DOJ pursues websites linked to Russian disinformation

The US Department of Justice announced the seizure of 32 internet domains linked to an alleged Russian government-backed disinformation campaign aimed at influencing US and global audiences, reported Jurist.

According to the DOJ, the operation, known as “Doppelganger,” sought to sway public opinion in favor of Russian interests and interfere in the 2024 US presidential election. The campaign was allegedly orchestrated by several Russian organizations under the supervision of Sergei Kiriyenko, a senior official in the Russian Presidential Administration. These organizations utilized the domains to distribute pro-Russian propaganda and undermine international support for Ukraine.

Announcing the seizures, US Attorney General Merrick Garland said:

An internal planning document created by the Kremlin states that a goal of the campaign is to secure Russia’s preferred outcome in the election. The sites we are seizing today were filled with Russian government propaganda that had been created by the Kremlin to reduce international support for Ukraine, bolster pro-Russian policies and interests, and influence voters in the United States and other countries. Our actions today make clear that the Justice Department will be aggressive in countering and disrupting attempts by the Russian government, or any other malign actor, to interfere in our elections and undermine our democracy.

In conjunction with the DOJ seizures, the US Treasury Department announced it had imposed new sanctions against 10 individuals and two organizations linked to Doppelganger. The individuals designated for sanctions included Margarita Simonyan, chief editor of Russian state news broadcaster RT.

To read more CLICK HERE

Trump pursues desperate removal of hush money case to federal court

Former US President Donald Trump filed a motion to move his New York hush money case to federal court, an attempt that could overturn his conviction and delay his sentencing date until after the presidential election in November, reported Juris.

Trump’s legal team asked the US District Court for the Southern District of New York to take the case, claiming the Manhattan District Attorney’s Office “violated the Presidential immunity doctrine … by relying on evidence of President Trump’s official acts” while in office. The motion cited a recent decision by the US Supreme Court that ruled former US presidents are immune from criminal prosecution for their actions taken within their “official responsibility.”

The motion stated:

These ongoing harms must be stopped. The impending election cannot be redone. The currently unaddressed harm to the Presidency resulting from this improper prosecution will adversely impact the operations of the federal government for generations.

Trump’s attorneys also requested New York County Supreme Court Justice Juan Merchan’s recusal from the hush money case. The motion cited public statements made by Justice Merchan’s daughter in 2019 that “indicat[ed] that [Justice Merchan] had been critical of President Trump’s use of Twitter during his Presidency.” Trump’s team argued that these statements “confirm judicial bias and hostility towards President Trump’s 2018 Tweets, which are a core issue in the pending Presidential immunity motion.”

Trump’s team claimed Justice Merchan had a “conflict of interest” in the case since he “made improper contributions to Democrat interests” in 2020. The former president’s attorneys further claimed issues of bias because Justice Merchan’s daughter worked on current Vice President Kamala Harris’ 2019 presidential campaign and her company worked on President Joe Biden’s 2020 presidential campaign.

In March 2023, a grand jury returned an indictment charging the former president with 34 violations of falsifying business records in the first degree. Trump was convicted of all 34 felony counts in May. Trump had sent $130,000 in reimbursements to his attorney Michael Cohen for a hush money payment to adult film star Stormy Daniels, and prosecutors argued that he falsified records to conceal the hush money payments to unlawfully influence the outcome of the 2016 presidential election.

The former president filed a motion to dismiss the indictment and vacate the jury’s verdicts under the claim of presidential immunity, and the motion is currently pending before Justice Merchan. In July, Justice Merchan pushed Trump’s sentencing date in the case until September 18 so he could consider the presidential immunity claim. Trump’s team then requested the sentencing in his hush money case be postponed until after the November election, claiming the current scheduling would constitute election interference.

This is not Trump’s first attempt to remove the case from New York’s jurisdiction. A federal judge in 2023 rejected Trump’s first attempt, finding that the former president failed to show that the alleged conduct was related to his official responsibilities as the president. US District Judge Alvin K. Hellerstein stated, “Hush money paid to an adult film star is not related to a president’s official acts. It does not reflect in any way the color of the president’s official duties.”

To read more CLICK HERE

Obeying all laws is not reasonable suspicion for police to detain and search

It’s about the stupidest thing anyone could claim in defense of an unlawful detention and search, but Waterbury, CT police office Nicholas Andrzejewski did it anyway. He actually told a court (twice!) that someone respecting every single law applicable to them at the point of this unwelcome interaction was at least reasonable suspicion for a search, if not actual probable cause, wrote Tim Cushing in techdirt.

Here’s how this started, taken from the Second Circuit Appeals Court’s rejection [PDF] of the officer’s attempt to walk away from this civil rights suit:

At approximately 8:43 p.m. on November 12, 2018, Basel Soukaneh stopped his car with the engine running on the side of a street in Waterbury, Connecticut. Soukaneh’s iPhone GPS, located in a holder mounted to the car’s dashboard, was frozen, and he stopped his car to fix it. The area “was dark and [known as] a high crime area well known for prostitution, drug transactions and other criminal activity.”

Ah. The old boilerplate. These assertions about dark, high crime, drug area, blah blah blah presumably autofill whenever a cop starts a sentence explaining their reasonable suspicions on their incident report. It’s so overused and so devoid of actual facts that it’s become a parody of itself. Here’s Scott Greenfield’s take on this part of the officer’s narrative:

Was there articulable suspicion that a crime was being committed because Souhaneh stopped his car on the street? It was dark, as nights tend to be. It was in a high crime area, as is every area in pretty much any city anywhere. And yet, the court saw no problem with Andrzejewski demanding his license, for doing exactly what drivers are instructed to do by pulling over rather than driving while their attention is focused elsewhere. 

Any reasonable person will read this and realize that this self-proclaimed reasonable cop’s narrative has at least a couple of strikes against it. And that’s well before Officer Andrzejewski decided to convert this truly unnecessary non-stop into a full blown invasion of the interior of Soukaneh’s car and a constantly escalating series of rights violations.

Within seconds after Soukaneh stopped his car, Officer Nicholas Andrzejewski approached the vehicle, knocked on the driver’s side window, and according to Soukaneh, loudly demanded Soukaneh’s driver’s license. The interior vehicle light was on, so although the area was dark, Andrzejewski could see the activity inside of the car when he approached the window. As Soukaneh complied and handed his license over, he also provided Andrzejewski with a facially valid firearms permit. While doing so, Soukaneh also disclosed to Andrzejewski that, per the permit, he was in lawful possession of a pistol that was located in the driver’s side door compartment.

That this is being recounted in a court decision means the officer didn’t just take a look at the permit and wish Soukaneh a good evening. No, it went the other way. And it’s the sort of thing you need to shove directly in the eyeballs of every bootlicking person, police union rep, politician, and law enforcement official who claims police brutality only exists because people “don’t comply” and should just stop “breaking the law.” All laws were followed. Soukaneh did better than simply comply, he volunteered information. And this is what he got for being a model law-abiding citizen.

Following that exchange, Andrzejewski ordered Soukaneh out of the vehicle. According to Soukaneh’s description, Andrzejewski then violently “dragged [him] out of the car,” pushed him to the ground, yelled and screamed at him, handcuffed him, and pat-searched his person, recovering neither a weapon nor contraband. Andrzejewski then “shoved [Soukaneh] into the rear area of [Andrzejewski’s police] cruiser,” and left Soukaneh “bent over and partially on the floor of the vehicle.” Soukaneh remained “in that position, facing down and unable to see, until another police officer came along several minutes later and helped him sit up.”

Once the other officer repositioned Soukaneh in the cruiser, Soukaneh saw Andrzejewski search his “entire car, both front and rear,” as well as the car’s trunk. After the search, Andrzejewski returned to the cruiser and kept Soukaneh handcuffed and detained in it for an additional half hour, during which time “a group of seven to ten police officers gathered.” Id. At one point, Andrzejewski began writing on his onboard computer and turned to a fellow officer who had arrived at the scene and asked, “What should I write him up for?” The other officer laughed and the sergeant, who had also since arrived, told Andrzejewski what to write.

Unsurprisingly, the lower court rejected the officer’s request for immunity, pointing out that while the initial encounter may have been justified, nothing that followed that (pulling Soukaneh from the car, handcuffing him, searching his vehicle, detaining him for another half-hour while trying to figure out what to cite him with) was supported by probable cause.

The Second Circuit comes to the same conclusion. Simply being made aware Soukaneh possessed an item millions of Americans also own legally is not probable cause for anything the officer did past that point.

On the facts before us, Andrzejewski does not provide an articulable reason why he, or any
other reasonable officer, could conclude that there was probable cause to believe that Soukaneh possessed his firearm unlawfully in violation of Section 29-38(a). To find otherwise would consign those validly carrying firearms pursuant to a license to automatic detention because it would effectively presume that gun permits are invalid until proven valid, or that lawfully owned guns are per se contraband until proven otherwise. Such a finding would effectively render armed individuals’ Fourth Amendment rights meaningless when they are lawfully carrying firearms.

The same goes for the officer’s attempt to invoke qualified immunity by claiming no case on point would have made him aware he was not allowed to so thoroughly and lengthily violate this person’s rights. The Second Circuit says it’s not even sure why it’s spending so much time discussing this because it’s blatantly clear what happened here isn’t permissible under the Fourth Amendment.

This is not a close case, about which reasonable officers could differ. The law as it stood at the time of the events in question left no doubt that a person in possession of a firearm and a facially valid permit for that firearm had a clearly established right to be free from the kind of forcible and prolonged detention to which Soukaneh was subjected, absent any objective reason to suspect that the permit was forged or otherwise invalid.

That covers the forcible removal of Soukaneh from his car, his handcuffing, the search of his car, and his extended detention while the officer tried to come up with something to justify his actions after the fact.

It goes back to the lower court. But I imagine it will only be there briefly before Soukaneh is offered a settlement. Hopefully, that settlement will come hand-in-hand with the firing of Officer Andrzejewski. If this is the one time he got caught, just imagine what he’s gotten away with.

To read more CLICK HERE

Court: Police may not seize property indefinitely without arrest

The Fourth Amendment's protection against unreasonable searches and seizures extends to the length of a seizure, a federal court ruled last week, significantly restricting how long law enforcement can retain private property after an arrest, reported Reason.

"When the government seizes property incident to a lawful arrest, the Fourth Amendment requires that any continued possession of the property must be reasonable," wrote Judge Gregory Katsas of the U.S. Court of Appeals for the District of Columbia in a unanimous ruling.

Most courts of appeal to pass judgment on the issue—namely, the 1st, 2nd, 6th, 7th, and 11th circuits—have held that, once an item is seized, law enforcement can retain the item indefinitely without violating the Fourth Amendment. These precedents have allowed police to retain personal property without clear legal grounds, effectively stripping people of their property rights merely because they were arrested. The D.C. Court of Appeals' ruling complicates this general consensus.

Though law enforcement does not have to return property "instantaneously," Katsas wrote, the Fourth Amendment requires that any "continuing retention of seized property" be reasonable. So while police can use seized items for "legitimate law-enforcement purposes," such as for evidence at trial, and are permitted some delay for "matching a person with his effects," prolonged seizures serving no important function can implicate the Fourth Amendment, the court ruled.

Given that the D.C. court finds itself in the minority on the question, some say that the case may be primed for the Supreme Court if the District chooses to appeal. "This case has potential to make national precedent," Paul Belonick, a professor at the University of California, San Francisco law school, tells Reason. "The influential D.C. Circuit deliberately intensified a circuit split and put itself in the minority of circuits on the question, teeing it up cleanly for certiorari."

The plaintiffs each had their property seized by D.C.'s Metropolitan Police Department (MPD). Five of the plaintiffs were arrested during a Black Lives Matter protest in the Adams Morgan neighborhood of D.C. on August 13, 2020.

As they were arrested, MPD officers seized their phones and other items. Though the protesters did not face any charges and were, in Katsas' words, "quickly released," MPD retained their phones for around a year. Some of the plaintiffs had to wait over 14 months to get their property back.

In the meantime, the plaintiffs say that they were forced to replace their phones and lost access to the important information on the originals, including personal files, contacts, and passwords. "The plaintiffs have alleged that the seizures at issue, though lawful at their inception, later came to unreasonably interfere with their protected possessory interests in their own property," Katsas explained.

"MPD is aware of the ruling and will continue to work with our partners at the United States Attorney's Office to ensure that our members are trained appropriately to ensure compliance with recent rulings," a spokesperson for MPD tells Reason.

"Practically, this case is important because police have been exploiting a gap in the Fourth Amendment," Andrew Ferguson, a professor at American University's Washington College of Law, tells Reason. "In situations where there is a lawful arrest, but no prosecution, there are no clear rules on retaining personal property. In these cases, police have been confiscating phones to punish protestors."

Michael Perloff, the lead attorney for the plaintiffs, agreed that the D.C. Circuit's decision could set an important precedent going forward. "Nationally, we've seen litigants attempt to challenge similar practices only to fail because the court concluded that the Fourth Amendment does not limit the duration of a seizure," he tells Reason. "Moving forward, we are hopeful that the D.C. Circuit's opinion will lead courts to reconsider those rulings and, instead, enforce the Fourth Amendment as fully as the framers intended."

To read more CLICK HERE

'Smith’s case remains strong' after immunity ruling, 'mini-trial' should start soon

In the coming weeks or months, a federal district court will have the opportunity to apply the Supreme Court’s recent ruling on the scope of a former president’s immunity from criminal liability, reported Just Security. The decision has been accurately described, by Akhil Amar and others, as one of the worst in the Court’s history because of the leeway it gives a president to commit crimes and its expansion of exclusive executive authority. However, the Court’s ruling shields only some official presidential conduct from criminal prosecution. Unofficial acts are not covered by immunity, and not all official acts are absolutely immune. A key question in the January 6 case becomes which of the specific acts alleged in the indictment are immune under the Court’s new test and which aren’t. The Court gave important “guidance” (its term), but largely left that question for the trial court to answer in the first instance. The trial court’s process for answering that question will involve an evidentiary inquiry, and perhaps hearings, to assess alleged facts relevant to the legal test.

On our view, the Court’s decision leaves the core of the case against Trump intact. A fair application of the Court’s new immunity test to the indictment’s allegations yields a narrowed but still plainly viable prosecution. As we write, the trial court and the parties are preparing to grapple with this issue. On Saturday, August 3, Judge Tanya Chutkan—the trial judge presiding over the case—issued an order requesting the parties to propose a schedule for the remaining pretrial proceedings. The order also scheduled a status conference for August 16, at which the court may decide the path forward. The application of the immunity test will likely be a central part of that process.

In this essay, we discuss how the trial court should approach applying the Supreme Court’s ruling. We believe that as soon as possible following the status conference, Judge Chutkan should schedule an evidentiary hearing—a “mini-trial,” in which documents and witnesses are presented—to determine the scope of the immunity in this case. Our examination of the new immunity rule and the specific allegations against Trump indicate that Smith’s case remains strong and should survive that inquiry with key elements remaining unscathed.

To read more CLICK HERE

Surprise! Trump appointee Judge Aileen Cannon dismissed all charges in classified document case

Surprise!  Just in time for the GOP National Convention, United States Federal District  Judge Aileen Cannon dismissed all charges against Donald Trump in a case alleging the former president mishandled classified documents after leaving office, reported Jurist. The ruling centered on Senior Counsel Jack Smith, whose appointment to prosecute the case was ruled unconstitutional.

In November 2022, US Attorney General Merrick Garland appointed Jack Smith to serve as special counsel with oversight of two investigations related to Trump. Clear conflict-of-interest issues would have marred prosecutorial efforts by the Justice Department of current US President Joe Biden, Trump’s two-time opponent for the White House. In such politically sensitive cases, or where it would otherwise be in the public interest to do so, US law provides for the appointment of a special counsel — an independent officer who is authorized to investigate and, if appropriate, prosecute politically divisive allegations.

First, Smith was tasked with investigating whether Trump attempted to interfere with the 2020 election that ended his presidency, and the subsequent transfer of power to Biden. Second, he was to continue an investigation that had turned up multiple classified documents in various unsecured locations throughout Trump’s primary Florida residence, Mar-a-Lago. In the summer of 2023, Smith unveiled indictments in both investigations.

Trump moved to dismiss the classified documents indictment, arguing Smith’s appointment by Garland violated the Appointments Clause of the US Constitution, which states in relevant part that the president has the authority to:

…nominate, and by and with the Advice and Consent of the Senate … appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

The clause serves as a check on executive power by ensuring key government officials are vetted by both the executive and legislative branches, thereby preventing either branch from wielding unchecked authority to fill key positions. Notably, its use of the general term “all other Officers of the United States,” paired with the specific use of “such inferior Officers, as [Congress thinks] proper” leaves room for interpretation.

If Smith were considered among the “other” group, his appointment would have required presidential nomination and legislative consent. If he were in the “inferior” group, the requirements could be more flexible. Smith argued he qualified as an “inferior” officer, thus validating his appointment by the US Attorney General.

In Monday’s ruling, District Judge Aileen Cannon reluctantly, and only for limited purposes, accepted Smith’s claim that as special counsel he was an “inferior” officer, but found his appointment violated the clause regardless:

the Appointments and Appropriations challenges as framed in the Motion raise the following threshold question: is there a statute in the United States Code that authorizes the appointment of Special Counsel Smith to conduct this prosecution? After careful study of this seminal issue, the answer is no. None of the statutes cited as legal authority for the appointment … gives the Attorney General broad inferior-officer appointing power or bestows upon him the right to appoint a federal officer with the kind of prosecutorial power wielded by Special Counsel Smith. Nor do the Special Counsel’s strained statutory arguments, appeals to inconsistent history, or reliance on out-of-circuit authority persuade otherwise. … The bottom line is this: The Appointments Clause is a critical constitutional restriction stemming from the separation of powers.

Cannon suggested that for such an appointment to be valid, the Special Counsel would need to be nominated by the President and confirmed by the Senate, or Congress would need to pass new legislation consistent with the Appointments Clause.

Trump’s latest court victory follows a Supreme Court decision granting him sweeping prosecutorial immunity for acts considered to be in the outer bounds of his official duties as president. In May, he was convicted of 34 felony counts of falsifying business records. US law does not prevent a convicted felon from holding the nation’s highest office. Trump has long maintained that all cases pending against him are the product of political persecution. Following the release of Monday’s decision, he wrote via social media that all cases pending against him should be dismissed:

The Democrat Justice Department coordinated ALL of these Political Attacks, which are an Election Interference conspiracy against Joe Biden’s Political Opponent, ME. Let us come together to END all Weaponization of our Justice System, and Make America Great Again!

The news comes days after Trump was shot in an apparent assassination attempt.

His chief opponent in the 2024 White House race, Biden, was separately accused of mishandling classified materials after his tenure as vice president to Barack Obama. The Justice Department announced its decision not to prosecute earlier this year. That case was also led by a special counsel, Robert K. Hur, who concluded prosecution would be inappropriate because the evidence failed to establish the president’s guilt beyond a reasonable doubt.

To read more CLICK HERE

In 23 years Chicago has paid out $700 million in cases were police framed suspect

Multimillion-dollar payouts come before the Chicago City Council on an almost monthly basis, with the largest sums typically going to victims of police misconduct. Since 2000, the city has paid out nearly $700 million in 300 cases in which people said they were framed by Chicago police, reported the Chicago Sun-Times.

Of that, $138 million went to outside lawyers who defended the city.

The tally covers only federal lawsuits and does not include fees awarded to the plaintiffs’ lawyers. Also not included are police-related lawsuits alleging misconduct such as false arrest and excessive force, or for crashes and fatal shootings.

“The city is looking at, easily, a billion-dollar liability over the last 23 years, with plenty more on tap,” said Andrew M. Stroth, a civil rights attorney whose nonprofit organization, Truth, Hope & Justice, collaborated on the report with the global law firm Ropes & Gray, the Law Firm Antiracism Alliance and Chicago-based insurance and risk management firm Aon.

Stroth is currently representing James Gibson in a lawsuit against the city, alleging he was tortured by former Chicago police Cmdr. Jon Burge into a false confession that landed him in prison for nearly 30 years.

“As far as I can tell, they have no strategy for how they evaluate these cases,” Stroth said. “And that is delaying justice for men like James Gibson at phenomenal costs to taxpayers.”

Law Department spokeswoman Kristen Cabanban said Wednesday that “the city is keenly aware of the complexity and special challenges presented by reversed conviction cases and continues to give careful attention to these cases both individually and as a group.

“However, the Law Department cannot comment publicly on ongoing litigation or provide litigation assessment,” she added. “Nor do we authorize the firms we engage to comment because doing so is inconsistent with our professional obligations and could jeopardize efforts to resolve these matters in a way consistent with the city’s best interests.” 

Rivera was one of the first people to be exonerated based on claims of misconduct against former Chicago police Det. Reynaldo Guevara. The report lists 11 active lawsuits involving claims against Guevara.

To read more CLICK HERE

 

DOJ fights cameras in court for Trump's alleged election overthrow trial

The Justice Department formally urged a federal judge to reject calls by news organizations and by former president Donald Trump’s defense to allow live television coverage of his federal trial in March on charges of illegally conspiring to subvert the results of the 2020 election, joining a potentially historic legal battle over public access to the federal courts, reported the Washington Post.

Last month, lawyers for a coalition of news organizations including The Washington Post and for the corporate parent of NBC News filed two petitions in Washington asking U.S. District Judge Tanya S. Chutkan to make an exception to the long-standing rule barring cameras from federal courtrooms for Trump’s case and to permit the televising, recording, or same-day release of video and audio recordings of his trial.

“Since the founding of our Nation, we have never had a criminal case where securing the public’s confidence will be more important than with United States v. Donald J. Trump,” attorneys for the 20-member news coalition wrote in an Oct. 5 application. They asserted that the trial of a former president and presumptive 2024 presidential nominee on charges of obstructing the most recent election “presents the strongest possible circumstances for continuous public oversight of the justice system.”

In a separate sworn statement supporting NBC’s request, Rebecca Blumenstein, the president of editorial for NBC News, urged the video recording of Trump’s proceedings for posterity, saying, “It would be a great loss if future generations of Americans were forever deprived of being able to access and view the events of this trial even years after the verdict, which would immeasurably improve the ability of future journalists and historians to retell accurately and meaningfully analyze this unique chapter of American history.”

Trump’s defense took no position on the media’s request to the court, but his attorney John Lauro repeatedly called for the election subversion case to be televised before and after Trump’s indictment, adding in a Fox News interview, “and I would hope the Department of Justice would join in that effort so that we take the curtain away and all Americans get to see what’s happening.”

Ordered by Chutkan to respond by Friday, prosecutors with special counsel Jack Smith said that the court’s hands were tied, arguing that the media applicants’ proposal “is clearly foreclosed under 

Courts have long upheld the rule’s constitutionality, and the federal judiciary reaffirmed the policy in criminal cases as recently as September, assistant special counsels James I. Pearce and John M. Pellettieri wrote in an 18-page filing for the Justice Department, adding, “Whatever policy the Applicants believe supports their requested relief is not properly directed to the Court. … This Court should deny the Applications.”

Since the dawn of the television age, federal courts have prohibited cameras in the courtroom, wary of feeding what the Supreme Court called in a landmark 1966 decision a “carnival atmosphere” of publicity that could intimidate witnesses, sway jurors, prompt grandstanding by attorneys or judges or deprive criminal defendants of their due process rights. That fear was exacerbated nearly three decades ago by the nine-month televised criminal trial and acquittal of retired football star O.J. Simpson on state murder charges in California.

But leaps in technology, the recent coronavirus pandemic emergency and increasing experimentation by federal courts with live or recorded streaming of oral arguments have led some lawmakers and advocates to ask whether Trump’s case might mark a fresh tipping point in the debate, or at least provide the impetus for incremental changes such as the archiving of video or the prompt release of audio recordings.

“I have my skepticisms about whether these courtroom-camera efforts can prevail, but it is also unquestionably the case that the argument for cameras here is at its all-time strongest,” University of Utah law professor RonNell Andersen Jones wrote in an email, adding, “It is hard to imagine any case or any defendant in the whole history of our federal courts that is as central to the public interest as this one.”

Jones said traditional concerns about creating a “circus atmosphere” or causing problems for witnesses or defendants can be addressed by limiting access to one camera or releasing footage after court approval. “Audio streaming,” she said, “although it would rob the audience of the key visual cues and still give rise to misinformation-laden disputes about interpretation, would be another option that would at least give the general public more concrete information about what is happening.”

Trump has pleaded not guilty to an Aug. 1 indictment accusing him of a criminal conspiracy to remain in office, obstruct Congress’s lawful certification of Joe Biden’s victory and deprive Americans of their civil right to have their votes counted. 

The case is one of four felony prosecutions launched this year against Trump. They include similar allegations by Georgia officials of trying to obstruct that state’s election results. He also has been federally indicted in Florida over his alleged retention and mishandling of classified documents and obstruction after leaving the White House, and is accused in New York state of business fraud and covering up a hush money payment made during the 2016 election campaign.

Trump’s federal cases both fall under the rule barring televised courtroom proceedings. New York state courts have a similar ban, although acting New York Supreme Court justice Juan M. Merchan permitted photographers to record still images before Trump’s arraignment in April, over Trump’s objections. By contrast, Trump’s Georgia court is expected to permit telecasting of his trial, and it streams all hearings on the court’s YouTube channel and permits a “pooled” news television camera in the courtroom.

The news media coalition pointed out that Trump’s Senate impeachment trial after the Jan. 6, 2021, attack on the U.S. Capitol and hearings of the House select committee that investigated events surrounding the rioting were both nationally televised, drawing opening-day television audiences averaging more than 11 million and 20 million, respectively, not counting online viewers.

A legal team led by Charles D. Tobin, of the Ballard Spahr law firm, argued in a letter to the federal judiciary that with Trump himself campaigning for the presidency by claiming that his criminal prosecutions are “election interference” by prosecutors, allowing the public to see for itself would alleviate, not intensify, challenges to the legitimacy of the rule of law.

“If Americans do not have confidence that Mr. Trump is being treated fairly by the justice system, there is a very real chance they will reject the verdict (whatever it is) and that their faith in democracy and our institutions will be further diminished,” Tobin and attorney Leita Walker wrote. “Recent and painful events in our Nation’s Capital show that, taken to an extreme, this sort of doubt and cynicism can lead to violence.”

Trump and the news media are not alone in seeking to speed change in the federal judiciary. Dozens of Democratic lawmakers and a spokesperson for the Republican-led House Judiciary Committee have said they support cameras in court in the “limited but extraordinary circumstance” of Trump’s election obstruction case, and the full House has voted in the past for such changes.

A bipartisan group of senators also introduced legislation this year before Trump’s federal indictments to grant federal judges discretion to allow cameras while protecting the identities of witnesses and jurors.

“If the public is to fully accept the outcome, it will be vitally important for it to witness, as directly as possible, how the trials are conducted, the strength of the evidence adduced and the credibility of witnesses,” Rep. Adam B. Schiff (D-Calif.) wrote to the federal judiciary in August in regard to Trump’s case.

The pandemic did usher in revolutionary changes in federal and state courts, which were compelled to adopt live-streaming because of pandemic restrictions on indoor gatherings that affected jurors, attorneys, court staffers and the public. The Supreme Court began live-streaming audio of oral arguments, and all federal appellate courts, including the one in D.C., make audio of oral arguments available online.

Under since-expired federal pandemic emergency legislation, U.S. trial courts around the country also allowed federal criminal proceedings to take place by video or audio conferencing, with many allowing the public to access the proceedings by phone or online.

In a milestone proceeding, the televised state trial of former Minneapolis police officer Derek Chauvin, who was found guilty of murder and manslaughter in the death of George Floyd, won praise from many past critics of the exclusionary practice. The Minnesota Supreme Court afterward granted all district courts in that state broad discretion to allow video coverage of most criminal trials.

To read more CLICK HERE

Montana judge blocks restrictions on public drag performances

Chief District Judge Brian Morris issued a preliminary injunction that blocked the state of Montana from instituting and enforcing its restrictions on drag performances in public venues, reported Jurist. The case is in the US District Court for the District of Montana Butte Division.

Morris found that the plaintiffs in the case were likely to succeed on the merits of their claims that House Bill 359 is unconstitutional because it violates the First and Fifth Amendments to the US Constitution.

On the First Amendment claim, Morris noted that 359 imposes both content-based restrictions and viewpoint-based regulation, which leads to a strict scrutiny analysis. To pass strict scrutiny, the legislature must have passed the law to further a compelling governmental interest and narrowly tailored the law to achieve that interest. Morris also noted that 359’s legislative history provided “substantial evidence” that an “impermissible purpose” was behind 359’s enactment. This impermissible purpose was to “target the speech and expression of LGBTQ+ community members, particularly trans, Two-Spirit, and gender non-conforming people.” Morris then concluded that 359 was not narrowly tailored to serve a compelling state interest because “[f]orcing protected expression to take place under a cover of darkness, rather than banning it outright, does not save H.B. 359 from constitutional infirmity.” Thus, Morris concluded that the plaintiffs would likely succeed on their First Amendment challenge. 

For the Fifth Amendment challenge, Morris found that 359 is likely unconstitutionally vague and overbroad. Morris noted that the law “fails to define the conduct it criminalizes ‘with sufficient definiteness that ordinary people can understand what conduct is prohibited.'” Morris also noted that there was “no evidence” submitted that minors face any harm from drag-related events.

House Bill 359 prohibits minors from attending “sexually oriented shows.” Additionally, the law bans drag story hour in public schools and libraries and bans “sexually oriented performances” in public schools, public libraries and public property where minors are present.

This is not the only litigation revolving around state bans on drag performances. Last month, a US federal judge in Texas ruled that the state’s ban on drag performances was unconstitutional and blocked it from going into effect.

To read more CLICK HERE

NJ Senator Menendez charged with being an agent for Egypt

U.S. Sen. Bob Menendez of New Jersey has now been charged  with conspiring for years to act as an agent of the Egyptian government while he held a powerful role in shaping U.S. foreign policy, putting the Democrat in deeper legal trouble as he continues to reject calls to resign, reported The Associated Press.

The superseding indictment in Manhattan federal court accuses Menendez of violating the Foreign Agents Registration Act, which requires people to register with the U.S. government if they act as “an agent of a foreign principal.” As a member of Congress, Menendez was prohibited from being an agent of a foreign government.

The new charge comes weeks after Menendez and his wife were accused of accepting bribes of cash, gold bars and a luxury car from three New Jersey businessmen who wanted the senator’s help and influence over foreign affairs.

The new indictment says a conspiracy occurred from January 2018 to June 2022, alleging that Menendez “promised to take and took a series of acts on behalf of Egypt, including on behalf of Egyptian military and intelligence officials.” It said he conspired to do so with his wife, Nadine, and a business associate and fellow defendant, Wael Hana.

According to the indictment, Hana and Nadine Menendez also communicated requests and directives from Egyptian officials to Menendez.

Hours after the latest charge was revealed, Menendez issued a statement, saying it “flies in the face of my long record of standing up for human rights and democracy in Egypt and in challenging leaders of that country, including President (Fattah) El-Sisi on these issues.”

“I have been, throughout my life, loyal to only one country — the United States of America, the land my family chose to live in democracy and freedom,” he added. ”Piling new charge upon new charge does not make the allegations true. ... I again ask people who know me and my record to give me the chance to present my defense and show my innocence.”

To read more CLICK HERE

Texas woman arrested for threatening to kill federal Judge in Trump's election interference case

A Texas woman was arrested for threatening to kill the federal Judge presiding over former President Donald Trump’s 2020 election interference case in Washington, DC.

According to the indictment, Abigail Jo Shry called the chambers of US District Court Judge Tanya Chutkan on August 5. She allegedly stated “you are in our sights, we want to kill you” and “we want to kill Sheila Jackson Lee.” After threatening to kill Chutkan and Sheila Jackson Lee, Shry allegedly stated “if Trump doesn’t get elected in 2024, we are coming to kill you, so tread lightly…” Shry then threatened to “kill all democrats in Washington DC” as well as “all people in the LGBTQ community.”

Two days after the call Department of Homeland Security (DHS) agents conducted a “knock and talk” at Shry’s residence in Alvin, Texas. Shry admitted to DHS agents that she made the call to Judge Chutkan’s chambers. Shry told DHS agents that she had no plans to travel to Washington, DC, yet stated that “if Sheila Jackson Lee comes to Alvin, [Texas]” that DHS would “need to worry.”

Shry’s father testified at her detention hearing that Shry is non-violent and is suffering from substance use disorder. Shry’s detention order alleges Shry was already charged with making threats of bodily harm and was out on bond when she made the threats to Chutkan.

Shry is charged with violating 18 USC 875(c), which criminalizes communicating a threat to kidnap or injure a person across state lines. The maximum penalty is five years imprisonment.

To read more CLICK HERE

Virginia court strikes down law prohibiting the sell of handguns to teenagers

A federal judge in Virginia has declared unconstitutional a set of laws and regulations that prohibit federally licensed firearms dealers from selling handguns to 18-to-20-year-olds, finding that the measures violated the Second Amendment, according to the Washington Post.

“Because the statutes and regulations in question are not consistent with our Nation’s history and tradition, they, therefore, cannot stand,” U.S. District Judge Robert E. Payne, who sits in Richmond, concluded in a 71-page opinion.

Gun-control advocates say the decision, if allowed to stand, would significantly increase gun access for a population that research shows is more impulsive and responsible for a disproportionate number of fatal shootings. But attorneys on both sides of the case said they expected the Justice Department to appeal and request a stay, which would prevent Payne’s ruling from taking effect while higher courts weigh the case.

Elliott M. Harding, the attorney who argued to nullify the laws and regulations, said people under 21 years old are, for the moment, not allowed to purchase handguns from licensed dealers because a final order had not been entered. The judge set a May 18 deadline for attorneys to submit recommendations “for future proceedings in this matter.”

Although 18-to-20-year-olds previously could buy handguns in private sales — or have a parent purchase a weapon for them — the decision issued in this case would dismantle a legal framework that for decades has prevented licensed dealers from selling handguns “to teenagers,” said William T. Clark, an attorney with the Giffords Law Center to Prevent Gun Violence, which filed an amicus brief in the case calling for the laws at issue to be upheld.

“It’s a significant decision — we disagree with the outcome,” Clark said, adding that “there is compelling scientific evidence showing that teenagers are more impulsive and face unique elevated dangers from firearms.”

Attorneys in the case noted that 18-year-olds already were allowed to purchase some firearms such as shotguns and rifles — but not handguns sold by the nation’s nearly 53,000 licensed dealers, as tallied by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF).

Payne, who was nominated to the bench by President George H.W. Bush, repeatedly cited the Supreme Court’s decision in New York State Rifle and Pistol Association v. Bruen, a ruling from the high court’s conservative majority that expanded the right to bear arms last year.

The plaintiff in the Virginia case, John Corey Fraser, was 20 years old when he attempted to buy a Glock 19x handgun from a federally licensed dealer in May 2022 and was turned away, according to the lawsuit he filed last year. He challenged the constitutionality of the Gun Control Act of 1968 and federal regulations from ATF that limit the sale of handguns to adults 21 years and older.

To read more CLICK HERE

Ahmaud Arbery's killers set to be sentenced for hate crime in Federal Court

The three white men convicted of killing 25-year-old Black jogger Ahmaud Arbery because of his race are due back in the Brunswick federal courthouse on today for sentencing, reported GPB/NPR's Benjamin Payne.

The three white men who murdered 25-year-old Black jogger Ahmaud Arbery in 2020 outside Brunswick are scheduled to be sentenced Monday for their federal hate crime convictions.

Travis McMichael, his father Greg McMichael, and neighbor William “Roddie” Bryan are already serving life sentences, after they were found guilty in a separate state trial last year of murdering Arbery as he was running through the Satilla Shores neighborhood in Glynn County.

The three men could each face an additional life sentence, after a federal jury in February found that they killed Arbery because of his race. They were also found guilty of attempting to kidnap Arbery. Additionally, the McMichaels were convicted on firearms charges.

U.S. District Judge Lisa Godbey Wood will hand down their sentences in separate hearings at the Brunswick federal courthouse, beginning with Travis McMichael at 10 a.m., then Greg McMichael at 1 p.m., and Bryan at 3 p.m.

Before the hate crimes trial began, Wood rejected plea deals that prosecutors offered to the McMichaels, which would have seen them serve time first in federal prison, which is generally seen as preferable to Georgia's state prisons.

Brunswick-based attorney Page Pate, who is not involved with the case but has practiced federal law for more than 25 years, told GPB News that the terms of those proposed plea deals were highly unusual.

“I cannot think of a single time where I've even had discussions about having the person's federal time basically take priority over state time, when there's been a prior state conviction,” Pate said. “That almost never happens in federal court.”

To read more CLICK HERE

Federal Court denies absolute immunity to prosecutor who fabricated evidence

 A Louisiana prosecutor and a detective lost their bids for absolute immune from a former murder defendant’s lawsuit alleging that they intimidated a juvenile witness to adopt a narrative about the crime they conjured from whole cloth, reported Bloomberg.

The prosecutor was acting as an investigator, rather than an advocate, and thus isn’t entitled to absolute prosecutorial immunity, Judge James L. Dennis said Tuesday. Police officers also aren’t “entitled to the absolute immunity reserved for a prosecutor,” the court said.

The 1998 murder of a pizza delivery driver in Livingston Parish, La., was a cold case until a jail-house informant implicated Michael Wearry. Although Wearry had an alibi, district attorney Scott Perrilloux and detective Marlon Foster allegedly intimidated a juvenile facing prosecution on other charges into testifying that he saw Wearry near the crime scene.

Wearry was convicted for the murder and sentenced to death, but the U.S. Supreme Court overturned the conviction, and the juvenile recanted his testimony. When Wearry sued Perrilloux and Foster for violating his civil rights by fabricating evidence, they both claimed absolute immunity.

Absolute immunity applies only when a prosecutor is performing advocatory functions, such as organizing, evaluating, and presenting evidence, the U.S. Court of Appeals for the Fifth Circuit said. The doctrine doesn’t apply to investigatory functions, such as gathering or acquiring evidence, it said.

Perrilloux and Foster detained and coerced the juvenile into testifying to a narrative that had no basis in any evidence gathered in the case, the court said. Fabricating evidence is evidence creation, which is not part of the advocate’s role, but a corruption of the investigator’s function of searching for clues and corroboration, it said.

Foster argued that since he and Perrilloux were accused of the same fabricating acts, Perrilloux entitlement to absolute immunity should apply to him, too. Not only has the Supreme Court rejected that exact argument, Perrilloux isn’t immune from Wearry’s suit, the court said.

Judge Carolyn Dineen King joined the opinion.

In a dubitante opinion questioning the continued validity of absolute prosecutorial immunity, Judge James C. Ho said “governing precedent requires us to grant prosecutorial immunity in this case.”

The Roderick & Solange MacArthur Justice Center represented Wearry. The Moody Law Firm represented Perrilloux. Breazeale, Sachse & Wilson LLP represented Foster.

The case is Wearry v. Foster, 2022 BL 153489, 5th Cir., No. 20-30406, 5/3/22.

To read more CLICK HERE

TCR: Defending the Presumption of Innocence

Matthew T. Mangino
The Crime Report
April 28, 2022

In a rare bipartisan vote, the U.S. House of Representatives earlier this month overwhelmingly agreed to stop the unconscionable practice of enhancing a federal offender’s sentence based on conduct for which the offender was previously acquitted.

The House voted by a margin of 405 to 12 for the Prohibiting Punishment of Acquitted Conduct Act of 2021, which would end the current practice of federal judges considering, for purposes of enhancing a defendant’s sentence, conduct for which a jury found the defendant not guilty.

The Supreme Court has called the right to a jury trial one of the foundations of American law. There are two principles that are fundamental in American jurisprudence.  First, an accused is presumed innocent until proven guilty; and second, the government must prove guilt beyond a reasonable doubt.

The presumption of innocence is not guaranteed in the U.S. Constitution. However, through laws and court decisions it has been recognized as one of the most basic requirements of a fair trial.

On the other hand, the Due Process Clause of the Fourteenth Amendment protects the accused against conviction “except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime charged.”

Jurors are instructed before deliberations about the government’s burden of proof.

The instructions normally include some variation of the following, “It is not required that the government prove guilt beyond all possible doubt.”  The test is one of reasonable doubt.  A reasonable doubt is a doubt based on reason and common sense—the kind of doubt that would make a reasonable person hesitate to act.

“Beyond a reasonable doubt” is a heavy burden, and it should be.

As English jurist William Blackstone famously wrote in his 18th century Commentaries, “It is better that ten guilty persons escape than that one innocent suffer.”

However, on a federal level, once a defendant has been convicted by a jury, sentencing is generally a matter within the province of the judiciary. As a result, “beyond a reasonable doubt” flies out the window when it comes to sentencing.

The U.S. Supreme Court has held that acquitted conduct may be considered by a judge for sentencing.

As the practice exists today, the defendant was accused of a crime.  Twelve jurors found the defendant not guilty, but at a subsequent proceeding the acquitted conduct can be used to enhance the defendant’s sentence on an unrelated matter.

In 2020, a former federal judge and a group of law professors suggested, in a friend of the court brief, that a judge considering acquitted conduct results in “judicial nullification of juries.”

The scholars went on to argue, “Enhancing a defendant’s sentence based on acquitted conduct is not only something that the jury’s verdict ‘failed to authorize,’ it relies upon ‘facts of which the jury expressly disapproved.’”

In 2014, Justice Antonin Scalia, joined by Justice Clarence Thomas and—an unlikely ally— Justice Ruth Bader Ginsburg, wrote in a dissenting opinion opposing the Court’s refusal to hear a case about acquitted conduct, this Court must “[P]ut an end to the unbroken string of cases disregarding the Sixth Amendment.”

In a press release supporting Prohibiting Punishment of Acquitted Conduct Act, co-sponsors  Rep. Kelly Armstrong (R-ND), and Rep. Steve Cohen D-TN), said when the bill was sent from the Judiciary Committee to the full house, “The right of criminal defendants to be judged by a jury of their peers is a foundational principle of the Constitution.”

They continued: “The current practice of allowing federal judges to sentence defendants based on conduct for which they were acquitted by a jury is not right and is not fair.”

Last summer, the Senate version of the House bill, Bill 601, Punishment of Acquitted Conduct Act, co-sponsored by Senate Judiciary Chairman Dick Durbin of Illinois, and Sen. Chuck Grassley of Iowa, was approved by the Senate Judiciary Committee.

The full U.S. Senate needs to act quickly to correct this Constitutional inequity and send the Prohibiting Punishment of Acquitted Conduct Act to the President for his signature.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly and George. P.C. and the former district attorney of Lawrence County, PA.   He is the author of The Executioner’s Toll. You can follow him on twitter @MatthewTMangino or contact him at mmangino@lgkg.com.

To read more CLICK HERE