Category Archives: Fifth Amendment

In American constitutional democracy, democratic choices are limited by restraints imposed by the Constitution. The due process clause of the Fifth Amendment dictates that neither life nor liberty nor property may be deprived absent due process, which the Supreme Court construes to require adjudication by a neutral judge.

In short, under the Constitution one cannot be deprived of liberty without a court ruling upon the legality of the detention. The power of courts to restrain government officers from depriving citizens of liberty absent judicial process is the only meaningful way courts have to enforce important constitutional protections. But if the president can employ the pardon power to circumvent constitutional protections of liberty, there is very little left of the constitutional checks on presidential power.

I am not suggesting that the pardon power itself provides for a due process exception. To the contrary, on its face the pardon power appears virtually unlimited. But as a principle of constitutional law, anything in the body of the Constitution inconsistent with the directive of an amendment is necessarily pre-empted or modified by that amendment. If a particular exercise of the pardon power leads to a violation of the due process clause, the pardon power must be construed to prevent such a violation.

I admit that this is a novel theory. Theres no Supreme Court decision, at least that I know of, that deals specifically with the extent to which the president may employ his pardon power in this way.

But if the president can immunize his agents in this manner, the courts will effectively lose any meaningful authority to protect constitutional rights against invasion by the executive branch. This is surely not the result contemplated by those who drafted and ratified the Fifth Amendment, and surely not the result dictated by precepts of constitutional democracy. All that would remain to the courts by way of enforcement would be the possibility of civil damage awards, hardly an effective means of stopping or deterring invasions of the right to liberty.

Anyone who has read the Federalist Papers knows how obsessed the framers were with the need to prevent tyranny. They were all too aware of the sad fate of all the republics that had preceded ours rapid degeneration into tyranny. One of the most effective means of preventing tyranny was the vesting of the power of judicial review in a court system insulated from direct political pressures. Subsequent enactment of the Bill of Rights, which included the Fifth Amendment and its due process clause, only strengthened the nations resolve to prevent tyranny.

It has long been recognized that the greatest threat of tyranny derives from the executive branch, where the commander in chief sits, overseeing not just the military but a vast and growing network of law enforcement and regulatory agencies. Indeed, the Articles of Confederation didnt even provide for an executive, for fear of what dangerous power he might exercise.

While the Constitution, in contrast, recognizes the very practical need for an executive, that doesnt mean its framers feared the growth of tyranny any less. The Fifth Amendments guarantee of neutral judicial process before deprivation of liberty cannot function with a weaponized pardon power that enables President Trump, or any president, to circumvent judicial protections of constitutional rights.

Martin H. Redish is a professor of constitutional law at Northwestern and the author of Judicial Independence and the American Constitution: A Democratic Paradox.

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Why Trump Can't Pardon Arpaio - New York Times

TRENTON >> Scott Schoellkopf is back in uniform.

The Mercer County Sheriffs officer, who was arrested for beating his wife on April 28 and ultimately had the charges dismissed, returned to work on Aug. 16, authorities said Thursday.

Schoellkopf, a lieutenant, was re-assigned out of the fugitive unit to the courthouse security unit. Under the state legal system, Schoellkopf was cleared for duty and given the legal right to return to work, according to information provided by the Mercer County Sheriffs Office.

However, Chesterfield police confirmed Wednesday that his wifes death still remains under investigation.

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Regina Schoellkopfs body was found was found hanging in the couples home on the first block of Settlers Way in Chesterfield on July 2.

Five days earlier, a judge dismissed a simple assault charge that was filed by police against Scott Schoellkopf because his wife invoked her 5th Amendment rights to testify against her husband. Shortly after Scott Schoellkopf was charged with pushing his wife to the ground, causing redness and pain to the thigh area of her right leg, he filed a counter complaint against his wife, alleging she pushed him, causing red marks to his shoulder, according to court documents obtained by The Trentonian through a public records request.

Scott Schoellkopfs complaint was a private citizens complaint that Chesterfield Township Municipal Court Judge Lis Downey authorized on May 8, despite not being signed by police, court records show.

Scott Schoellkopf also invoked his Fifth Amendment right to testify against his wife and the charge against Regina Schoellkopf was dismissed.

According to a 9-1-1 tape obtained by The Trentonian through a public records request, Scott Schoellkopf called police the day his 39-year-old wife was found dead to report she had not shown up to pick up their two kids.

Me and my wife are getting divorced and my wife was supposed to pick our kids up at Wawa, Scott Schoellkopf tells the dispatcher. She never showed up so we came to the house and her cars in the driveway and the whole house is dark and everything. Shes never been late before.

The house is in the couples name, property records indicate.

A welfare check was then detailed to the house and Reginas Schoellkopfs lifeless body was found by police.

Authorities confirmed Wednesday that their investigation into the death is not over.

Chesterfield Police Chief Kyle Wilson said in an email that the investigation is still open. Initially, the chief said there was nothing suspicious.

The Burlington County Prosecutors Office said on July 6 and then again on July 7 that the agency is not involved in the investigation.

However, Burlington County Prosecutors Office spokesman Joel Bewley said Wednesday via email that the agencys High-Tech Crimes Unit has provided assistance in the probe.

Regina Schoellkopfs family also assumed custody of her body to perform their own autopsy, signaling they have concerns about her death.

The domestic violence incident on April 28 was documented in a 9-1-1 call obtained by The Trentonian. It shows that Regina Schoellkopf was afraid of her spouse.

My husband just hurt me, Regina Schoellkopf says to a police dispatcher with panic in her voice. Hes threatening me ... please hurry.

The wife, who was barricaded in the bathroom when she called police, said she was knocked down, causing pain and redness to her side.

At one point in the audio recording, Regina is heard saying, Im trying to protect myself to someone in the home.

F**k you, a man shouts back.

Scott Schoellkopf, an 18-year veteran who earns an annual salary of $115,083, was suspended without pay from the Mercer County Sheriffs Office following his arrest.

Scott Schoellkopfs arrest was the third time a Mercer County Sheriffs officer allegedly hit a female partner in a five-month span.

The Mercer County Sheriffs Office said Thursday that it stands firm on its disdain for domestic violence in the community and within its ranks.

Victims of domestic violence have help available. Online chat is available so victims can ask for help quietly at thehotline.org or the phone line is 1-800-799-SAFE (7233). Help for all kinds of crisis is available at crisistextline.org, if you are in crisis text HOME to 741741.

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Mercer County Sheriff's officer returns to work despite wife's death still under investigation - The Trentonian

Charleston police arrested on Tuesday night an East End man who allegedly spray painted Black Lives Matter on the Clay Center the previous night.

Detectives arrested Ray Hensley Jr., 36, for destruction of property, according to a criminal complaint filed in Kanawha County Magistrate Court. Hensley, who is white, also was charged with obstructing, two counts of shoplifting, and trespassing, according to a news release.

Sgt. J.A. Hunt said, in a news release, that police expect to file more charges once a more detailed examination of other graffiti sites is completed.

Police had said, in a news release earlier Tuesday, that they found graffiti on both the Clay Center, at 1 Clay Square, and Foxs Pizza, on Ruffner Avenue, near Smith Street. The graffiti appeared to match in paint color and was similar in writing style, police had said.

Police received a tip that Hensley had Black Lives Matter spray painted on a cardboard sign on the front porch of his Dixie Street apartment, according to a criminal complaint. Police wrote in the complaint that the slogan on the sign was also written in the same writing style.

Detective W. Anderson wrote, in the complaint, that Black Lives Matter found several weeks ago on a billboard at the intersection of Slack Street and Piedmont Road had what appeared to be the initials RHJ written on the bottom and was also written in a similar style.

Police had reviewed video surveillance from the Clay Center. Police said, in the complaint, that Hensley was wearing black and white shoes, similar to those of the person in the surveillance video.

While driving to the station I asked if Mr. Hensley if he was aware of why we would want to speak with him and he nodded his head yes, Anderson wrote. I explained that this was not a major crime but we did want to know why these locations were damaged. I told him that he was captured on video spray painting the side of the Clay Center and he nodded his head in agreement. I asked if he was aware of the cameras in the area and he said that he was not.

I then asked if he was responsible for the spray painting incidents several weeks ago and he said he would exercise his fifth amendment right on that question. I asked if I should be looking for someone else in relation to those crimes or would I be wasting my time doing so? Mr. Hensley said that I would be wasting my time and that he would not let someone else take the blame for him.

While at the station Mr. Hensley was read his Miranda rights [CPD form 145] and initialed the form. He wrote his initials as RHJ on the form.

Destruction of property, a misdemeanor, is punishable by a fine of not more than $500, confinement in a regional jail for not more than one year, or both.

Charleston police could not be reached for more information Tuesday night.

Reach Erin Beck at erin.beck@wvgazettemail.com, 304-348-5163, Facebook.com/erinbeckwv, or follow @erinbeckwv on Twitter.

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Charleston man arrested for 'Black Lives Matter' graffiti - Charleston Gazette-Mail (subscription)

This article first appeared on Just Security.

There are many allegations against Donald Trump that may give rise some day to either criminal prosecution or congressional sanction.

But what precisely are the available options for the special counsel and for members of Congress? What is in their respective tool kits?

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Donald Trump walks toward Marine One on the South Lawn at the White House, on August 14, 2017 in Washington, DC. Mark Wilson/Getty

In this article, we explain a range of options (and the legal issues each raises): including indictment and prosecution, a grand jury statement of wrongdoing, impeachment, censure, and, for the sake of completeness, the Twenty-Fifth Amendment.

In light of reports that Special Counsel Robert Mueller is investigating Trump personally for obstruction of justice, an obvious issue is whether Mueller could ultimately seek to indict and prosecute the president.

The question whether a sitting president can be indicted has vexed generations of constitutional lawyers. The Constitution is silent on the subject and the Supreme Court has not squarely addressed the question.

Within the government, the issue has been considered on five occasions: twice by the Office of Legal Counsel (OLC), by the Solicitor General in the Watergate era, by the Watergate special prosecutor, and then again by the Office of the Independent Counsel in the Clinton era.

A split emerged in those opinions. In general terms, it is fair to say that the presidents immunity from indictment is an open question. The OLCs 2000 opinion, however, is presumably still the prevailing view at least for the Department of Justice.

It holds that a President cannot be indicted or prosecuted while in office, but that temporary immunity, the OLC states, would not preclude such prosecution once the Presidents term is over or he is otherwise removed from office by resignation or impeachment.

Perhaps the most widely held view, adopted by the OLC in memos from 1973 and 2000 and then-Solicitor General Robert Bork in a 1973 brief, is that the president is not susceptible to indictment and prosecution while in office. Broadly, the reasons supporting that position are twofold.

First, looking at the Constitutions text, some suggest that the impeachment procedure must precede an indictment. Article I, section 3 states:

Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust, or Profit under the United States; but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment, and Punishment, according to Law.

Some have argued that this language appearing to contemplate an indictment after an impeachment means that this is the only proper constitutional sequence. This reading has been abandoned for other offices including judges, vice presidents and cabinet officials, watering down its persuasiveness in the presidential context. The 1973 OLC memo didnt rely on it, but Nixon did in his briefs to the Supreme Court the next year.

The stronger argument is based on the unique position of the president in the constitutional structure. The president alone holds all federal executive power, including control of the army and navy, foreign affairs powers, control of executive departments, and the responsibility to execute laws. If the president were indicted, he could potentially be arrested, put on trial, convicted, and incarcerated.

Even if he were eventually acquitted, simply dealing with these processes would demand substantial attention. The OLC opinions in support of constitutional immunity reason that to subject the president to the criminal process would hopelessly handicap him from exercising his power.

That result would implicate the separation of powers by giving the judiciary the power to cripple the executive branch something the Supreme Court cautioned against when considering Nixons immunity from civil suit in Nixon v. Fitzgerald .

There, the Court stated that a president has absolute immunity from civil suit for official acts although that may not include other actions of a president while in office, or actions beforehand as the Supreme Court made clear in Clinton v. Jones .

(Note that Just Security s Ryan Goodman has recently published an analysis of Nixon v. Fitzgerald , arguing that a majority of justices suggested that a president is not immune from criminal prosecution during his term.)

The Bork briefwhich was substantially about the power to indict a vice president, but also considered the same issue vis-a-vis the president also points to the Twenty-Fifth Amendment, which establishes the succession of the presidency and a mechanism for replacing him if he is incapacitated.

[I]t is noteworthy that the President is the only officer of government for whose temporary disability the Constitution provides procedures to qualify a replacement, Bork wrote. This is recognition that the President is the only officer whose temporary disability while in office incapacitates an entire branch of government.

A related point, relied on in the OLC memos and the Bork brief, is that the president controls much of the apparatus surrounding criminal justice: prosecutions; evidence (through the power of executive privilege), and the pardon power. All of this means the common sense approach is to impeach and remove a president (and deprive him of the pardon power), and then prosecute him.

Thats the majority view, but the issue is not settled. Its a somewhat uncomfortable conclusion, running counter to the idea that nobody is above the law and giving the president a king-like immunity even for acts committed totally outside his official duties. Important legal figures have disagreed with it.

Notably, Watergate special prosecutor Leon Jaworski argued against presidential immunity from prosecution in a 1974 Supreme Court brief, following a memo from his staff.

In addition, a 1998 memo written for Independent Counsel Kenneth Starr by constitutional law professor Ronald Rotunda, mounts a strident case for the constitutionality of indicting a sitting president.

Savage calls this the most thorough government-commissioned analysis rejecting a generally held view that presidents are immune from prosecution while in office. At the very least, the 56-page memo is a testament to the debatability of the issue.

One note, though: Rotunda limited his advice to the context of Starrs investigation, whose powers and responsibilities were regulated by statute. That law is no longer in effect, and Robert Muellers position was created by Justice Department regulations instead of directly by congressional statute.

Its this contextual difference that led Rotunda to argue, in a recent op-ed, that while Starr could have indicted Clinton, Mueller cannot indict Trump.

In his Supreme Court brief, Jaworski argued that constitutional and public policy considerations actually cut both ways. The importance of the administration of criminal justice and the principle that under our system no person, no matter what his station, is above the law weigh against presidential immunity.

The Supreme Court took into account similar considerations when finding that Clinton could be sued for acts falling outside his official duties, in Clinton v. Jones . Speaking for the court, Justice Stevens wrote that neither the doctrine of separation of powers, nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances.

The precise scope of the presidents civil immunity is still unclear, and would likely inform a courts evaluation of the scope of criminal immunity while in office.

On top of that, both Jaworski and Rotunda argue that the Constitution provides an explicit immunity for members of Congress, showing the framers turned their minds to the question, but none for the president.

Finally, Jaworski argued, impeachment can only follow high crimes and misdemeanors, which doesnt run the full gamut of criminal offenses. If impeachment had to precede indictment, this would leave a number of crimes which could go entirely unpunished.

Rotunda, in his memo for Starr, adds that impeachable offenses dont have to be violations of criminal statute, demonstrating that they are two different categories of acts.

Rotundas memo makes a couple of further points. First, he suggests that while a president can be indicted, it may be that any imprisonment would have to be deferred until after he leaves office.

He also offers a response to Borks Twenty-Fifth Amendment argument, suggesting that the amendment actually weighs against an immunity because it means there is a structural solution to the incapacitation of the executive branch that an indictment could engender. The vice president could temporarily replace the president if the the latter is disabled.

In the end, neither Jaworski nor Starr attempted to indict the presidents they were investigating. If Mueller were to attempt it, hed be breaking new ground.

But Muellers hands may be tied. The regulations governing his position specify that he must comply with the rules, regulations, procedures, practices and policies of the Department of Justice.

Which raises another contested legal question whether that phrase includes the previous OLC opinions concluding that prosecuting a sitting president is out of bounds.

If so, it wont be for Mueller to make up his own mind on the constitutionality question; hell just have to follow the conclusions expressed in the opinions. (Its for this reason that Rotunda concluded in his recent op-ed that Mueller cannot indict, while Starr could have.)

Whatever constitutional position is ultimately correct, we shouldnt assume the uncertainty necessarily means Mueller wont seek to indict him. As Professor Andrew Crespo points out, it hardly means he cannot be prosecuted.

On the contrary, a lawyers job is often to assess the relevant facts and legal arguments under conditions of uncertainty such as theseand then to make a judgment about how best to proceed. In this instance, that lawyers name is Robert Mueller. should he decide to take us down the road to United States v. Trump, he would be acting well within the law, the norms of the profession, and the reasonable bounds of the discretion with which he has been entrusted.

But he would also be acting professionally if he like Starr decided impeachment were the more appropriate course to pursue.

In the event that Mueller concludes that he cannot indict a sitting president, or that he has insufficient to support criminal liability, but his investigation still turns up evidence of wrongdoing, the grand jury has alternatives.

As Ryan Goodman and Alex Whiting unpack here and here, there are three other possible options. Congress can subpoena the grand jury evidence for the purpose of considering impeachment, which might then become public. The grand jury might also consider presentment, an official declaration that it would have indicted the president were it not for his current official position.

Goodman and Whiting write that this option is not necessarily precluded by any Justice Department legal opinion. Thirdly, the grand jury can use a special procedural device to produce a public report. Of course, none of these mechanisms are really punishment in themselves, but would enhance the presidents accountability.

Impeachment presents no such constitutional issues. Of course, politically its another matter because of the Republican-controlled Congress but there is no question that Congress is empowered to impeach a president.

Article II, section 4 of the Constitution provides that:

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

A president can be removed when the House passes articles of impeachment specifying the basis of the impeachment (akin to an indictment) with a simple majority of those members present and voting once quorum requirements are met, and after a trial presided over by the Chief Justice, the Senate can convict with a two-thirds majority of the members present.

The Constitution says that impeachment can follow a presidents high crimes and misdemeanors, but it doesnt define that phrase. That means its in effect for the Congress to interpret, making it more of a political determination than a legal one.

Theres a good argument that several of the main allegations against Trump could justify an impeachment even without connection to an indictable crime. One boundary question is whether a president could be impeached for actions the person took before assuming federal office.

If those actions involved matters related to how the individual got elected, there is a stronger argument for them counting. A 2010 case will be relevant here: the situation of Judge Thomas Porteous, who was impeached and then removed from the bench.

One of the articles of impeachment cited conduct pre-dating his appointment, making false statements to the Senate and FBI in connection with his nomination and confirmation to the U.S. District Court for the Eastern District of Louisiana. He was convicted on that article.

Bill Clinton and Andrew Johnson (back in 1868) were impeached by the House. Nixon resigned ahead of his near-certain impeachment.

A measure short of impeachment that Congress could pursue is censure . It is notable that censure can come from either chamber of Congress, and does not require a super-majority of the Senate as with impeachment.

While constitutional questions have been raised about the practicewhich is not explicitly provided for in the Constitutionit is probably lawful. However, censure is seldom deployed and without legal effect. For more, read our deep dive into the scope and history of censure here.

A more outlandish proposal floating around is using a combination of legislation, a congressional commission, and the Constitutions Twenty-Fifth Amendment to oust President Trump.

Rep. Jamie Raskin (D-Md.) is sponsoring a bill designed to create a congressional oversight commission that could declare Trump incapacitated and have him removed under the Twenty-Fifth Amendment the provision introduced in the wake of Kennedys assassination to kick in when a president can no longer fulfil his duties.

Section 4 of the Amendment allows the Vice-President and a Cabinet majority to declare that the president is unable to discharge the powers and duties of his office, handing the reins over to the VP.

But the section also says a majority of such other body as Congress may by law provide can make the same declaration with the VP and its such an other body that Raskin is trying to create.

The plan would be to create an Oversight Commission on Presidential Capacity, staff it up with four physicians, four psychiatrists and three others (like former presidents) and direct it to examine the president to determine whether the president is incapacitated, either mentally or physically.

This kind of scheme is constitutionally possible, of course, but runs into political problems. Raskin needs to find enough votes not only to pass the legislation but to override the certain presidential veto.

Then, under the Amendment, if Trump challenged the finding and demanded to be reinstated, a two-thirds majority of both houses would need to block that challenge to sustain removal.

On top of that, Mike Pence would need to agree that the president was incapacitated in the first place. All of that seems incredibly unlikely. Even impeachment is simpler.

No president has ever been removed by impeachment. No president has ever been indicted. No president has been censured since 1860. And the Twenty-Fifth Amendment has never been invoked.

Each item on the menu of options laid out in this article has its own flaws and difficulties, and thats why they are so seldom used: indictment is constitutionally questionable, censure is on surer footing but lacks real bite, impeachment requires great political will, and the Twenty-Fifth Amendment requires political will and there are serious questions about its applicability.

Yet this has been a very unusual presidency, and many norms have fallen by the wayside in the wake of Trump. There may be more breaks with convention to come.

Hannah Ryan is a Junior Research Scholar at Just Security.

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Dumping Trump. All You Need to Know About How He Could Legally Be Removed from the White House - Newsweek

This week several groups filed friend of the court briefs supporting PLFs Supreme Court petition inWayside Church v. Van Buren County.

Two of the amicus briefsone by AARP and the other by the Buckeye Institutefocus on the need for the Court to review Michigans unjust tax foreclosure law. Under this unjust and unconstitutional law, Van Buren County took Wayside Churchs property, sold it for $206,000 to pay around $16,750 in property taxes, penalties, fees, and interest. The County then pocketed all of the remaining profit as a windfall. Similarly, the county took the farm and home where Henderson Hodgens grew up, and sold it for $47,750 to pay a $5,900 debt. The County kept the entire profit, even though it already got significant benefit from the penalties and high interest rate due under state law. The amicus briefs offer additional arguments that explain why the County violated the constitution when it took thesurplus profit and why it is important that the Court overturn the practice.

The other two briefsoneby Center for Constitutional Jurisprudence, and the other by NFIB Small Business Legal Center, The Cato Institute, and Southeastern Legal Foundationask the Supreme Court to review an important jurisdictional issue in this case. As they succinctly explain, this case presents the Supreme Court with a great opportunity to open the federal courthouse doors to individuals who seek to enforce their Fifth Amendment right to just compensation. Congress intended that the federal courthouses be open for these sorts of claims and there is no reasonto deny individuals of that right.

We are grateful for these organizations support and hope the Supreme Court will grant the petition to remedy the injustice suffered by our clients.

Link:
Groups ask Supreme Court to grant PLF's petition in Wayside Church v. Van Buren County - Pacific Legal Foundation (PLF) (press release) (blog)

Of the many rebukes Donald Trump received for his performance after the Charlottesville massacre, the collapse of his business advisory councils of corporate leaders may sting the worst. It undermines his core claim of business expertise and skill at managing the economy, and his central boast that he is adept at creating jobs and growth.

Meanwhile, 2,500 miles to the west, DreamHost LLC, a webhosting company in Los Angeles, is resisting a subpoena by the Department of Justice. During the weeks before President Trumps inauguration, the company hosted a site called disrupj20.org, which allowed organizers and potential protesters to discuss, plan, and communicate about demonstrations during the upcoming inaugural weekend. On Inauguration Day, a small band of protesters did clash with police, breaking windows and setting fire to wastebaskets in the streets. Some 200 were arrested and charged with such crimes as rioting, inciting or urging to riot, conspiracy to riot, and counts of destruction of property.

As part of the prosecution, the DOJ has demanded that DreamHost turn over digital information about anyone who visited the disrupt site. According to the company, that will mean revealing information on 1.3 million visitors to the siteincluding the time and date of the visit, the IP address for the visitor, the website pages viewed by the visitor (through their IP address), and even a detailed description of the software running in the visitors computer. This information, together with information from the internet service provider for the IP address, would allow the government to identify the visitor to the website and the specific computers used to visit the website.

The company is resisting the subpoena in court. Its memo opposing the demand makes sobering reading. For one thing, it illustrates the overreach and arrogance of the Justice Department; but for another, its arguments rely overwhelmingly on cases protecting the Fourth Amendment rights of advocacy groupssuch as the NAACP and the ACLUor of for-profit corporations, including Amazon, Google, Yahoo, Facebook, and even the Washington bookstore company Kramerbooks & Afterwords, Inc.

What links these two news items? In both cases, corporations, or agents of corporations, are displaying good citizenship. Americans fightagainst bigotry, neo-Nazi sympathies, and Big Brother-style surveillanceis, in these two cases, their fight.

Nor is this anomalous. During many recent legal and social battlesfor the survival of affirmative action, for example, or for marriage equality, or for protection of transgender people against punitive bathroom bills, to name a fewlarge consumer companies and professional sports corporations have weighed in on the side of marginalized and endangered groups. Tech companies often speak up when they see threats to online privacy or danger of discrimination against their employees. Pharmaceutical companies have firmly disassociated themselves from the death penalty. And health insurance and hospital corporations were an important force in defeating the administrations plan to gut the Affordable Care Act. In a society where civil society groupschurches, universities, civic groups, and unionssometimes seem enfeebled, corporate voices have made a difference.

Those facts provide a moment to rethink quietly one of the key ideas that floats around among the progressive communitythat corporations are anti-democratic, and that they should be stripped of their constitutional rights.

This demand is at the core of much of the organizing taking place against campaign-finance decisions, such as Citizens United v. Federal Election Commission, that have made possible the domination of our politics by wealthy special interests. Many progressives believe devoutly that Citizens United held that corporations are people and money is speech. The answer, they argue, is simply to take constitutional personhood, and constitutional protection, away from these sinister entities.

Consider the Peoples Rights Amendment offered by Free Speech for People, one of the major groups seeking an amendment to roll back Citizens United: The words people, person, or citizen as used in this Constitution do not include corporations, limited liability companies or other corporate entities... Move to Amend, another progressive group, proposes inserting this constitutional language: Artificial entities established by the laws of any State, the United States, or any foreign state shall have no rights under this Constitution and are subject to regulation by the People, through Federal, State, or local law.

It sounds good. But theres a problem: If the protections of the First Amendment didnt apply to corporations, the CEOs of the dissenting companies above would be opening their companies to legal, open retaliation by the governmentcancellation of contracts, exclusion from government programs, and other measures a spiteful administration could take to punish them. The First Amendment prevents this sort of retaliation against the leaders as personsbut it would offer no shelter to their corporations, which Trump could punish at whim; the corporation itself wouldnt even be entitled to Fifth Amendment due process. No CEO faithful to his or her charge would dare open their corporation to such danger.

And if the Fourth Amendments protection against unreasonable searches and seizures didnt apply to corporations, DreamHost would have been forced to hand over the required information by now. No court could even hear the companys challenge.

Republican presidential nominee Mitt Romney (how I miss him!) saidto general ridiculecorporations are people, my friend. What he meant by that, I believe, was not that Walmart or Unilever is an Iron Giant-style behemoth that can stride around the landscape, but that corporations are made up of people. My corporations class professor, James Cox, used to say that corporations are the modern equivalent of the ancient city-state. The people of these odd societies include not just corporate management or shareholders, but also corporate employees and their families, corporate customers, and people in the communities that create and protect the companies. Large companies need to hire talented workers; they need a diverse workforce to understand and operate in the national and world market; they need to project values that make their customers feel affirmed. Consumer companiesfood and beverage companies like Coca-Cola or retail giants like Walmartcannot afford to drive away whole blocs of customers, incur consumer boycotts, or inspire shareholder revolts.

The campaign finance problem, in fact, has little to do with corporations, and everything to do with the increasing share of Americas wealth held by a few greedy individuals. It is wealthy individuals, far more than giant corporations, who are poisoning our politics. Stripping corporations of rights would do nothing to reduce the power of the Koch brothers, casino magnate Sheldon Adelson, or hedge fund magnate Robert Mercer.

As for corporations, Kent Greenfield, a law professor at Boston College, recently wrote that corporations may provide a brake on the political pendulums rightward swing To survive, corporations must be inclusive and multicultural in ways that homogeneous, economically distressed, insular tribes are not.

Greenfield arguesin published essays and a forthcoming bookthat what we need are corporations that are more fully human, not more artificial. He points out that, without any change to the Constitution, states today could amend their corporate laws to require corporations to take account of all their constituencies, and even represent workers and the public on their boards. Such reforms might ensure that corporations would be even more aware of their obligations to serve the interests of the larger societyto practice better corporate citizenship. In 2017, it is remarkable how many of our hopes may depend on that.

Originally posted here:
When Corporations Are Good Citizens - The Atlantic

Enlarge / An Uber driverless Ford Fusion drives in Pittsburgh, Pennsylvania.

Photo by Jeff Swensen/Getty Images

SAN FRANCISCODuring a heated court hearing here today, Waymo lawyersaccused Uber's law firm, Morrison Foerster, of violating a court order by not handing over documentsthat Waymo says were illegally downloaded from Google.

Waymo filed a lawsuit in February, claiming that theformer head of Uber's self-driving car project, Anthony Levandowski, downloaded more than 14,000 Google documents that contain trade secrets about self-driving cars,shortly before he left his job at the company. Levandowskithen created a startup called Otto, which he sold to Uber for $680 million. Waymo has saidthat Uberhasused thosetrade secrets, which were brought over by Levandowski.

Uber deniesthat any trade secrets were on Uber servers and says it built its own technology from the ground up. Levandowski, who is not a defendant in the case, hasn't denied downloading filesinstead, he has pled his Fifth Amendment rights and refused to talk. Uber fired him in May for refusing to cooperate with court orders.

"Weve been trying to get these documents since the outset of this case, and we still dont have them," Waymo lawyer Charles Verhoeven told US District Judge William Alsup.

Uberattorney Arturo Gonzalez protested that Waymo'sexplanation wasmisleading. It's true thata digital forensics firm, Stroz Friedberg, imaged Levandowski's devices as part of Uber's acquisition. But onlya "tiny sliver" of thoseimages came into Morrison Foerster's offices, where they were reviewed by a single associate.

The material came in at a time whenMorrison Foerster, often called MoFo for short, was representing Levandowski in an arbitration over his departure from Google.Gonzalez said he "pulled the plug" on the documents being reviewed once he saw that a conflict was developing between Uber and Levandowski.

He alsopointed out that it's Levandowski who is arguing that the documents are protected by a joint defense privilege. It's Levandowski's lawyers, not Uber, who have appealed the issue to the USCourt of Appeals for the Federal Circuit, which still hasnot ruled on the matter.

"Once the FederalCircuit rules, this will be reviewed under whatever protocol we agree to, and produced,"said Gonzalez.

"We have repeatedly asked, specifically, for the Google documents," said Verhoeven. He continued:

Upuntil June, theysaid they didn'thave it. That MoFodidn'thave it. Thatwas false. Thatis not protected by the FifthAmendment.Theydidnt tell us, intentionallyuntil they were forced to, when we finally battered them down after a dozen motions.

Alsup generally seemed sympathetic to Verhoeven, although he said he would wait for the Federal Circuit ruling. When he pondered a solution to the matter, he said he was inclined to tell the jury exactly what happened.

"I am concerned thatMr. Gonzalezfailed to disclose that he had the documents," Alsup said. "He took a long time to come clean. Maybe he can get on the stand and explain it away. Iam inclinedto tell the jury exactly this scenariothat he was ordered to come clean and did not come clean. Then finally in June and July, he comes clean."

"You've bought into a completely false narrative," Gonzalez said. "We'renot trying to hide anything. Thistrial is against Uber. Uberdidn't even know MoFohad these documents. Thedownloadedmaterials are not at MoFo, and Uberdidn't even know we had these materials."

The arguments over Levandowski's documents were part of a series of three motions that will lay the groundwork for an October trial,now less than 60 days away.

In addition to hearing arguments overLevandowski's imaged devices, Alsup heard two other motions filed by Uber: one attacking Waymo's damages case and another attempting to limit the trade secrets that Waymo can present at trial.

"Uber does not have [damage] calculations, the basis for them, the theoriesand methodology that they're going to rely on," said Uber lawyer Karen Dunn. "It may be time to face up to the fact they want an injunction. They don'thave a damages case at allit's a non-commercialized market."

A Waymo attorney countered that the companyhad provided a 26-page narrative outlining its damages theories.

"We just got Uber'sside of the ledger yesterday," said Waymo attorney Melissa Baily. "So nowwe have ninedays [before the end of discovery] to take that into account. We cant do a complete analysis without that information."

Alsup didn't rule on the damages matter, saying that he needs to see where thetwo sides come out on the matter.

"Thenit will be clearer how fair or unfair the process has been," he said. "This piece of the controversy will be held in abeyance for a while."

A final motion, over limiting Waymo's alleged trade secrets, was held in closed session.

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Lawyers clash over an imaged hard drive as Waymo v. Uber hurtles toward trial - Ars Technica

Newsweekpublished this story under the headline of G-Men and Klansmen on August 25, 1975. Due to recent events at a white supremacist rally in Charlottesville, Virginia, which resulted in one death and 19 injuries,Newsweekis republishing the story.

For decades, almost without restraint, the Federal Bureau of Investigation has carried out a wide range of undercover intelligence projects. Unknown to most Americans, some of these operations probably included violations of the law - and others, as they became known, seemed simply foolish. Last week, at the American Bar Association convention in Montreal, Attorney General Edward H. Levi made clear that he intended to put a leash on the FBI by instituting "guidelines" to cover its intelligence activities.

Levi proposed to restrict domestic intelligence gathering to circumstances that may threaten violence in the nation, and he promised to review these programs periodically. Electronic surveillance, such as wiretapping, would be limited to long-range investigations. The use by the FBI of "provocateurs" to lure unpopular people and groups into trouble would be barred completed. The vast amount of unsolicited - and often derogatory - material that the bureau receives about government officials and private citizens would be destroyed within 90 days if it could not be connected to criminal misconduct. And as part of the Watergate legacy. Levi sought to make sure that the bureau was not misused for political purposes. The FBI would undertake probes for the White House, he said, only upon written request by specified high-ranking officials.

As it happened, even as Levi was announcing his guidelines, the FBI released last week some fresh details of just the sort of operation the new rules were designed to prevent:

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Most recent revelations of FBI harassment have involved left-wing groups such as antiwar organizations and the Socialist Workers Party. The newly released document showed that throughout the 1960s, the bureau had also waged a spirited and often imaginative counter-intelligence program - COINTELPRO, in bureau jargon - against right-wing outfits like the Ku Klux Klan and theAmerican Nazi Party.

Central to this campaign was a wholly fictitious organization, surreptitiously run from Washington, dubbed "The National Committee for Domestic Tranquility." In a coy touch of esoteric humor, some unknown wag in the Bureau christened the bogus organization's director "Harman Blennerhassett" - the name of an obscure financial supporter of Aaron Burr in the early nineteenth century. In thousands of mailings to unsuspecting Klansmen, the "committee" portrayed Klan leaders as Communist dupes or greedy grafters and parasites living off the membership.

"By placing themselves above the law of the land through the invocation of the Fifth Amendment," the committee wrote haughtily, "these irresponsible Klan leaders have joined hands with Communists who also always hide behind the Fifth Amendment." FBI field agents prodded the Klan with thousands of postcards, intentionally exposing the messages to outsiders along the way. One widely distributed postcard featured a cartoon of two Klansmen drinking at a bar over a caption, "Which Klan leaders are spending your money tonight?" The bureau also sent anonymous letters accusing various Klansmen of being FBI informants - which carried a double edge. They helped to protect the real informants, of whom there were at least hundreds, and they made Klansmen suspicious of almost everybody.

The FBI had a well-stocked bag of dirty tricks. It once faked a picture of a Miami Klansman consorting with Cuba's Fidel Castro. Upon learning that the Klan was holding a meeting in North Carolina, it called various motels in the area to cancel their room reservations. One Klan official was discovered to be receiving a veteran's disability pension while making $400 a month as a plumbing and electrical contractor; the G-men sicked the Veterans Administration on him to cut off his benefits, then for good measure alerted the Internal Revenue Service that he had not filed income-tax returns for several years.

Trinkets: Almost nothing was beneath the bureau's notice. COINTELPRO proposed an attempt to persuade Virginia GovernorMills E. Godwin Jr. to collect sales tax on trinkets sold at Klan rallies. The bureau seemed particularly upset with the Virginia Klan. A Washington memo, omitting any mention of attacks on blacks, noted the Klan had attacked the FBI. One Klan leader announced that it would be KKK policy to shoot any agent who appeared on its property.

In its campaign against the Nazi Party, the FBI informed party members that their Midwest coordinator was of Jewish descent, thus forcing his rapid expulsion. In the mid-'60s, the Chicago chapter of the party exhausted its meager financial resources to buy and repair a rundown building for use as it headquarters. After waiting until the job was completed, agents anonymously called Cook County inspectors who closed the building for technical violations.

The hitherto-secret FBI report also revealed that in its COINTELPRO campaign the bureau had carefully manipulated the press, leaking to friendly newsmen stories that were sometimes true and sometimes not. It provides prominent Southern publisher Ralph McGill with information to pass on to a colleague who was writing an article about the Klan for a national magazine. McGill is "a staunch and proven friend of the bureau," a memo from Washington to Atlanta said, and "would not betray our confidence."

Two members of the Virgil Griffin White Knights, a group that claims affiliation with the Ku Klux Klan, pose for a photograph in their robes ahead of a cross lighting ceremony at a private farm house in Carter County, Tennessee July 4, 2015. REUTERS/Johnny Milano

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Macomb County's clerk/register of deeds Karen Spranger has had a controversial start. Tanya Wildt/Detroit Free Press

Macomb County Clerk/Register of Deeds Karen Spranger in Macomb County Circuit Court on a motion in a lawsuit she filed against the county on Aug. 14, 2017.(Photo: Christina Hall, Detroit Free Press)Buy Photo

A Macomb County Circuit Court judge today recused herself from a civil lawsuit that the county clerk/register of deeds has filed against the county and its officials.

Judge Kathryn Viviano cited numerous reasons to recuse herself from Clerk/Register of Deeds Karen Spranger's lawsuit against the county, including avoiding any appearance of impropriety and that she personally has been involved in the court's e-filing project.

"In this county, there is a high level, which everyone knows,of dispute between the clerk and the county offices, including the court. There are substantial arguments and disputes going on and they have been escalating," Viviano said.

Related:

Karen Spranger: Agent of change or simply unqualified to hold Macomb clerk's job?

Macomb Co. clerk Karen Spranger invokes 5th Amendment in perjury complaint

Viviano said she can be fair and that she struggled with the decision, adding "this is a close call."

The county has filed a motion to file a counter-complaint in Spranger's lawsuit, seeking to disqualify her from office over her not living at a house in Warren that she said was her residence on an affidavit to run for office. That motion was not heard today because Viviano recused herself.

Viviano said this is"significant leave that is being requested" of the court. She said thedecision to remove someone from office is important not only for the litigants, but also for public and she said the appearance of impropriety needs to be avoided in all cases.

"I believe the judge made a very good decision," Spranger said after the hearing.

County Corporation Counsel said the case now will go to the chief judge who has denied several of Spranger's recommended appointees to the vacant deputy clerk position for reassignment. He said that could take a few days or maybe a week to reassign.

"I think it was very cautious," Schapka said of Viviano's ruling, but added that "it's a Macomb County case. This is the proper venue for the case."

Spranger has been controversial since she came into office in January, including a backlog in e-filing and a rise inemployee grievances about a hostile work environment.Spranger was fined for a county ethics violation, firedtwo deputies who are now suing her in federal court and is under investigation for lying about her residency in Warren on her affidavit of identify to run for office last year.

She invoked the Fifth Amendment and is not interviewing with sheriff's authorities investigating perjury in the residency question.

Spranger's attorney, Frank Cusumano, who on Friday asked for a change of venue in Spranger's lawsuitand the disqualification of all of the Macomb circuit judges, also believes Viviano made the correct decision to recuse herself.

Macomb County Circuit Court Judge Kathryn Viviano talks with lawyers regarding the lawsuit that county Clerk/Register of Deeds Karen Spranger filed against the county during a hearing Aug. 14, 2017.(Photo: Christina Hall, Detroit Free Press)

Viviano said that she didn't see that she had any authority to recuse the entire bench of judges, adding "I have to deny that straight up."

When asked if Spranger was qualified for the job, Cusumano said: "The voters have decided she's qualified." Spranger declined comment when she was asked the same question.

Among his arguments, Cusumano said the court is seeking to take over several efiling positions of the clerk and has petitioned to county commissioners for a change in the budget.

County commissioners soon will receive the county's proposed 2018 budget. As of last week, Spranger had not submitted proposed budgets for her offices. She is to appear before commissioners to discuss her budget Aug. 28.

Contact Christina Hall: chall@freepress.com. Follow her on Twitter: @challreporter.

Macomb County Clerk/Register of Deeds Karen Spranger and her attorney, Frank Cusumano, address the media after a hearing Aug. 14, 2017 on a lawsuit she has filed against the county.(Photo: Christina Hall, Detroit Free Press)

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Special Counsel Robert Mueller has opened a grand jury in Washington, D.C., for his investigation into Russian election meddling and possible coordination by Trump campaign associates, according to multiple news reports. We decided to review the significance of this move, so we asked legal experts for their views on several questions related to grand juries.

What is a grand jury and what is its job?

The grand jury traces its roots to the Fifth Amendment to the U.S. Constitution. That provision says that "(n)o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury."

When a court impanels a federal grand jury, jurors are tasked with figuring out whether enough evidence exists to formally accuse someone of a felony. Unlike a trial jury, a grand jury does not play a role in determining guilt or punishment. Rather, this panel of 16 to 23 citizens serves a gatekeeping function for issuing indictments.

In modern practice, the grand jury is a potent investigative tool for prosecutors, said Andrew D. Leipold, a law professor at the University of Illinois College of Law.

"People dont generally have a duty to cooperate with law enforcement," Leipold said. "So if the police or FBI questions someone, typically that person is not required to answer. And generally unless the police have a warrant, they cant make a person produce documents."

"But a grand jury can do that," he said.

In Muellers case, he could not conduct an effective investigation without a grand jury, said Ric Simmons, a law professor at Ohio State University.

"The prosecutor does not have subpoena power on his or her own," he said. "He or she needs the grand jury to issue subpoenas for documents and to compel testimony."

To issue an indictment, a grand jury needs to believe a federal crime was probably committed. This threshold, known as the "probable cause" standard, is a far easier hurdle to clear than the proof "beyond a reasonable doubt" needed to convict. Grand juries are also one-sided ordeals, where neither defendants nor their lawyers have the right to appear before jurors to refute incriminating evidence.

For these reasons, lawyers have a saying that any halfway decent prosecutor should be able to indict a ham sandwich. But its important to emphasize that someone who is indicted has not yet been found guilty, and may never be.

How has Special Counsel Robert Mueller used grand juries so far?

Muellers appointment in May as special counsel granted him fairly broad jurisdiction.

The Justice Department authorized him to lead an investigation into Russias interference in the 2016 election, as well as any links or coordination between the Russian government and Trump campaign associates, plus "any matters that arose or may arise directly from the investigation."

Grand juries are supposed to operate in secrecy, but because they issue subpoenas and compel testimony, their work sometimes becomes public. Our best understanding of how Mueller has used grand juries is based primarily on anonymously sourced news reports.

In June, Reuters reported that Mueller was taking over a grand jury investigation in Virginia that had been looking into former national security adviser Michael Flynn.

The investigation got fresh attention when the Wall Street Journal reported in August that a new grand jury had convened weeks earlier in Washington, D.C., to focus on his investigation.

That same day, Reuters reported the new grand jury had issued subpoenas related to a controversial June 2016 meeting at Trump Tower between Donald Trump Jr. and a Russian lawyer, and several others (CNN also reported on the subpoenas). The meeting was predicated on the promise that a "Russian government attorney" would deliver damaging information to Trump Jr. about his fathers Democratic opponent Hillary Clinton.

Why would Mueller open up a new grand jury?

While Muellers precise rationale for seeking more than one grand jury is not publicly known, legal experts told us its a fairly unsurprising move for a special prosecutor because it carries several advantages.

Grand juries typically divide their attention among multiple cases. So its possible Mueller believes he can operate more smoothly with a panel of jurors focused exclusively on whats potentially a large volume of information.

"In special investigations, rather than ordinary criminal cases, it is not uncommon to impanel a special grand jury," said Joshua Dressler, a law professor at Ohio State University. "This way, the jurors will become increasingly knowledgeable about the matters at issue, and they can focus on just one matter."

Theres a number of other theories for Muellers move.

Some believe his grand jury was meant to make it easier to broaden the scope of his investigation beyond Flynn.Others say a Washington-based jury would be more sympathetic. Still others say Mueller simply wanted a grand jury closer to his teams Washington office.

"Since the proceedings are secret, it is very hard to know which (if any) of these are correct," said Jed Shugerman, a professor at Fordham Law School.

Does the new grand jury mean an indictment is near?

Legal experts we spoke to fell into two camps on whether the existence of Muellers grand jury tells us anything about the likelihood of any future indictments.

Some experts think a grand jury by itself tells us nothing. Others said it increases the chances of indictments issuing at some future point, though none believed they were imminent.

Simmons said while a grand jury is a prerequisite for a future indictment, its also a required step in the early stages of an investigation.

"It simply means that Mueller did not believe the case was frivolous and decided a real investigation was appropriate," he said. "Thats something we all pretty much assumed already."

Leipold called the grand jurys impaneling "important but unremarkable" in the grand scheme of the investigation.

"I dont find any clues in its presence as to whether or not there will be an indictment or whether or not its imminent," he said. "I can imagine a world in which Mueller says, Im not inclined to seek an indictment, or, one in which he seeks lots of indictments."

Others viewed the new grand jury as a more meaningful development, but cautioned against jumping to any premature conclusions about its ultimate significance.

Jessica Levinson, a professor at Loyola Law School in Los Angeles, said that because of the relatively low probable cause standard -- recall the quip about indicting a ham sandwich -- she believes its more likely than not that at least one criminal indictment will issue.

"But none of this is a done deal," she added.

So what to make of the frenzied speculation in the Twitterverse about an indictment being issued any day now?

"I think people have overreacted to this news by thinking an indictment is imminent," Shugerman said.

Perhaps the only clue the grand jury gives as to Muellers timeline is that were in for a lengthy investigation, said Mark Godsey, a law professor at the University of Cincinnati and author of Blind Injustice, about the inner-workings of federal prosecutors' offices.

"I dont think it says much about timing, other than it suggests there is a lot of work to do, and that can impact how long the investigation lasts," he said.

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2017-08-10 15:47:15 UTC

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Correct about grand juries

"You cant read that (the impaneling of a grand jury necessarily) means that indictments are going to follow."

Adam Schiff

U.S. Rep, D-Calif.

CNN

Sunday, August 6, 2017

2017-08-06

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Does Mueller's grand jury mean an indictment is imminent? - PolitiFact