Category Archives: Fifth Amendment

By Benjamin Morrell

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Law360 (October 5, 2020, 1:55 PM EDT) --

But some employers may object to participating in a trial conducted by videoconference for a variety of reasons, including the inability to effectively cross-examine investigative witnesses and the difficulty in presenting to the judge physical evidence that may be at issue, especially complex machinery and equipment.

In order to challenge these virtual settings, defense counsel may need to get creative. This article presents a constitutionally based option for effectively objecting to remote proceedings where workplace conduct gives rise to criminal charges.

Critical Background

In addition to its more widely known civil enforcement mechanisms, the Occupational Safety and Health Act includes criminal prohibitions. Section 17 of the act establishes criminal penalties for (1) willful violations of any standard resulting in an employee's death; (2) giving advance notice of an OSHA inspection; and (3) making false statements to OSHA.[1]

In addition to a hefty fine, a conviction under one of these provisions can lead to as many as six months in prison and if a defendant is convicted of a willful violation resulting in death a second or subsequent time, they may be imprisoned for up to a year.

Many states' occupational safety and health statutes contain similar criminal provisions. For example, North Carolina closely tracks the federal act but increases the maximum fine for a willful violation resulting in death if the deceased employee was under 18.[2] Because every state is different, it is critical to check the law in your local jurisdiction.

Generally applicable criminal laws may also come into play for certain workplace safety violations, like negligent homicide or manslaughter for deaths in the workplace. Moreover, the U.S. Supreme Court confirmed last year inGamble v. U.S. that a person can be prosecuted under state law and federal law in separate cases for the same conduct without violating the Fifth Amendment's double jeopardy clause.[3] As a result, prosecution under the federal OSH Act does not preclude subsequent prosecution under a state's similar laws.

Avenue for Objections: Confrontation Clause

While no employer welcomes criminal charges resulting from workplace conduct, such charges bring a unique opportunity for lodging an objection. That's because they trigger several constitutional protections, including the Sixth Amendment's confrontation clause, which provides the strongest basis for objecting to a virtual or remote trial.

According to the Supreme Court's 1988 decision in Coy v. Iowa, "the Confrontation Clause guarantees the defendant a face-to-face meeting with witnesses appearing before the trier of fact."[4] InMaryland v. Craig in 1990, the Supreme Court emphasized that physical presence is one of the core aspects of confrontation; it "ensur[es] that evidence admitted against an accused is reliable and subject to the rigorous adversarial testing that is the norm of Anglo-American criminal proceedings."[5]

Courts have consistently thrown out convictions where defendants were deprived of their face-to-face confrontation rights. This has often taken place in the form of prosecution witnesses testifying remotely.

For example, in U.S. v. Yates in 2006, the en banc U.S. Court of Appeals for the Eleventh Circuit vacated a defendant's conviction after the government called two witnesses who lived in Australia and had them testify via live, two-way video conferencing.[6] In doing so, the court declared that the "Sixth Amendment's guarantee of the right to confront one's accuser is most certainly compromised when the confrontation occurs through an electronic medium."[7]

This right is not unlimited, however. Courts may excuse a witness from testifying in person if two conditions are satisfied. First, the witness's absence must be necessary to advance an important public policy. Second, the reliability of the remote testimony must be otherwise assured.

In Craig, the Supreme Court held that "a State's interest in the physical and psychological well-being of child abuse victims may be sufficiently important to outweigh, at least in some cases, a defendant's right to face his or her accusers in court."[8] The court indicated that this requirement is not easily met, and the lower courts have reliably rejected prosecutors' requests to have witnesses testify remotely based solely on the expense and inconvenience of traveling to the court.

Last year, the U.S. District Court for the Eastern District of North Carolina held inU.S. v. Rivera that "the inconvenience to the witness of traveling to Raleigh from Hawaii a second time" did not "rise to the level of an important public policy" under the Craig test.[9]

Applying Constitutional Standards in a Coronavirus World

Courts across the country are currently grappling with the application of Craig to the COVID-19 pandemic. The key question: whether the government's interest in limiting the spread of the coronavirus qualifies as an important public policy to justify witnesses testifying remotely in criminal trials.

In New York City, the U.S. District Court for the Southern District of New York recently held in U.S. v. Donziger that under "the Craig standard, there is no question that limiting the spread of COVID-19 and protecting at-risk individuals from exposure to the virus are critically important public policies."[10] There, the witness in question was in his 70s and suffered from a medical condition that increased the "risk of dangerous complications should he contract COVID-19."

The court allowed him to testify "via live video rather than in person, which would require boarding a plane and spending at least two weeks in New York City." The court then approved the government's proposed procedure of having the witness testify "under oath from a federal court in Texas in the presence of court personnel using a two-way video system," allowing the court, the defendant and his attorney to interact with him in real time.

But in U.S. v. Crittenden, the U.S. District Court for the Middle District of Georgia recently went a different route setting an in-person jury trial and requiring "all persons entering the courtroom, including parties, lawyers, witnesses, jurors, and spectators ... to wear masks that cover their nose and mouth."[11]

While the government expressed concern that this lesser requirement may violate the confrontation clause by preventing some aspect of face-to-face confrontation the court found it "necessary to further an important public policy: ensuring the safety of everyone in the courtroom in the midst of a unique global pandemic."

Conclusion

These two cases highlight the differences in available approaches and the factors upon which they are based. For one thing, New York City has been a notable hot spot for COVID-19 infections, while the more rural Columbus, Georgia, has seen a relatively low number of cases.

For another, the witness in question in the New York case was elderly and had a preexisting health condition both risk factors for an increased severity of COVID-19 symptoms while the court in the Georgia case made no mention of any witnesses that were acutely at risk.

Once a court determines that limiting the spread of the coronavirus qualifies as an important public policy under the Craig test, it will then consider whether a particular witness's absence is necessary to further that interest. As case law on this issue develops, courts will likely consider at this step the infection rate in its locale and the profile of the particular witness whose remote testimony the government seeks.

Returning to the OSHA context, it is important to note that the confrontation clause applies only in criminal prosecutions. Courts have consistently "rejected the argument that OSHA civil penalty assessment proceedings violate Sixth Amendment protections."[12]

Thus, if a business finds itself subject to a civil enforcement action, it cannot rely on the confrontation clause to object to a remote trial. The good news, however, is that employers do not face the risk of going to prison if their civil case goes poorly.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] 29 U.S.C. 666 (e)(g).

[2] N.C. Gen. Stat. 95-139(a)(c) (2018).

[3] Gamble v. United States , 139 S. Ct. 1960 (2019).

[4] Coy v. Iowa , 487 U.S. 1012, 1016 (1988).

[5] Maryland v. Craig , 497 U.S. 836, 846 (1990).

[6] United States v. Yates , 438 F.3d 1307 (11th Cir. 2006) (en banc).

[7] Id. at 1315.

[8] Craig, 497 U.S. at 853.

[9] United States v. Rivera , 372 F. Supp. 3d 311, 31617 (E.D.N.C. 2019).

[10] United States v. Donziger , No. 11-CV-691 (LAK), 2020 WL 5152162, at *2 (S.D.N.Y. Aug. 31, 2020).

[11] United States v. Crittenden , No. 4:20-CR-7 (CDL), 2020 WL 4917733, at *5 (M.D. Ga. Aug. 21, 2020).

[12] Savina Home Indus., Inc. v. Sec'y of Labor , 594 F.2d 1358, 1366 (10th Cir. 1979) (collecting cases).

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A Primer On Objecting To Virtual OSHA Trials - Law360

There are 27 amendments.

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The US Constitution was written in 1787 and ratified in 1788.

In 1791, the Bill of Rights was also ratified with 10 amendments.

Since then, 17 more amendments have been added.

The amendments deal with a variety of rights ranging from freedom of speech to the right to vote.

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The Constitution of the United States was written in 1787 by 55 delegates at a Constitutional Convention. Its purpose was to revise the weaker Articles of Confederation that had held the 13 states together after they gained independence from Britain.

Before it could be put into place, it had to be ratified by conventions from each of the 13 states, where the delegates argued both for and against the binding document. One of the main arguments against the ratification of the US Constitution was the lack of specified individual rights and liberties, so James Madison drafted a set of amendments to add to the US Constitution if it was ratified.

By June 1789, Madison submitted 12 amendments, though only 10 were passed and ratified in 1791 as the Bill of Rights.

Since then, 17 more amendments have been passed and ratified by the process laid out in Article 5of the US Constitution, where an amendment is proposed by either a two-thirds vote in Congress or a national convention of two-thirds of the states.

Those proposals are then ratified by either three-fourths of the state legislatures or by state conventions in three-fourths of the states to become amendments added to the US Constitution.

Here are the 27 amendments to the US Constitution ranging from personal rights to procedural laws including their history and the lasting impact theyve left on the United States:

The First Amendment famously protects freedom of speech.

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Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

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The First Amendment lays out five basic freedoms: freedom of religion, freedom of speech, freedom of the press, freedom of assembly, and the freedom to petition the government.

These rights were important to establish because they ensured that individuals could think, speak, and act without fear of being punished for disagreeing with the government.

In addition to being arguably one of the most important amendments, the First Amendment is still very much at the center of Americas political discourse today from questioning whether or not Twitter bots have First Amendment rights to whether or not the White House banning a CNN reporter violates the Constitution.

The Second Amendment deals with the right to bear arms.

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A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

The Second Amendment supports the right to own firearms, though its been hotly debated whether the Constitutions framers only had in mind the militias use of guns or if any citizen had a constitutional right to a firearm (this confusion is largely due to the four commas in the amendment that are grammatically confusing).

It has since become one of the most politicized amendments. In 2008, the Supreme Court ruled 5-4 that US citizens have a constitutional right to keep a loaded handgun at home for self-defense. Justice Antonin Scalia, who wrote the majority decision, did lay out a number of provisions:

Nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

The decision was largely seen as a major win for those who believe the amendment refers to individuals rights to bear arms.

The Third Amendment prohibits forcing citizens to provide lodging for soldiers.

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No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

The Third Amendment prohibits the government from forcing citizens to give lodging to soldiers in their homes without permission. Before the Revolutionary War, Americans were required to give food and lodging to British soldiers as part of the 1765 Quartering Act.

According to the National Constitution Center, the Third Amendment is the least litigated in the Bill of Rights and the Supreme Court has never decided a case based on it.

The Fourth Amendment deals with search and seizure.

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The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The Fourth Amendment prevents the government or police from searching or seizing the homes, belongings, or bodies of citizens without probable cause or a warrant.

One of the most significant impacts of the Fourth Amendment was in the case of Weeks v United States (1914) when the Supreme Court decided that evidence taken in violation of the Fourth Amendment could not be used in court, which is called the exclusionary rule.

The Fifth Amendment is the source of the common phrase, I plead the Fifth.

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No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

The Fifth Amendment gives people accused of crimes a variety of rights and protections, including: the right to a grand jury indictment for felony offenses in federal court, the restriction on double jeopardy (being put on trial for the same crime after being found not guilty), protection against forced self-incrimination, the guarantee of due process of law and the prevention of the government taking private property for public use without proper compensation.

The most significant Supreme Court decision relating to the Fifth Amendment outside of criminal trials, according to the National Constitution Center, was Miranda v Arizona (1966), where the Supreme Court decided that police must give criminal suspects a set of warnings before they can be questioned. This is called their Miranda rights. These rights are in direct relation to the self-incrimination clause of the Fifth Amendment.

The Sixth Amendment includes the right to a speedy trial.

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In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

The Sixth Amendment guarantees people accused of a crime receive fair and accurate criminal proceedings, including: the right to a speedy, public trial by jury from the area where the crime was committed, the right to confront and question witnesses against the accused, the right to subpoena witnesses and have them testify at trial, and the right to a lawyer.

Although criminal institutions in America have changed since 1791 and something like a speedy trial could actually mean years in todays court system, the Sixth Amendment sets a standard for justice and criminal proceedings, particularly in specifying the rights of those accused of crimes.

The Seventh Amendment deals with jury trials for civil cases involving property worth more than $20.

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In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

The Seventh Amendment promises the right to a jury trial for civil cases that involve property worth more than $20. Even though criminal cases that go to trial always have juries, civil cases rarely do.

According to the National Constitution Center, jury trials for civil cases were an important way to protect against biased or corrupt judges. However, juries only decide less than 1% of civil cases filed in court today.

The Eighth Amendment prevents the government from imposing cruel and unusual punishment on criminal defendants.

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Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

The Eighth Amendment prevents the federal government from imposing excessive bail and inflicting cruel or unusual punishment on criminal defendants.

Some, including the American Civil Liberties Union, argue that the death penalty is a violation of the Eighth Amendments ban on cruel and unusual punishment.

The Ninth Amendment establishes that people have additional rights, even if they are not included in the US Constitution.

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The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

The Ninth Amendment essentially just clarifies that even though the US Constitution and the Bill of Rights names certain rights, that doesnt mean that people dont have other rights not specifically included in the US Constitution.

One of the supporters of the US Constitution, James Wilson, worried that by naming or enumerating specific rights, any powers not mentioned would be assumed to belong to the federal government, so the Ninth Amendment makes it clear that is not the case.

The 10th Amendment helps keep the federal government limited.

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The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

The 10th Amendment leaves any powers not specifically assigned to the federal government to each state or to the people. This amendment protects against the possibility of the national government assuming powers that have not already been assigned to it and is greatly important to keep the federal government limited as the US Constitution framers intended.

The 11th Amendment is the only amendment related to the judicial branch of the government.

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The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

The 11th Amendment prevents federal courts from hearing lawsuits against states, which changes part of Article III, Section 2 of the US Constitution. It was passed by Congress on March 4, 1794, and ratified on February 7, 1795.

The proposal for this amendment was introduced one day after the Supreme Court ruled that an individual could sue a state in federal court in the case of Chisholm v Georgia (1793). Today, these lawsuits are tried in state courts. This is also the only amendment related to the judicial branch of the government.

The 12th Amendment changed the presidential election process.

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This is a long one:

The Electors shall meet in their respective states and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate;

The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;

The person having the greatest Number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in the case of the death or other constitutional disability of the President.

The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.

The 12th Amendment which was passed by Congress on December 9, 1803, and ratified on June 15, 1804 changed the presidential election process as laid out in Article II, Section 1 of the US Constitution and fixed several problems that came up because of the development of political parties and how that affected the electoral college.

The 12th Amendment was passed in response to a tie vote in the 1800 election between Thomas Jefferson and Aaron Burr. However, the 20th Amendment, ratified in 1933, changed the dates of presidential terms and Congressional sessions.

The 13th Amendment freed all slaves and indentured servants throughout the United States.

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SECTION 1

Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

SECTION 2

Congress shall have power to enforce this article by appropriate legislation.

The 13th Amendment passed by Congress on January 31, 1865, and ratified on December 6, 1865 abolished slavery and superseded a part of Article 4, Section 2 of the US Constitution, which set out that fugitive slaves be returned to their owners.

President Abraham Lincolns Emancipation Proclamation, which was issued on January 1, 1863, only freed slaves from the Confederate states that had seceded. The 13th Amendment was able to free all slaves and indentured servants throughout the country.

It did not, however, grant black Americans the right to vote.

The 14th Amendment defines what it means to be a citizen of the United States and also protects civil rights.

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Realizing the 13th Amendment didnt go far enough, the 14th Amendment was passed by Congress on June 13, 1866, and ratified on July 9, 1868:

SECTION 1

All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

SECTION 2

Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

SECTION 3

No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

SECTION 4

The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

Read more:
The US Constitution has 27 amendments that protect the rights of Americans. Do you know them all? - Report Door

(Photo by Alex Wong/Getty Images)

* A federal judge has refused to dismiss a lawsuit filed by the federal government against John Bolton for publishing a memoir without prior approval. Guess the government doesnt celebrate the guys entire catalog [New York Times]

* A group of former Department of Justice lawyers are accusing Attorney General Barr of illicitly helping President Trump win reelection. [Hill]

* A Texas judge who admonished and grabbed at a paralegal for sitting in a seat designated for lawyers has been disciplined. [Texas Lawyer]

* Check out this primer on the Twenty-Fifth Amendment, which is being discussed after President Trump announced he has COVID-19 earlier this morning. [NPR]

* A new lawsuit accuses Kris Jenner of committing sexual harassment against a former bodyguard. [Fox News]

* A wrongful death lawsuit has been filed after a fan suffered a heart attack at a Philadelphia Eagles game. If he ate any Philly cheesesteaks, that probably also didnt help [Philadelphia Business Journal]

Jordan Rothman is a partner of The Rothman Law Firm, a full-service New York and New Jersey law firm. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at jordan@rothmanlawyer.com.

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Morning Docket: 10.02.20 - Above the Law

Sensitive audits present the tax practitioner with unique challenges. They require the exercise of judgment and discretion, as well as an understanding of administrative procedure and even a command of constitutional and evidentiary rules. At times, they may also require that the practitioner carefully balance duties to a client with their own ethical and legal obligations.

Sensitive audits come in several forms. An eggshell audit, for instance, is a civil audit that has the potential to turn criminal. There are lurking issuespotential tax fraud or evidence of other legal violations such as money laundering or structuringthat the auditor may discover. A reverse eggshell audit involves a civil tax audit that is being conducted alongside a parallel criminal investigation. Sensitive audits may also involve undisclosed parallel investigations by other state or federal agencies.

Such audits often raise a host of issues. For instance, should the taxpayer file an amended return to correct prior mistakes? What about the obligation to file a current year return while the audit is ongoing? When does the taxpayer have a valid privilege against providing certain information or documents, and what steps or events might inadvertently waive that privilege? What are the signs that a taxpayer may have been referred criminally? Eggshell audits often bring these questions and others to the forefront.

Amended Returns, Current Returns, and Admissions

The question of whether to file an amended return is one that frequently surfaces in the context of sensitive audits. The decision is one that should be analyzed carefully. An amended return filed after an audit or investigation has begun will not remove tax fraud that exists with respect to an original return, although in certain circumstances an amended return may be a factor that potentially militates against a criminal prosecution or helps show a lack of willfulness. An amended tax return, or any tax return for that matter, is a sworn statement filed by a taxpayer under penalty of perjury. It can therefore be used as an evidentiary admission against the taxpayer, perhaps even relieving the government of the burden to produce other (more difficult to obtain) evidence that may be necessary to successfully bring a criminal case.

What about returns that come due during an audit? A pending audit or even a criminal investigation does not excuse a failure to file a current return, even where that return would require disclosures that make it clear that a prior return that is under audit was not filed correctly. It is a crime to willfully fail to file a tax return, and tax representatives have an ethical obligation under Circular 230 to advise a client of this requirement and the potential penalties for failing to do so. As a practical matter, it will often be advisable to obtain an extension of the deadline in order to buy time and to learn more about the focus of the audit. In some circumstances, a taxpayer may need to file a so-called Fifth Amendment return, a tactic that must be approached carefully. In doing so, taxpayers cannot, for example, make a blanket Fifth Amendment claim over their entire return, but instead must assert the privilege on an item-by-item basis. A failure to properly file such a return may compound existing problems, potentially subjecting the taxpayer to frivolous return penalties or even criminal prosecution for willfully failing to file a return.

Parallel Proceedings and Tweel-Violations

Sensitive audits inevitably involve the potential for parallel proceedings, which raise unique concerns. Courts have developed guidelines to police the IRS in this context, particularly when it conducts parallel civil and criminal tax investigations. Perhaps the seminal case in this arena is United States v. Tweel. Under that case and its progeny, simultaneous civil and criminal audits are not prohibited. Nor does the government have any outright duty to inform a taxpayer that matters arising in a civil audit could be used in a criminal investigation. At the same time, however, the IRS may not use its civil arm to conduct or further a criminal investigation and employ deceit, trickery or misrepresentation. That means, for instance, that an auditor cannot lie when asked if he or she has made a criminal referral or whether a parallel criminal investigation is ongoing. Violations of this ruleso-called Tweel violationscan lead to the suppression of evidence on Fourth Amendment grounds.

The Privilege

One of the first steps in properly handling a sensitive audit is to assess and ensure the preservation of the privilege. Does the client, for example, have information or possession of documents that could expose the client to criminal sanctions? If so, that information needs to be assessed and steps should be taken to avoid a waiver of the privilege. Taxpayers faced with an audit interview may need to consider invoking the privilege with respect to questions that would elicit incriminating responses. Where the IRS seeks documents that contain incriminating information (or where their very existence may prove incriminating), the act-of-production privilege may protect a taxpayer from being compelled to produce the documents. At the same time, the applicability of countervailing doctrines, such as the required records doctrine or the collective entity doctrine, should also be analyzed. Practitioners and their clients should carefully vet the risks and benefits of asserting a privilege, as well as the proper manner for doing so.

In the process of vetting sensitive issues, such as the very existence of a privilege, practitioners should be careful to ensure that those discussions themselves are privileged, lest the practitioner inadvertently convert him or herself into a key witness against the client that can be compelled to disclose the content of those discussions. Many an accountant has been compelled to provide documents and testimony against their client because communications that they believed to be privileged were, in fact, not. For example, United States v. Spencer, 700 F.3d 317 (8th Cir. 2012) presents a case where the accountant-CPA was required to testify against his client at the clients criminal trial. As a matter of risk management, practitioners handling sensitive audits should have a firm grasp of the limits of the accountant-client privilege.

There are many misconceptions about the scope of the federal accountant-client privilege under Section 7525 of the Internal Revenue Code. In fact, many are not aware that the accountant-client privilege is not available where is needed most: It does not apply in criminal proceedings. Nor, for that matter, does it apply in other proceedings outside the federal tax contextfor example, divorce, SEC, or even state tax proceedings. In fact, courts have held that it does not even apply to communications engaged in for the purpose of preparing a tax return, raising the question of what exactly it does protect. Against this background, care must be taken to protect communications about sensitive matters.

Despite the extremely limited scope of the federal accountant-client privilege, an accountant can often be cloaked with an actual common law attorney-client privilege through the use of a Kovel arrangement. Under United States v. Kovel, the federal case that lends its name to the arrangement, an attorney may engage an accountant to assist with the audit and thereby extend the more robust attorney-client privilege to the accountant. Where properly employed, this tool brings an accountant under the umbrella of the attorney-client privilege and protects accountant communications, helping to ensure that the accountant cannot later be compelled to testify against the client.

Beware of Potential Pitfalls

Sensitive audits often create potential pitfalls for the representative themselves. The practitioner must always take steps to ensure that they abide by both governing ethical rules and statutes. For instance, a practitioner cannot make a false representation to an IRS agent, but at the same time may be prohibited from disclosing privileged information without the clients consent. Practitioners who violate these rules (and others) risk disbarment from practice before the IRS or, worse yet, committing a federal crime themselves. Among the more commonly encountered criminal statutes that have been turned against practitioners in this context, Section 7206(2) of the Internal Revenue Code makes it a crime to aid or assist in the presentation of a false or fraudulent document. Similarly, Section 7212, a broadly-worded statute, makes it a crime to attempt to obstruct or impede the administration of the Internal Revenue laws. The government will use these provisions and others to bring criminal charges against practitioners where it believes a violation exists. Practitioners must therefore take all necessary steps to ensure that they abide by any governing rules throughout the proceedings. This requires a more concerted and proactive effort than may generally be necessary outside of the sensitive-audit context.

The Fraud Development Process Generally

When a field auditor uncovers indicators of fraud, IRS procedures require the auditor to meet with his or her group manager and, where the manager concurs, to initiate contact with a Fraud Technical Advisor (FTA). The FTA plays a central role in the development of potential fraud cases, and is involved in all cases with potential criminal fraud or civil fraud penalties. If the auditor, group manager and FTA agree that there is a potential for fraud, the auditor prepares Form 11661, Fraud Development Recommendation Examination, the case is placed in fraud development status, and a fraud development plan is formulated.

If an auditor subsequently identifies affirmative acts of fraud, the auditor is required to suspend examination activity without disclosing the reason for the suspension. Radio silence (or an auditors abrupt cancellation of a scheduled meeting or extended failure to respond) can thus imply a potential criminal referral.

If criminal criteria are met, the FTA will ultimately recommend a referral to the IRS Criminal Investigation Division (CI), and the auditor will refer the case through the FTA to CI via Form 2797, Referral Report of Potential Criminal Fraud Cases. Shortly thereafter, the CI special agent assigned to the case will initiate a conference with the auditor, his/her group manager, the supervisory special agent, and the FTA to review the evidence gathered to support the charges. The conference will cover a number of issues that bear on CIs decision whether to accept the referral, including the amount of the additional tax due, the flagrancy of the alleged violation, any public interest in the matter, and the deterrent effect that would be achieved from proceeding. Generally, within 30 days of this conference, the same group will confer again to discuss CIs decision to accept or decline the referral.

Badges of Fraud

In developing fraud cases, auditors look for indicators of fraudknown as badges of fraudto establish fraudulent behavior. Most fraud cases involve individuals and business taxpayers with poor or nonexistent internal controls or a lack of separation of duties, but tax fraud can occur in many contexts. While by no means an exhaustive list, some of the common badges or indicators of fraud that the IRS looks for include the following: Omitting specific items where similar items are included; omitting entire sources of income; an inability to explain substantial increases in net worth; inadequately explaining dealings in large sums of currency; dealings in cash; failing to file a tax return, especially for a period of several years, despite evidence of substantial amounts of taxable income; claiming fictitious or substantially overstated deductions; claiming substantial business expense deductions for personal expenditures; providing false or altered documents; keeping multiple sets of books; failing to keep adequate records; the existence of false book entries or alterations, back-dated documents, or false invoices; variances between the tax return and books; inclusion of income or deductions in the tax return of a related taxpayer when tax rate differences are a factor; the use of secret bank accounts; conducting business transactions in false names; making false statements; attempting to obstruct the examination; failing to make full disclosure; holding assets in the name of others; and a pattern of consistent failures to report income over multiple years. Again, this is only a partial list of the potential indicators of fraud that the IRS looks to, but where any such indicators exist, a taxpayers risk of criminal referral may increase.

Signs of a Criminal Referral

At all times during the audit, a practitioner should remain alert to signs that the civil audit may have gone criminal. The signs will vary depending on the context and the nature of the case. However, there are several indicators that have traditionally been signs that a potential referral may have taken place or may be imminent. For instance, where a revenue officer copies extensive documents or requests original documents rather than copies, these may be signs that the auditor is building the basis for a referral. If the agent focuses on intent-based questions, such as what the taxpayer knew or why certain items were deducted, this may also be a sign. Other signs include excessive interest or focus on sensitive transactions, efforts to obtain information from third parties that could have easily been obtained from taxpayer records, seeking to meet with the taxpayer more than once, requesting sworn affidavits from the taxpayer or third parties, conducting a large number of third-party interviews, and questions about the taxpayers lifestyle and financial status. Of course, a visit from a CI special agent is the ultimate sign that a civil audit has turned criminal.

Conclusion

Sensitive audits require a unique skillset and knowledge base. In order to navigate the process and maximize a clients prospect for success, the practitioner must be able to identify trouble spots ahead of time and assess any applicable procedural rights, as well as formulate an adaptive strategy. Throughout the process, the practitioner must be attuned to a host of subtle signs and clues, and be able to identify the opportunities to help steer the audit in the right direction. And, of course, along with a firm grasp of the background principles and administrative processes, the practitioner must fully understand, and always remain mindful of, their own ethical and legal obligations.

Originally published inTodays CPA - July/August 2017.

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Representing Taxpayers in Sensitive Audits: A Look at the Fundamental Challenges of an Eggshell Audit - JD Supra

We are hearing a lot about the 25th Amendment to the United States Constitution and that it may have to be used in the current presidential crisis. It is not well known that a 25-year-old son of Irish emigrants from the Bronx wrote most of it.

The 25th amendment allows the President to appoint a Vice President whenever that office falls vacant, allows an incapacitated President to step aside temporarily without forfeiting the office and provides a mechanism whereby the Vice President, upon a majority vote of the Cabinet, may declare the President incapacitated and serve as Acting President until he recovers.

Professor John Feerick is the former Dean of Fordham Law school, a highly respected lawyer who was called on in huge arbitration cases but is best known by far for his pioneering work on the 25th amendment.

Truly, the quietly spoken son of Mayo has done the state some service. His seminal book From Failing Hands: The Story of Presidential Succession is the core work, so well-argued it was nominated for a Pulitzer Prize when it was released.

Readers may think succession issues can easily be resolved yet as recently as 1963 when President Kennedy was assassinated there was no mechanism to appoint a vice president once Lyndon Johnson stepped up to the presidency.

There was also no mechanism if Kennedy had not been killed, but had been left in a coma and needed to be replaced. The amendment was clearly long overdue.

The amendment has proven vital since it was passed in 1967.

Richard Nixon, with Watergate looming and Vice President Spiro Agnew, forced to resign in an unrelated scandal, chose Gerald Ford under the 25th amendment to become Vice President. Ford later used the amendment when he became president to appoint Nelson Rockefeller as his VP.

The amendment has been used by Ronald Reagan, handing over his powers temporarily to the VP George Bush Senior after being shot. It was also used by George W. Bush when he underwent surgery, handing temporary control to VP Dick Cheney.

All in all, it has been used six times since it was passed 50 years ago, a sure indication of how important a piece of legislation it was.

Modest to a fault, Professor Feerick, 80, waves away the credit, but there is no doubt he was at the heart of creating the vital amendment. President Lyndon Johnson asked him to the signing in the Oval Office, a moment he cherishes deeply, though he just made it after a delayed plane flight.

About the amendment he states:

The Twenty-fifth Amendment is the product of extensive debate and discussion, in which full account was taken of the history of presidential succession and the many worthy suggestions offered for improvements in the succession framework. The amendment provides an approach to presidential succession which allows for an effective transfer of power in all cases of presidential inability, Feerick concluded.

Even if he had never written the amendment Feerick would paint a striking picture of an amazing success story for a son of Irish immigrants.

From the poor farmlands of Mayo to the heights of the legal profession in America it has been quite a journey for Feerick and his family.

His mother Mary Boyle arrived from Mayo in 1928, his father John Feerick a year later.

It was not an auspicious time after the stock market crash of October 1929, but the young Irish couple, who met at an Irish dance hall, made the best of it.

Im sure they never dreamed their son would go on to such amazing heights as Dean of Fordham Law School. There is also the Feerick Center for Social Justice, which works with students, alumni, lawyers, and community volunteers to connect low-income New Yorkers to the legal resources they need and cannot afford.

During his term, he became editor of the Fordham Law School Journal. A controversial student election where the winner resigned and there was no obvious successor piqued his interest in presidential succession races.

One week before the Kennedy assassination in November 1963, Feerick had written a scholarly essay on presidential succession. When Kennedy died and it became apparent there was no provision for a Vice President, Feericks article became the focus of legal scholars, politicians and public alike. A constitutional minefield had suddenly opened up and action was needed urgently.

The new President, Lyndon Johnson, had known health issues, and the next two people in line for the presidency were 71-year-old John McCormack (the Speaker of the House) and Senate Pro Tempore Carl Hayden, who was 86 years old.

Suddenly the 25-year-old kid from the Bronx found himself advising the American Bar Association as it hurriedly determined what action should be taken on presidential succession.

Later, he was the key advisor to the Senate Judiciary Subcommittee and its chairman, Senator Birch Bayh of Indiana as the 25th Amendment was drafted.

They were very conscious that eight Presidents died in office prior to the 25th Amendments ratification on Feb. 10, 1967 four from illness and four by assassination. Several times constitutional crises had just been averted.

The need to set firm parameters on presidential succession was never greater. Feerick, though a young and untried lawyer, proved more than equal to the task. It was the first of his great contributions to the betterment of society.

His immigrant parents would surely be very proud. As for John Feerick even today his sense of duty is palpable. The old immigrant community values are those he still holds dear: hard work, sharing, giving back. John Feerick has done his share.

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Vital 25th Amendment the work of an Irish emigrant's son - IrishCentral

A viral video claims that one can use the Fifth Amendment to get out of completing the census. This is false.

Is a viral video claiming that the Fifth Amendment can be used to get out of doing the Census legit?

No. The Fifth Amendment protects people from incriminating themselves. However, the information provided in a census form would not incriminate someone. For that reason, the Fifth Amendment doesn't apply, according to legal experts.

Peter J. Smith, The George Washington University Law School

A viral video, published in 2010, has popped up yet again as people fill out their 2020 census forms. In the video, the narrator claims that people can choose not to answer questions on the census, simply by writing Fifth Amendment instead.

"As you can see here," the narrator said. "I've actually written in Fifth Amendment as each answer."

The Verify team turned to legal expert Peter J. Smith, a law professor at The George Washington University, to get his response to this viral video.

"I think the answer is no," Smith said.

Smith pointed out that the Fifth Amendment protects people from self incriminating, something which doesn't relate to the Census questions.

"Writing Fifth Amendment isn't some sort of magic solution," he said. "That would avoid having to answer questions that the government calls mandatory."

Michael C. Cook Sr. from the Census Bureau agreed, adding that filling out the census is important because it can decide voting power and funding for the next decade.

"I'm talking about funding for schools," he said. "Funding for roads, funding for health care."

For more information on the census, visit here.

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VERIFY: No, the Fifth Amendment can't be used to opt-out of the census - KENS5.com

The Trump Organization and its legal teamhave stalled, withheld documents, and instructed witnesses, including Eric Trump, to refuse to answer questions under oath,announced New York Attorney General Letitia James.Thats why weve filed a motion to compel the Trump Organization to comply.

The allegation that the Trump Organization, Trumps personal business and one also employingthe rest of Trumps nonprofit-embezzling family, inflated their alleged assets in order to secure new loans, have been credibly swirling for years. The accusations gained new potency when longtime Trump lawyer Michael Cohen testified to Congress that yes, actually, Trump had very much been doing exactly that. Attorney General James tells the court in her filing that the OAG determined that Eric Trump likely possessed information relevant to OAGs inquiryfollowed by several blacked-out linesand served a subpoena to Eric in late May. Eric originally agreed to be interviewed, only to later change his mind; that, too, might have been intended as a stalling tactic.

To clarify, note again that this is a New Yorkstateinvestigation. Its separate from the unknown Trump-linked investigations still percolating inside the Department of Justice, in the Southern District of New York, the ones William Barr has dedicated himself to tamping out as apparent top leadership priority. Presidents cannot pardon state crimes.

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Is Eric Trump invoking the Fifth Amendment to dodge testifying about Trump Organization finances? - AlterNet

The president of the United States is relentlessly threatening the right of citizens to exercise their right to vote. He is also saying that he might not leave office if he loses the election, and that the election is "rigged" unless he wins. He also spends most of his days watching television, raging, fulminating, lying, demanding loyalty of those around him, demeaning his political opponentsand trading in conspiracy theories, while creating chaos instead of a plan to addressa pandemic that could take300,000 American lives by the end of the year.

Is such a person fit for this office?Anyoffice?

As has been the caseevery single dayfrom the beginning of this horrific tweet-fest mockery of a presidency: It's 25th Amendment time.

No, of course it won't happen not with the loyalist, anti-democratic ideologues the president has methodically surrounded himself with in his cabinet, likely to this very purpose. But by any objective (i.e., non-cultist) view it should happen before the upcoming election is furtherthrown into chaos to frighten off voters.

It won't happen. But wewould fail our duty to this country if we did not pause to note this fearful moment in time, did not look again at the purpose of this critical amendment, and did not call out the Trump administration's cabinet members who failed to take this step to protect an election and save this democratic republic.

In "The Twenty-Fifth Amendment: Its Complete History and Earliest Applications," by John D. Feerick, the author notes that the framers of the Constitution did not spend much time at the Constitutional Convention in 1787 onthe subject of presidential succession:

They seem to have thought they handled the matter adequately by providing for the office of Vice President and by inserting in the Constitution the following clause on presidential succession:

"In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the same shall devolve on the Vice President, and the Congress may by Law provide the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Office shall act accordingly, until the Disability be removed, or a President shall be elected."

Thisvague language in the Constitution was unworkable in practice and hampered decisions in terms of both presidential inability and vice presidential vacancies. Feerick notes: "For the first 52 years of the existence of the presidency, our nation was remarkably fortunate. No President died in office, although three vacancies did occur in the vice presidency."

As to what constituted "incapacity" of a president, no one could really say. Andin an American tradition, this became a can that would be kicked down the road time and again after each crisis.

Questions on this score arose numerous times. There wasJames Madison, who in the summer of 1813 was "indisposed by illness" for weeks; James Garfield, who survived, incapacitated, for an excruciating 80 days after being shot; Chester Arthur, who was diagnosed with Bright's disease and suffered from "spasmodic nausea, mental depression, and indolence" and who, as a result, developed a very casual approach to his presidency, often not beginning work until noon or one o'clock (which sounds like someone we know); Grover Cleveland, who in the summer of 1893 took a cruise on a yacht and secretly underwent an operation to remove a cancerous growth on the roof of his mouth, which entailed removing a large portion of his upper jaw; William McKinley, who survived an assassin's bullet for about a week; Woodrow Wilson, who fell ill while on a speaking tour in late September 1919 and then, after returning to the capital, suffered a stroke that paralyzed the left side of his body; Franklin D. Roosevelt, who entered his fourth term in 1945 gravely ill and not able to function to his previous level, dying soon after; and Dwight Eisenhower, who had a heart attackin 1955, and then a strokein 1957.

Presidents will, due to ego or a sense of duty, often do anything to hide their incapacities from the public, and even their own cabinet members. Cleveland essentially disappeared for an entiresummer, undergoing two procedures and being fitted with an artificial jaw. (When a letter was published in thePhiladelphia Pressdetailing the operations, it was called a "hoax.") According to Feerick, the first operation took place "while Cleveland was unconscious and strapped to a chair propped up against the yacht's mast." Wilson's condition was hidden from the public, from Congressand from members of his cabinet. Feerick points out thatfrom that time "until the inauguration of Warren G. Harding on March 4, 1921, the country was without the services of an able President." Before running for his fourth term, FDR is said to have made his own new deal with his physician to simply not tell him any bad news.

The need for more clarity as to presidential succession was ultimately prompted by the assassination of John F. Kennedy and the need for a protocol for naming a new vice president once the current vice president had assumed the White Hous. Feerick writes: "Despite vacancies totaling more than thirty-seven years, no serious effort was made to devise a means for filling a vice presidential vacancy until after the assassination of President Kennedy."

The 25th Amendment, written and adopted in 1965 to address this issue, was ratified by the necessary 37 states in February 1967. But the question about what constitutes "inability" remained it was purposely not defined, allowing for interpretation of how a president could become unable to carry out his duties, including due to mental illness.

Sections 1 and 2 deal with succession of the vice president; sections 3 and 4, with the question of inability to carry out the duties of the office.

Section 3 allows for a president who is cognizant of his own impairment to personally inform Congress in writing that he is unable to carry out his duties. Perhaps one might stretch the interpretation of his writing to Congress. Mightthat include writingto the worldendless missives in ALL CAPS rife with misspellings, bad punctuationand excessive use of exclamation points, all of which pointto a level of derangementfar beyond the grammatical?

Seriously, we have a person in the office of the presidency who ismentally and temperamentally unfit for serving the office, as attested to by a petition that wassigned by 350 psychiatrists and mental health experts, and delivered to members of Congress in December 2019.

Yale Medical School professor Dr. Bandy Lee, one of the three authors of the petition (and a frequent interview subject at Salon), described Trump'scontinued embrace of conspiracy theories as actually a public health issue because of his ability to draw members of the public into a "shared psychosis at the national level."

Speaking of mental health experts, Mary Trump, who is the president's niece and a clinical psychologist, and who recently published the bestseller "Too Much and Never Enough: How My Family Created the World's Most Dangerous Man," has said in recent interviews that the best thing anyone could do for Donald Trumpwould be to remove him from office.

And it's not just mental health experts who are worried. National security experts are as well. Just hours before Joe Biden gave his acceptance speech at the Democratic Convention, 73 senior national security officials, nearly all of them Republican, attested to the unfitness of the current occupant of the White House.

In the infamous "Anonymous"2017 op-edpublished inThe New York Times, a senior Trump official wrote: "From the White House to executive branch departments and agencies, senior officials will privately admit their daily disbelief at the commander in chief's comments and actions. Most are working to insulate their operations from his whims."

But in the spinning wheel of the Trump administration, many of those officials are gone now,and it is not enough(norwas it ever) to try to shield the country from his worst impulses, which have both deepened and darkened. White supremacists and QAnon followers are just fine folks to him and he openly appeals to them. He and members of his campaign staff worked, sometimes gleefully, with Russian agents to win the last election. It didn't take a three-year bipartisan investigation to tell us that; any moderately intelligent child would have come to this conclusion from the moment candidate Trump said during a press conference, "Russia, if you're listening " (No, he wasn't joking.) He has continued to make such appeals to foreign leaders to interfere in our election.

Finding himself behind in the polls, Trump'sauthoritarian impulses are running hot, and he repeatedly broadcasts his threats to bring down our democracy. He speaks privately with Russian President Vladimir Putin, who no doubt is providing guidance to an eager disciple on the dismal arts of demagoguery and authoritarian rule.

Trump not only threatens mail-in voting, he is now threatening in-person voting, saying he will be sending thugs of one sort or another to oversee matters.

There's not time enough before the election for another impeachment, and, really, what would be the point?

Like Alexandria Ocasio-Cortez, I was a bartender in New York City (in my few years trying to be an actor), and I still know when the time has come for a last call. Section 4 of the amendment provides for the vice president and a majority of principal officers of the executive departments to make a formal declaration to Congress of a president's inability to serve. It gets complicated from that point. Essentially the president can counter, and the vice president and amajority of the cabinet must then re-counter. And then two-thirds of both houses of Congress have to agree.

So, to you, Vice President Pence, secretaries Pompeo, Mnuchin, Esper, Barr, Bernhardt, Perdue, Ross, Scalia, Azar, Carson, Chao, Brouillette, DeVos andWilke:

Last call for the 25th Amendment. Do your duty. Give up on this election for the sake of having future elections in the country you profess to love, before all is lost.

We well understand that you won't. But that's not to say that it should not be done. Because it should. We cannot wait for the election, because the president himself has put the electionin peril. Thiswould give Congress one last chance to do its duty, too though at an evenhigher standard thanimpeachment, which only requires a majority in the House.

When Benjamin Franklin was asked by Elizabeth Willing Powel of Philadelphia a "lady remarkable for her understanding and wit," according to a contemporary what kind of government he had helped to found, he told her: "A republic,ifyou can keep it." Now the question must be asked again: Can we?

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Last call for the 25th Amendment? Trump's Cabinet won't depose him but they should - Salon

An Egg Harbor Township man arrested on the Atlantic City Boardwalk with a gun and drugs while on parole will be held pending trial.Curtis Drinks, 24, was just released from prison in March. Since then, he has been arrested twice, Assistant Prosecutor Aaron Witherspoon told the judge at a detention hearing Wednesday.Drinks who is listed as Curtis Drakes by the state Department of Corrections was released from prison March 30, records show.He was then one of eight people arrested by Atlantic City police in July on drug charges.The latest arrest happened Friday, after Drinks was allegedly seen rolling a marijuana cigarette on the Boardwalk around South Carolina Avenue.An officer then found a gun, ammunition and drugs in his backpack, according to the charges.Drinks was cooperative with police by telling them about the gun, defense attorney Yvonne Maher noted to the judge, adding that the gun was not loaded.But there was ammunition in a sock, Judge John Rauh said.In arguing for release, Maher said her client has lifelong ties to Atlantic City and, while he had a gun, there is no indication he would use it for violence.Was he going target shooting? Rauh asked. Is it safe to say the gun was to protect him or protect his (drugs)?Drinks tried to briefly address the court, saying that his father died of COVID-19 about a month and a half after he got out of prison. I understand Im probably going to prison, he began before Rauh stopped him, noting he has a Fifth Amendment right not to incriminate himself.Candidly, I dont think youre helping at this particular point, the judge told him.While Rauh said he doesnt think Drinks is a risk not to appear, he does believe the defendant is a danger to the community.He appears to be a gentleman, but he cant get out of his own way, Rauh said. I let him go again, theres going to be a gun and somebodys going to get shot.

Link:
EHT man with gun on Atlantic City Boardwalk ordered held - breakingac.com

Earlier this month, the U.S. Court of Appeals for the Fifth Circuit held in National Coalition for Men v. Selective Service that requiring men but not women to register for the draft is compatible with the Due Process Clause of the Fifth Amendment (which reverse-incorporates the Equal Protection Clause of the Fourteenth Amendment). The reasoning is essentially that the U.S. Supreme Court in 1981 upheld male-only registration in Rostker v. Goldberg, and courts of appeals must follow Supreme Court precedents (though Professor Michael Dorf writes a persuasive critique of that reasoning here). I want to ask a different question. On the assumption that the U.S. Supreme Court takes this case, what should it do? And more narrowly, do the motives of the mens rights group pressing the equality claim bear on how the case ought to come out?

In the law, motives matter. If you fire a man because he is a man, then you have engaged in sex discrimination, even if he happens also to be an incompetent worker. The mans incompetence may go to remedy, so a court would not compel you to rehire him at the expense of your business. And offering a good reason for firing a person might even help prove that the good reason is what actually drove the termination. If the jury concludes, however, that sex or race or membership in some other protected category motivated the adverse employment action, then the employer will be liable for discrimination.

So the motives of defendants matter, but what about the people bringing the complaint? Is it important that a man or a group of men brought their lawsuit claiming sex discrimination because the man or group of men hates women? I have had at least one exchange with a man who was a regular litigant in the U.S. Supreme Court on behalf of men. He believed that giving only women the legal ability to have an abortion violated the rights of men. He argued that if either of the biological parents wants to terminate a pregnancy, he or she is entitled to do so. The position is so extreme that I had not before heard anyone articulate it as their own (as opposed to as a controversial law school hypothetical). Even this gentleman did not make the argument in court, but he did convey it to me. And though I cannot be certain, I had the impression that his disdain for women led him to believe that forcing his ex-wife to terminate a pregnancy against her will would have been morally equivalent to his ex-wife deciding to have an abortion.

Why do I bring up this story? Because sometimes people, perhaps including the man to whom I spoke, process a legal problem through a filter that asks what we (men, in this case) lose by not getting the exact same rights as they (women) do? If the answer is a lot, then some will conclude that they necessarily have suffered objectionable discrimination. In this mans case, he thought about how having a child you dont want is a major imposition, especially as it entails paying child support for at least 18 years. Given that women confronting this possibility could have an abortion and escape the financial burden, the government must extend that same escape option to men. The considerable additional harm to women if men acquire a right to abort against a womans will doesnt necessarily factor into his equation.

This myopia that tends to ask how men may be getting a raw deal compared to women seems inconsistent with what the fight for equality is about. And the mens rights movement in particular sometimes seems less interested in gender equality than in male supremacy and power over women. According to the Southern Poverty Law Center (SPLC), Warren Farrell, the father of the Mens Rights Movement and member of the Board of the National Coalition for Men (NCM), challenger of male-only draft registration, has said that [w]omen ha[ve] become too powerful and dangerous because, on top of holding sexual power over men, they c[an] then lead to mens downfall with accusations of sexual harassment and assault.

The claim that any policy regarding sexual harassment or assault should (continue to) rest on the notion that women have sexual power over men is troubling. And according to the SPLC, one of the main targets of the Mens Rights Movement has been the Violence Against Women Act of 1994 (because it, like the scourge at which it aims, disproportionately concerns women). The rhetoric of the Mens Rights Movement gets a lot more graphically violent and sexually explicit than the use of the phrase sexual power conveys, so consider the above a G-rated introduction. When NCM challenges male-only draft registration, it accordingly seems unlikely that the group cares about promoting gender equality.

The motive of a complaining party generally has no legal bearing on whether that party may sue or whether its substantive position is likely to succeed on the merits. If a case is meritorious, then the complainant can win, no matter how odious the plaintiff and its motives. Some of the most important free speech precedents involved racist and antisemitic plaintiffs hailing from neo-Nazi groups and the Ku Klux Klan (sometimes represented by Jewish lawyers). And in the criminal procedure area, nearly every significant protection against unreasonable search and seizure involved a proponent charged with a serious crime. Ernesto Miranda (a dead ringer for Al Franken) was convicted (twice) of rape and persuaded the Court to require the now-famous warnings in advance of custodial interrogation. The laws indifference to why a plaintiff or petitioner has brought a case may therefore be quite useful.

On the merits, the discriminatory draft registration requirements are suspect. In addition to dividing people on the basis of sex, the exclusively male draft registration reinforces sex-role stereotypes. What could be more stereotypically male, after all, than going off to war, fighting against an adversary, and using lethal force against the enemy? And the reason that women in the past have had to stay behind was at least in part to take care of the children while keeping the home fires burning, both part of the female stereotype. When a type of sex inequality reinforces stereotypes, it would seem that there is a strong case for eliminating the sex line. The Fifth Circuit upheld the statute because Rostker remains good law. That observation, though true, however, does not stop the Court from overruling or distinguishing Rostker now.

But why is a mens rights group challenging the line at all? In one sense, it sounds like a feminist venture because NCM is attempting to invalidate an invidiously discriminatory, stereotype-confirming line. And yet. It seems perhaps likely that NCMs members have no interest in military service. They may hope that they can eliminate draft registration altogether because Congress would prefer no registration at all than registration of women. And if Congress does decide to require registration from men and women alike, this move would add the entire population of eligible women to those currently available for a future draft. In other words, it is quite possible that this group simply wants to add women to the ranks of cannon fodder, thereby reducing the chances that a man would have to fight if registration leads to a draft.

The mens rights groups own reasons for bringing the case are perhaps offensive but ultimately immaterial. Because there is merit to their petition, I ambivalently support petitioners in this case. For the same reason, I would question the utility of standing doctrine for artificially limiting the universe of potential plaintiffs bringing meritorious claims. The best arguments for a position are no less likely to emerge when a talented attorney represents someone with the wrong sort of commitment to their position than they are when the client happens to have the right kind of skin in the game.

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Drafted and Shafted: Who Should Complain About Male-Only Registration? - Justia Verdict