtroom at times.

Its unknown at this time if Chauvin will testify. His attorney is not required to give notice if Chauvin intends to until the time comes for him to testify.

Thats maybe the biggest mystery in this case, Osler said.

Defendants are not required to testify under the Fifth Amendment of the U.S. Constitution.

The trial will be held at Hennepin County Government Center in downtown Minneapolis.

As part of security measures, fences and barricades are being put up around the government center and Minneapolis City Hall. Officials are planning to bring thousands of sheriffs deputies, police officers as well as the Minnesota National Guard to the area.

Osler said security at this trial is unlike anything seen before at a court proceeding in the Twin Cities.

Due to COVID-19 regulations and the high-profile nature of this case, access in the courtroom is extremely limited.

There are two seats for members of the media, which will be rotated out each day. Other media members will work across the street.

There also is one seat in the courtroom available for a member of Floyds family each day, and one seat for a member of Chauvins family. Benjamin Crump, an attorney for the Floyd family, said in a tweet that the Floyd family was disappointed that only one family member is allowed inside the courtroom at a time.

Members of the general public will not be admitted into the courtroom as the trial will be broadcast.

Minneapolis Mayor Jacob Frey said at a news conference on Feb. 24 that there will be designated areas outside of the Hennepin County Government Center for individuals to protest and gather.

Activists have criticized the citys plans to have a large police presence downtown.

Yes. Cahill ordered in November that the trial will be recorded, broadcast and live-streamed in audio and video. Most local and some national television news organizations are expected to carry the trial live.

According to Cahills Nov. 4 court order, members of the jury will be kept anonymous from the public.

They will be partially sequestered during the trial, and will be escorted to and from their vehicles before and after each trial day. They will be ordered to avoid speaking with the media. Jurors may be fully sequestered during the trial if the partial sequester plan isnt effective in keeping jurors from outside influence, the court order says.

The jury will be fully sequestered while they deliberate the verdict.

The names, addresses and other identifying information of jury members will be kept private during the trial.

Opening statements in Chauvins case are scheduled to begin no earlier than March 29.

The prosecution will present their opening argument first, as they carry the burden of proof because Chauvin is presumed innocent until proven guilty.

During opening statements, prosecuting attorneys will give an overview of what they will be arguing during the trial, and what types of experts or witnesses they will call and what evidence they will present. The defense may make their opening statements as soon as the prosecution finishes theirs, or they can wait until the prosecution argues their whole case.

The prosecution and defense will call witnesses and experts and present evidence as part of their arguments.

As with opening statements, the prosecution will go first. Each witness or expert will be directly examined by the side that called the person to the stand, and the other side will have an opportunity to cross-examine them.

The prosecution and defense will then make closing statements, with the prosecution going first again. However this time, the prosecution may also speak after the defense gives their closing statement, giving the final word before the trial ends and the jury deliberates.

The prosecution has about 360 names on their witness list, while the defense has more than 200. Not all of those witnesses need to be or will be called.

The prosecutions list includes the three other former officers charged in Floyds death, as well as Minneapolis Police Chief Medaria Arradondo; Darnella Frazier, the woman who recorded video of Floyds death outside Cup Foods; and Floyds brother Philonise Floyd.

According to legal experts, a lot of emphasis will be placed on Floyds autopsy and what caused his death.

Because Floyd had fentanyl and methamphetamines in his system when he died as well as underlying health conditions, according to the autopsy, the defense is expected to argue those factors contributed to his death, rather than Chauvins actions. The defense likely will also argue that the force Chauvin used to restrain Floyd was necessary.

The video that widely circulated online of Chauvin kneeling on Floyds neck also is expected to be shown. Legal experts say the video greatly helps the prosecutions case.

Several legal experts agreed that this case is in the prosecutions favor. The video of Floyd as well as the nature of Minnesotas second-degree murder statute make the prosecutions case strong.

However, some legal experts say the case against the other three former officers who will be tried at a later time is much weaker.

Following three weeks of jury selection, there will be an estimated two to four weeks of trial.

This means a verdict from the jury could be expected around early to mid-April, but that timeline could change and stretch into May.

Its hard to predict what will happen until the jury reaches a verdict. If Chauvin is acquitted, the prosecution will not be able to appeal the case. If Chauvin is convicted, he can appeal.

Should Chauvin be found guilty by the jury, he will later be sentenced. The maximum sentence for second-degree murder is 40 years and the maximum sentence for second-degree manslaughter is 10 years. If Chauvin is convicted, he will only be sentenced for the most severe charge.

The other three former Minneapolis police officers charged in connection with Floyds death J. Alexander Kueng, Thomas Lane and Tou Thao are scheduled to go to trial starting Aug. 23. They are all charged with aiding and abetting second-degree murder and aiding and abetting second-degree manslaughter.

Legal experts say this trial is perhaps the most important trial of Minnesotas modern era.

First, because police officers are rarely charged in court. Its also rare for them to be convicted. In recent years, the only officer to be convicted of killing someone while on duty in Minnesota was Mohamed Noor, the former Minneapolis police officer who shot and killed Justine Ruszczyk Damond in 2017. He is currently serving a 12-year prison sentence.

Second, race is a significant part of this case, Frase said. Chauvin is a white man who kneeled on Floyd, who was Black, for about nine minutes. Floyds death sparked mass protests across the country and the world against police brutality.

The result of this trial may have a significant impact on this movement worldwide.

Read this article:
What you need to know as Chauvin trial starts Monday - TwinCities.com-Pioneer Press

The former Wauwatosa police officer, who Milwaukee County District Attorney John Chisholm chose not to file criminal charges against in three deadly on-the-job shootings, plans to invoke his Fifth Amendment right if ordered to testify in a hearing where the family of one of the men killed is asking a judge to independently file charges.Joseph Mensah is one of 10 witnesses who potentially could be called to testify in a John Doe hearing, according to records filed in Milwaukee County Circuit Court.The hearing, which started Thursday, is a new attempt by the family of Jay Anderson Jr. to seek criminal charges against Mensah for the 2016 shooting which claimed Anderson's life. Anderson was one of three people Mensah killed in a five year period.Anderson, 25, was asleep in a car at Madison Park June 23, 2016, when Mensah, who was on patrol, stopped to investigate what he said was a suspicious vehicle. Mensah later told investigators he opened fire after Anderson ignored commands to not reach for a gun which was on the passenger's seat. Wauwatosa police officers did not have body cameras at the time. An independent investigator determined Mensah activated his squad car camera system after shooting Anderson. The camera, as designed, automatically went back and recorded the previous 28 seconds. It captured the shooting but is also designed to not include audio in the rollback.Chisholm relied on the video in his decision to not pursue criminal charges against Mensah. Chisholm also declined charges in the shootings of Antonio Gonzales 11 months before Anderson was killed, and Alvin Cole in 2020.If a district attorney "refuses or is unavailable to issue a complaint," Wisconsin statute allows a circuit judge to hold John Doe hearings to determine if there is probable cause to believe a person has committed a crime. The judge can then allow a criminal complaint to be filed.Mensah, who is now a Waukesha County deputy, and his former chief, Barry Weber, were served with subpoenas on Feb. 11 to testify in the John Doe hearing, according to briefs filed by lawyers representing the two law enforcement members.The lawyers want Judge Glenn Yamahiro to throw out the subpoenas, claiming they were improperly issued. Jonathan Cermele, who represents Mensah, argued his client would be unable to provide "any relevant material evidence related to this investigation.""Petitioner has made it crystal clear that Deputy Mensah is the 'target' of this action, and that she believes this Court should issue criminal charges against Deputy Mensah with regard to his use of deadly force in 2016," attorney Jonathan Cermele wrote to the court on Mensah's behalf, adding, "Deputy Mensah will therefore invoke his right to remain silent under the Fifth Amendment to the United States Constitution."Cermele also referenced Chisholm's decision in the Anderson shooting and said a February 2017 conclusion by the U.S. Attorney for the Eastern District of Wisconsin a later review by special investigator agreed with the district attorney."Petitioner may not like it, but the issue as to whether Deputy Mensahs actions in this incident rose to the level of a crime has been decided. Not once. Not twice. But three times," Cermele wrote.Weber's attorney, Patrick Knight, included a copy of the subpoena issued to his client. It required Weber to bring "any police reports regarding your interviews with investigators as it relates to the Jay Anderson, Jr. shooting on June 23, 2016."Knight argued, since the Anderson shooting was investigated by an outside agency per state law Weber could not give relevant evidence to help Yamahiro determine whether Mensah should be charged."I was not interviewed by law enforcement as part of the investigation into the Officer Involved Death," Weber said in a signed affidavit a week after receiving the subpoena. "The Wauwatosa Police Department and I have no 'police reports regarding your interviews with investigators as it relates to the Jay Anderson, Jr. shooting on June 23, 2016' and to my knowledge, none exist with other law enforcement agencies."The court Thursday heard from Anderson's family attorney, Kimberley Motley, and three witnesses.It was the first time testimony or evidence in any of Mensah's shootings was delivered in open court.The judge said the hearing will reconvene March 12.

The former Wauwatosa police officer, who Milwaukee County District Attorney John Chisholm chose not to file criminal charges against in three deadly on-the-job shootings, plans to invoke his Fifth Amendment right if ordered to testify in a hearing where the family of one of the men killed is asking a judge to independently file charges.

Joseph Mensah is one of 10 witnesses who potentially could be called to testify in a John Doe hearing, according to records filed in Milwaukee County Circuit Court.

The hearing, which started Thursday, is a new attempt by the family of Jay Anderson Jr. to seek criminal charges against Mensah for the 2016 shooting which claimed Anderson's life.

Anderson was one of three people Mensah killed in a five year period.

Anderson, 25, was asleep in a car at Madison Park June 23, 2016, when Mensah, who was on patrol, stopped to investigate what he said was a suspicious vehicle.

Mensah later told investigators he opened fire after Anderson ignored commands to not reach for a gun which was on the passenger's seat.

Wauwatosa police officers did not have body cameras at the time.

An independent investigator determined Mensah activated his squad car camera system after shooting Anderson.

The camera, as designed, automatically went back and recorded the previous 28 seconds.

It captured the shooting but is also designed to not include audio in the rollback.

Chisholm relied on the video in his decision to not pursue criminal charges against Mensah.

Chisholm also declined charges in the shootings of Antonio Gonzales 11 months before Anderson was killed, and Alvin Cole in 2020.

If a district attorney "refuses or is unavailable to issue a complaint," Wisconsin statute allows a circuit judge to hold John Doe hearings to determine if there is probable cause to believe a person has committed a crime.

The judge can then allow a criminal complaint to be filed.

Mensah, who is now a Waukesha County deputy, and his former chief, Barry Weber, were served with subpoenas on Feb. 11 to testify in the John Doe hearing, according to briefs filed by lawyers representing the two law enforcement members.

The lawyers want Judge Glenn Yamahiro to throw out the subpoenas, claiming they were improperly issued.

Jonathan Cermele, who represents Mensah, argued his client would be unable to provide "any relevant material evidence related to this investigation."

"Petitioner has made it crystal clear that Deputy Mensah is the 'target' of this action, and that she believes this Court should issue criminal charges against Deputy Mensah with regard to his use of deadly force in 2016," attorney Jonathan Cermele wrote to the court on Mensah's behalf, adding, "Deputy Mensah will therefore invoke his right to remain silent under the Fifth Amendment to the United States Constitution."

Cermele also referenced Chisholm's decision in the Anderson shooting and said a February 2017 conclusion by the U.S. Attorney for the Eastern District of Wisconsin a later review by special investigator agreed with the district attorney.

"Petitioner may not like it, but the issue as to whether Deputy Mensahs actions in this incident rose to the level of a crime has been decided. Not once. Not twice. But three times," Cermele wrote.

Weber's attorney, Patrick Knight, included a copy of the subpoena issued to his client. It required Weber to bring "any police reports regarding your interviews with investigators as it relates to the Jay Anderson, Jr. shooting on June 23, 2016."

Knight argued, since the Anderson shooting was investigated by an outside agency per state law Weber could not give relevant evidence to help Yamahiro determine whether Mensah should be charged.

"I was not interviewed by law enforcement as part of the investigation into the Officer Involved Death," Weber said in a signed affidavit a week after receiving the subpoena. "The Wauwatosa Police Department and I have no 'police reports regarding your interviews with investigators as it relates to the Jay Anderson, Jr. shooting on June 23, 2016' and to my knowledge, none exist with other law enforcement agencies."

The court Thursday heard from Anderson's family attorney, Kimberley Motley, and three witnesses.

It was the first time testimony or evidence in any of Mensah's shootings was delivered in open court.

The judge said the hearing will reconvene March 12.

View post:
Mensah to 'plead the 5th' if forced to testify in new hearing on deadly shooting - WISN Milwaukee

ORLANDO, Fla. The Conservative Political Action Conference (CPAC) will ramp up Friday with a focus on the Constitutionas a slew of high-profile Republicans speak on how the Bill of Rights can apply to modern America.

The Bill of Rights is one of the major themes of CPAC, American Conservative Union President Matt Schlapp told Fox News in an interview.

The concept of the Bill of Rights, the concept that we have these constitutional rights that were words that were used intentionally to make it clear that we have these rights will be a common refrain through the weekend, he said. And what you have is a modern socialist Democratic Party that is undermining each and every one of them.

JOIN CPAC 2021 FROM HOME: HOW TO WATCH STREAMING COVERAGE, EXCLUSIVE CONTENT ON FOX NATION

He added: They dont believe in using the amendment process to change the Constitution. They believe in going to judges to undermine our rights.

Sen. Mike Lee, R-Utah, will give one of the first addresses of CPAC 2021.

CPAC KICKS OFF AS REPUBLICANS EYEING 2024 CAMPAIGNS INCLUDING TRUMP SEIXE CHANCE TO WOO CONSERVATIVES

Among the major speakers who will hit on the topic Friday is Sen. Mike Lee, R-Utah. His speech is titledWhy the Left Hates the Bill of Rights and We Love It.

Lee will be one of the first speakers of CPAC, immediately following a welcome speech from Florida Gov. Ron DeSantis.

Lees talk will be followed by a panel on the First Amendment during which a different speaker will break down each of the fundamental freedoms provided in the amendment. Among them, former Wisconsin Gov. Scott Walker, who is the current Young Americas Foundation president, will address freedom of speech; Sen. James Lankford, R-Okla., will talk about freedom of religion; and coronavirus lockdown skeptic Alex Berenson will talk about freedom of the press.

It starts with the First Amendment, which were seeing under attack from the standpoint of the social media oligarchs, Schlapp said. And you can move right down and go to the Second Amendment. And Joe Biden has already talked about gun confiscations of people who they dont believe are worthy of the Second Amendment rights theyre born with.

Matt Schlapp, chairman of the American Conservative Union, speaks at the Conservative Political Action Conference (CPAC) at National Harbor in Oxon Hill, Md., Feb. 28, 2019. (REUTERS/Kevin Lamarque)(REUTERS/Kevin Lamarque)

CPAC SCHEDULE: WHO IS SPEAKING AT THE CONSERVATIVE POLITICAL ACTION CONFERENCE IN FLORIDA

Schlapp added: Were going through each one of the Bill of Rights and explain why its under attack.

Friday will also feature a panel on the Fifth Amendment, which protects against capital prosecutions without a grand jury indictment,double-jeopardyprosecutions, people being forced to bear witness against themselves in court and the deprivation of life, liberty, or property, without due process of law.

On that panel will be Rep. Tom McClintock, R-Calif., and Ian Smith, the owner of a New Jersey gym who accrued over $1.2 million in fines for openly defying the states coronavirus lockdowns.

CPAC READIES FOR FLORIDA GATHERING AMID COVID-!9, AS CONSERVATIVES SET FOR TRUMP BONANZA

Meanwhile, Sen. Ted Cruz, R-Texas, will deliver an address titled Bill of Rights, Liberty and, Cancel Culture, while Sen. Marsha Blackburn, R-Tenn., will speak on Fighting for Freedom of Speech at Home and Across the World.

Also expected to be themes on Friday are election security, the riots over the summer and Big Tech.

The high-profile speakers Friday will also include Sens. Rick Scott, R-Fla., and Tom Cotton, R-Ark. Cotton is considered a potential 2024 presidential contender while Scott as the chairman of the National Republican Senatorial Committee (NRSC) is responsible for guiding Senate Republicans back to the majority in the chamber in 2022.

Sen. Ted Cruz, R-Texas, speaks with reporters on Capitol Hill in Washington, Saturday, Feb. 13, 2021, on the fifth day of the second impeachment trial of former President Donald Trump. (AP Photo/Alex Brandon)

The Friday edition of CPAC will be headlined by Donald Trump Jr., who is set to speak at 3:25 p.m.

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CPAC in 2021 is in Orlando, Fla., instead of Maryland where its traditionally held. Schlapp says that this is because of coronavirus restrictions.

It was a very intentional decision to go to Florida, he said.We considered other states, Tennessee, Georgia Florida, Texas Florida just seems like the obvious place, he said.

You know, the city of Orlando obviously has got the infrastructure to take a big conference. I mean, Las Vegas would have, too, but the governor there just makes it impossible, is basically making it impossible for any business to be open, whereas the governor of Florida is doing just the opposite.

There are some coronavirus protocols at CPAC. Attendees have to take a health screening and get their temperatures taken each day. Masks are mandated, though the mandate is not always followed.

Despite the precautions, the halls of the conference center are still packed with Trump supporters, conservative activists and right-leaning luminaries.

DeSantis welcome speech is expected to touch on what many on the right see as far too onerous coronavirus restrictions in left-leaning states his address is titled Florida Welcomes CPAC: Open for Business.

Fox Nation is a sponsor of CPAC 2021.

Excerpt from:
CPAC heavy hitters to highlight constitutional freedoms, allege 'left hates the Bill of Rights' - Home - WSFX

During his Senate confirmation hearing on Wednesday, President Joe Bidens nominee for health and human services secretary, Xavier Becerrathe attorney general of California since 2017claimed that he never sued any nuns in response to a question about litigation against the Little Sisters of the Poor. Becerra further claimed that the lawsuit in question was filed against the federal government because they have been trying to do things that are contrary to the law in California.

At the hearing, Sen. John Thune posed the following question to Becerra:

It does seem like, as attorney general, you spent an inordinate amount of time and effort suing pro-life organizations, like Little Sisters of the Poor, or trying to ease restrictions or expand abortion. Youre going to have a big job as secretary of Health and Human Services, if confirmed. So how do you assure us, thatbecause I think the majority of American people would not want their secretary of health and human services focused or fixated on expanding abortion when weve got all these public health issues to deal with. So how do you assure us that thats not going to be something that continues over from your time as attorney general?

In response, Becerra stated:

Senator, thank you very much for giving me a chance to answer the question. And here, I think I tried to say to Sen. Grassley, I understand that Americans have different, deeply held beliefs on this particular issue and I absolutely respect that. By the way, I have never sued any nuns. I have taken on the federal government, but Ive never sued any affiliation of nuns, and my actions have always been directed at the federal agencies because they have been trying to do things that are contrary to the law in California.

After years of litigation during the Obama administration, in October 2017, the Department of Health and Human Services and the Department of Treasury under the Trump administration issued an exemption from contraceptive coverage for religious employers providing health insurance to employees.

After the Trump administration issued this new exemption, the attorneys general of five states, including California, sued, alleging that the exemption violated the Administrative Procedure Act, the Establishment Clause, and the Equal Protection Clause. The suit was filed on November 1, 2017, and on November 21, the Little Sisters of the Poor filed a motion to join the case as an intervenor. Intervenors are parties who are not included in the original suit but will be directly affected by the outcome of the case. In this case, the Little Sisters of the Poor were allowed to join the side of the government because Becerra asked the court to enjoin the government from exempting employers like theirs and would have forced the Little Sisters, as they put it, to choose between violating their faith and paying crippling fines. Following the Little Sisters joining as intervenors, the case name became California v. Little Sisters of the Poor. Regardless of their status as a party to the lawsuit, if Becerra had won his case, the government would have been restrained from acting but employers like the Little Sisters are the ones who would have been on the hook for paying the fines.

When asked for comment, the California attorney generals office shared a statement with The Dispatch Fact Check, saying: When the Trump Administration issued two rules that allowed employers and insurers to deny women and families coverage, it created a gap in coverage for Californians. By HHSs own assessment, up to 130,000 women would lose coverage as a result. In California v. Azar [the original case name of California v. Little Sisters of the Poor], the Attorney General sued the Trump Administration over these rules to defend the Affordable Care Acts contraceptive coverage mandate and Californians' coverage. The statement further claimed that The Trump Birth Control Rules did not affect the Little Sisters of the Poor, who (1) were exempt from the rules because they are a self-insured church plan (as they've confirmed in court); and (2) since 2018, the Little Sisters had a permanent injunction from the birth control accommodation.

Becerras former office is correct on their first point but it doesnt actually provide any support for Becerras claim that he was suing the federal government because they have been trying to do things that are contrary to the law in California. The lawsuit states explicitly that Becerra and the other attorneys general believed the regulations violate the Administrative Procedure Act (APA), the Establishment Clause of the First Amendment, and the Equal Protection Clause of the Fifth Amendment. No mention of California law made is made beyond Californias Contraceptive Equity Act, which the complaint openly states only applies to state-regulated health plans and doesn't apply to self-funded health plans, through which 61 percent of covered workers are insured. The complaint doesnt allege that the exemption breaks this law, only that those under self-funded plans [will] not receive the benefit of the act.

As Becerra and the other attorneys general said in their legal briefs, the Trump contraception mandate exemption did require California to absorb the financial and administrative burden of ensuring access to contraceptive coverage. But that doesnt mean that the Trump exemption violated California law or was in conflict with it. Nowhere do they arguein their legal briefs or their statement herethat the Trump exemption would have forced them to violate California law. This was a case about whether California would have to pay more money, not about whether the Trump administration exemption was contrary to the states laws.

The second point made by the attorney generals office is about whether the Little Sisters of the Poor would have been directly affected by the outcome of California v. Little Sisters of the Poor.

First, they argue that the Little Sisters wouldnt have owed any fines regardless because they could submit an opt-on form that would have allowed them not to provide such coverage to their employees. Chief Justice Roberts asked Paul Clement, who represented the Little Sisters, about this point during argument time for Little Sisters of the Poor v. Pennsylvania. Clement argued that even though the Little Sisters could not be fined for refusing to provide contraceptive coverage if they filled out the opt-out form, by doing so they were still being forced to violate their religious beliefs because the form then triggered the government to provide such coverage directly, thus making the Little Sisters active participants in the provision of contraceptives. Choosing to follow their conscience and not submitting the opt-out forms would result in fines of $100 for every day of noncompliance. In his concurring opinion, Justice Alito agreed, writing that the accommodation demanded that parties like the Little Sisters engage in conduct that was a necessary cause of the ultimate conduct to which they had strong religious objections.

Second, the attorney generals office is correct that a district judge in Colorado issued a permanent injunction. But the injunction applied only to the Little Sisters current health plans, leaving open the possibility the Little Sisters would be forced to comply with contraceptive coverage requirements if they ever changed health care providers or plans. And if Becerra had won his case at the Supreme Court, that permanent injunction would have been in jeopardy as well. In fact, the court addressed this issue in a footnote in the opinion for Little Sisters of the Poor v. Pennsylvania in which it found that the Little Sisters did have a potential injury.

California v. Little Sisters of the Poor is currently pending at the 9th Circuit to determine whether the Trump administration followed the correct process before issuing the exemption.

While Becerra technically may not have sued any nuns while attorney general, the result he sought in California v. Little Sisters of the Poor would have targeted employers who refused to provide contraceptive coverage to employees on religious grounds and forced them to pay fines if they chose not to do so. As Sen. Ben Sasse pointed out during Becerras confirmation hearing, while Becerra and his fellow attorneys general filed the suit against the federal government, the case had direct bearing on the ability of the Little Sisters of the Poor and other similar groups to function in accordance with their religious beliefs and remain financially solvent.

Becerra is even more flagrantly incorrect to claim that the case was about the federal government acting contrary to California law: Such rationale was never given when he initiated the suit and there is no apparent contradiction between the decision to create a religious exemption and Californias own laws on the matter.

If you have a claim you would like to see us fact check, please send us an email at factcheck@thedispatch.com. If you would like to suggest a correction to this piece or any other Dispatch article, please email corrections@thedispatch.com.

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Fact Checking Xavier Becerra's Claim That He 'Never Sued Any Nuns' - The Dispatch

I dont think thats true at all. Though he was no Washington or Lincoln, Trump amended the informal Constitution in at least five significant ways. No one of them is epochal or entirely unprecedented, but together they add up to something new, large, and dangerous.

Amendment 1. No president shall be removed from office for treason, bribery, or any other crime or misdemeanor, no matter how high, should a partisan minority of the Senate choose to protect him.

This amendment would have alarmed the Founders profoundly. They provided for only one way to remove a malfeasant presidentimpeachment by a majority of the House and conviction by two-thirds of the Senate. (The Twenty-fifth Amendment is designed for an incapacitated president, not a corrupt one.) Until Trump came along, the process had been used only twice, in 1868 and 1998, for Presidents Andrew Johnson and Bill Clinton. Neither was convicted by the Senate, but the potency of the threat was enough to constrain presidential behaviora norm that was strengthened in 1974, when President Richard Nixon resigned rather than face impeachment.

Trump was not the first president to be impeached, the first to be acquitted, or the first to be protected by his party. In 1998, Senate Democrats protected Clinton. But the charge against Clinton (perjuring himself to cover up a sexual affair) didnt seem very serious to the public, and after his acquittal it was still possible to assume that a truly high crime or misdemeanor would result in conviction. Trump and his Republican enablers comprehensively demolished that assumption.

Trumps first impeachment, in 2020, was for trying to use federal aid dollars to extort political help from a foreign country. That seemed as serious as the Watergate shenanigans that forced Nixon from office. His second impeachment, in 2021, was for sending a seditious mob into the streets to overturn an electiona misdeed that exceeded any prior presidential offense. As the House managers rightly asked in Trumps second trial, if the Senate did not convict a president for fomenting a violent insurrection, what in the world would it convict him for? The particulars, though, turned out not to matter. In both cases, the outcomeacquittalwas a foregone conclusion, because all Trump needed was 34 pliable and protective Senate votes.

The impeachment mechanism was intended to be a check on presidential misbehavior; instead, post-Trump, it is now more like a partisan permission slip, allowing presidents to do as they please provided they keep their party in line. In other words, from now on, presidents should assume that the way to hold on to power is to stay not on the right side of the law but on the right side of their party. To put it mildly, that is not what the Founders intended.

Amendment 2. Congressional oversight shall be optional. No congressional subpoena or demand for testimony or documents shall bind a president who chooses to ignore it.

Since the earliest days of the republic, Congresss authority to oversee and investigate the executive branch, though unwritten, has been one of the Constitutions most important avenues of presidential accountability. Anyone who doubts this need only recall the impact of the Watergate hearings. As teenagers, my brother and I got up and watched them early each morning before school, riveted by the daily revelations. Because congressional investigations can be so embarrassing, presidents have, to one degree or another, slow-walked them since the Washington administration. No news there.

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The 5 Trump Amendments to the Constitution - The Atlantic

Chandra Bozelko| More Content Now

In closing arguments, Lead Impeachment Manager Rep. Jamie Raskin (D-Maryland) asked, If you were charged with inciting violent insurrection against our country and you were falsely accused, would you come and testify? I know I would. Id be there at 7 in the morning, waiting for the doors to open. Im sure thats true of 100 senators in this room. I hope its true of 100 senators in this room.

Impeachment Manager David Cicilline (D-Rhode Island) did the same, saying if he were accused of a crime he hadnt committed, I would demand the right to tell my side of the story.

Raskin had issued a statement to the same effect Feb. 4, and House impeachment managers included this argument in their pre-trial brief.

The fact that impeachment proceedings arent entirely criminal they address high crimes and misdemeanors and end in conviction or acquittal but the convicted doesnt go to prison shouldnt excuse the impeachment managers from acknowledging that silence often protects the innocent; former President Donald Trumps refusal to testify shouldnt be interpreted in a way that causes others not to use the same right against self-incrimination.

The Fifth Amendment right to avoid giving testimony against oneself appears to apply to courtrooms but in the Miranda v. Arizona decision which gave rise to the famous Miranda warning: You have the right to remain silent ... the Supreme Court of the United States decided that it extended to pre-arrest police interaction, too. Basically, someone suspected of wrongdoing has the right not to talk at all.

Silence, though, should never be equated with guilt. James Duane, professor of law at Virginias Regent University and author of You Have the Right to Remain Innocent, says that assuming anyone who refuses to speak is guilty is monstrously false.

Still, technically, impeachment managers were allowed to make this argument called an adverse inference. Its allowed in civil proceedings and in some criminal proceedings. And in 2013, the Supreme Court confounded the general understanding of the Fifth Amendment right not to testify against oneself: In Salinas v. Texas, the court held that simply staying silent and not expressly mentioning the phrase Fifth Amendment doesnt necessarily confer constitutional protection. Through a spokesperson Trump didnt use the talismanic phrase Fifth Amendment, but these arent strictly criminal or civil proceedings, so it ultimately didnt matter.

But the fact that this tactic is legal in certain settings doesnt mean that calling out Trumps absence is right. Legal experts have panned the Salinas opinion, mostly because a suspect who ham-handedly invokes his Fifth Amendment right may lose that protection and his failure to speak can be used against him, which was never the intention of the right. Lawrence S. Goldman, co-founder and past president of the New York State Association of Criminal Defense Lawyers, called the Salinas decision bizarre and unrealistic.

Remaining silent is practical; its one way to reduce the number of false convictions that abrade the criminal legal systems reliability and integrity. The National Registry of Exonerations, a project of the University of California Irvine Newkirk Center for Science & Society, University of Michigan Law School and Michigan State University College of Law, found 27% of exonerees falsely accused and convicted of homicide gave false confessions. Even in the absence of these admissions, 182 other wrongful convictions were caused, at least in part, by misconduct in interrogating suspects. These miscarriages would have been impossible if the suspect refused to talk.

We shouldnt forget the Fifth Amendments place in the American experiment that the impeachment proceedings ultimately sought to preserve by insisting on accountability for everyone responsible for the Jan. 6 insurrection, even if one of those people was the president.

The Fifth Amendment severed our ties to the traditions of the English Courts of Star Chamber, inquisitorial tribunals that would drag an accused person before them without even telling him what he was suspected of and force him to talk, essentially getting him to make the case for the government. Framers of the Fifth Amendment envisioned an America where this wasnt permissible. The right it enshrines is essential to the freedom that the Capitol symbolizes and that free and fair elections allow to endure, and yet, the amendments now being twisted in ways that threaten that same freedom.

Even those opposed to the Fifth Amendment, believing it will solve more crimes through even more confessions, would agree that at the very least, the decision to use Trumps silence against him reveals the impeachment managers hypocrisy.

All nine of the impeachment managers co-sponsored the Justice in Policing Act. The bill aimed to bring more accountability to police misconduct.

While the Justice in Policing Act didnt address false confessions directly, the primary cause of these induced admissions is coercive interrogation techniques by police, which some experts call the modern equivalent to the rubber hose. (Richard A. Leo, Journal of the American Academy of Psychiatry and the Law Online September 2009). The right not to incriminate oneself is part of the reform they envision. Its hard to imagine any of these co-sponsors advising a civilian stopped by cops to spill everything lest they be viewed as guilty.

More people watched the second impeachment proceedings than the first; an average of 12.4 million viewers tuned in across CNN, Fox, MSNBC, ABC and CBS. Untold millions of them may be approached by police this year. According to data released by the Bureau of Justice Statistics in December, 28.9 million people experienced police-initiated contact in 2018. Suggesting that silence implies guilt does people who interface with law enforcement a great disservice.

No one should cast former President Trumps refusal to testify on his own behalf as evidence of culpability. Impeachment managers may have eroded the general understanding that choosing to keep ones mouth shut is still a valid and often wise decision.

Chandra Bozelko writes the award-winning blog Prison Diaries. Follow her on Twitter @ChandraBozelko and email her at outlawcolumn@gmail.com.

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A refusal to testify shouldnt be interpreted this way - Leominster Champion

Susan McCord|Augusta Chronicle

A Blythe city councilmans vote-buying case has been bound over to the Georgia Attorney General.

State Elections Board Chief InvestigatorFrances Watson told the board Wednesday that Daniel Martin was seen at a Blythe convenience store buying a vote for mayoral candidate Phillip Stewart.

Martin was seen purchasing a six-pack of Mikes Hard Lemonade and a pack of cigarettes for Jacob Odom, who was under 21 at the time, Watson said.

Martin is accused ofbuying Odom the items in exchange for a vote for Stewart in that days election on March 20, 2018, shesaid.

When the store clerk informed Blythe police, they located Odom in Martins vehicle.

Martin was indicted by a Richmond County grand jury for vote-buying on March 27, 2018.

Martin did not participate in the Zoom meeting Wednesday due to pending criminal matters, an investigator stated.

Attorney Rachel Ray spoke on Martins behalf, saying the store clerk, Judy Cordova conveniently failed to report she was in a relationship with one of the same police officers until a later trial and that Odoms testimony continued to change.

Ray attributed the lack of progress on Martins indictment was because the evidence is so weak and lacking.

Augusta Circuit District Attorney Jared Williams office recently referred Martins indictmentto the attorney generals office to be referred to another judicial circuit because Williams was Martins attorney before winning the Nov. 3 election.

Martiniwon a three-way race for city council in November.

With the 2018 indictment pending, Martin would challenge Cordova in a May 2018 special city council election that ended in a tie.

During the runoff campaign, Cordova and others criticized Martins plethora of social media posts referencing white genocide a Muslim takeover and other statements they deemed offensive. Cordova won the runoff.

At the later trial was held on former councilwoman Cynthia Parhams challenge of her four-vote loss to Stewart for mayor based on the vote-buying allegation and several other challenged votes.

While testifying, Martin invoked his Fifth Amendment right against self-incrimination numerous times.

Stewart, represented by former U.S. attorney Ed Tarver, prevailed in the challenge and the verdict was upheld by the Georgia Supreme Court.

At the bench trial, visiting judge Lawton Stephens said Parham failed to prove a sufficient number of illegal votes.

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Blythe vote-buying case referred to Georgia Attorney General - The Augusta Chronicle

The former husband of an events planner who appeared on TVs The Real Housewives of New York has pleaded the Fifth amid claims by his kids former au pair that he secretly recorded her for nearly two years catching her in the buff and between the sheets.

Wall Street investor Bennett Egeth the ex of RHONYs Jennifer Gilbert was sued by live-in nanny Daniela De Los Rios in December after the au pair allegedly discovered a camera secretly recording her in the home.

Egeth has been charged with unlawful surveillance in a pending related criminal case.

Egeth is now assert[ing] his privileges under the 5th Amendment of the United States Constitution due to the current prosecution in New York County Supreme Court relative to the facts in this case, the defendant wrote in an answer to De Los Rios lawsuit Thursday.

The Fifth Amendment gives a person the right not to say anything to authorities or the court on the grounds he might incriminate himself.

Egeth is asking a judge to toss out De Los Rios claims against him, court papers say, without going into detail.

His accusers lawyer is Charles Harder, who helped Hulk Hogan win a $140 million jury verdict over the publication of a sex tape nearly five years ago.

De Los Rios alleges that she lived in the estranged couples Tribeca house starting Jan. 18, 2019 and discovered a camera concealed in a digital clock in her room Aug. 26, 2020. She said she would sleep naked in the room and even had sex with her boyfriend there all of which could have been captured on camera.

She reported what she found to the police, who arrested Egeth a few days later. She claimed that both Egeth and Gilbert harassed her after reporting it.

Gilbert, who appeared on Season 3 of RHONY, was named in the suit but has not been criminally charged. She told Page Six in December that she had been separated from Egeth for seven years and divorced him last spring.

Harder said in a statement Friday, We look forward to seeing Bennett Egeth prosecuted to the fullest extent for his alleged crimes, which are horrific.

We also will be seeking tremendous damages against him, including punitive damages, in our civil action, Harder said.

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Ex-husband of 'RHONY' events planner pleads Fifth in Peeping Tom suit - Page Six

The U.S. Court of Appeals for the Ninth Circuit has declined to rehear the high-profile Juliana v. United States case, which has been followed by Environmental Law Monitor here, here, and here. Last January, the Ninth Circuit dismissed the case for lack of Article III standing, and last week, a little over a year after its decision ordering dismissal of the case, the court declined the plaintiffs motion for a rehearing.

The Juliana plaintiffs, a group of 21 then-minors, filed suit in the U.S. District Court for the District of Oregon in 2015, alleging the government violated their constitutional rights, specifically a claimed right under the Due Process Clause of the Fifth Amendment, to a climate system capable of sustaining human life. Juliana v. United States, 947 F.3d 1159 (9th Cir. 2020). Their complaint alleged that the governments continuing permission, authorization, and subsidization of fossil fuel use, despite being long-aware of its risks, caused various climate-change-related injuries to the plaintiffs, spanning from psychological harm to impairment of recreational interests, exacerbated medical conditions, and property damage. Id. at 1165.

The government first moved to dismiss the plaintiffs claims, but in April 2016, the district court denied the motion, finding that the plaintiffs had standing to sue, raised justiciable questions, and stated a claim for infringement of a Fifth Amendment due process right to a climate system capable of sustaining human life, which the court defined as one free from catastrophic climate change that will cause human deaths, shorten human lifespans, result in widespread damage to property, threaten human food sources, and dramatically alter the planets ecosystem. Id. The court also found that the plaintiffs had stated viable due process and public trust claims grounded in the Fifth and Ninth Amendments. Id.

Days before the case was set to proceed to trial in October 2018, the government moved for summary judgment and judgment on the pleadings. The district court granted the governments motions on the Ninth Amendment claim and part of the equal protection claim. However, the court maintained that the plaintiffs had standing to sue. An interlocutory appeal ensued.

In its January 2020 decision, the Ninth Circuit noted that Article III standing requires a plaintiff to have (1) a concrete and particularized injury that (2) is caused by the challenged conduct and (3) is likely redressable by a favorable decision. Id. at 1168, citing Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81, 120 S. Ct. 693 (2000); Jewel v. NSA, 673 F.3d 902, 908 (9th Cir. 2011). The court held that the district court had correctly found the injury requirement met, as at least some of the plaintiffs claimed concrete and particularized injuriesfor instance, one plaintiff claiming that he was forced to evacuate his coastal home multiple times due to flooding. Id. The court further held that the district court correctly found the causation element satisfied, for purposes of summary judgment, as the causal chain was sufficiently establishedplaintiffs alleged injuries are caused by carbon emissions from fossil fuel production, extraction, and transportation. Id. at 1169.

However, the court disagreed with the district courts analysis as to whether the plaintiffs claimed injuries were redressable by the court. The court noted that plaintiffs did not claim that the government had violated a statute or regulation, or denied a procedural right, nor did they claim damages under the Federal Tort Claims act. Id. Rather, the plaintiffs sole claim was that the government has deprived them of a substantial constitutional right to a climate system capable of sustaining human life, for which remedial declaratory and injunctive relief was sought. Id. The court noted that not all claims were redressable by a federal court, and therefore the inquiry as to redressability was two-fold, in that plaintiffs must establish that the relief is substantially likely to redress their injuries, and within the courts power to award. Id.

With regard to declaratory reliefthe plaintiffs request for a declaration that the government was violating the constitutionthe court held that this alone was not substantially likely to mitigate the plaintiffs asserted injuries. Id. at 1170. With regard to injunctive reliefplaintiffs request for an injunction requiring the government to cease permitting, authorizing, and subsidizing fossil fuels, and also prepare a plan to draw down harmful emissionsthe court found that it was beyond the power of an Article III court to order, design, supervise, or implement the plaintiffs requested remedial plan. Id. at 1171. Hinging its conclusion on the doctrine of separation of powers, the court found that the plaintiffs request would require the judiciary be policymaker, infringing on the roles of the executive and legislative branches. Id. While the court found that the plaintiffs had made a compelling case that action was needed, their case must be made to the political branches, or to the electorate: [t]hat the other branches may have abdicated their responsibility to remediate the problem does not confer on Article III courts, no matter how well-intentioned, the ability to step into their shoes. Id. at 1175.

In March 2020, the plaintiffs filed a petition for rehearing en banc. Amicus briefs were filed by members of Congress, and experts in the relevant fields of constitutional law, climate change, public health, and similar, but last week, on February 10, 2021, the Ninth Circuit upheld the January 2020 decision dismissing the case.

Our Childrens Trust, the non-profit law firm representing the plaintiffs, has released a statement that it plans to take the case to the U.S. Supreme Court, which is no stranger to the case, having ruled on prior motions to stay (here and here), but the firm has also asked the Biden administration Department of Justice for a meeting to discuss settlement options.

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Ninth Circuit Upholds Dismissal of Kids Climate SuitHeaded to the Supreme Court? - Lexology