Saturday, July 15, 2017

U.S. Dept. of Justice investigation into mental health screening by Fla. Supreme Court on bar applicants

A FOIA response May 18, 2017 confirms a U.S. Department of Justice investigation into the mental health screening imposed by the Florida Supreme Court on bar applicants. Nelson D. Hermilla, Chief, Freedom of Information/Privacy Acts Branch, Civil Rights Division, wrote,

Dear Mr. Gillespie: This is in response to your April 29, 2015 Freedom of Information Act request, received by the Civil Rights Division, seeking access to records on the U.S. Department of Justice investigation into the mental health screening imposed by the Florida Supreme Court on bar applicants.

The records you have requested pertain to an ongoing law enforcement proceeding. After
consideration of the responsive records, I have determined that access to the documents should be denied pursuant to 5 U.S.C. §552(b)(7)(A), since disclosure thereof could reasonably be expected to interfere with law enforcement proceedings. I have further determined that certain information within these records that is exempt from disclosure pursuant to 5 U.S.C.§552(b)(7)(A) should also be denied pursuant to 5 U.S.C. §552(b)(5), since the records consist of attorney work product and include intra-agency memoranda containing pre-decisional, deliberative material; and 5 U.S.C. §552(b)(7)(C) since disclosure of information contained in these records could reasonably be expected to constitute an unwarranted invasion of personal privacy...

The Florida Board of Bar Examiners (FBBE)

The FBBE 2015-16 proposed budget cites a "federal investigation" and a $100,000 increase in attorneys fees: "This is primarily due to the increase in attorney fees with regard to the federal investigation by $100K". (Page 14). "Bob Burgoyne of Norton Rose Fulbright has been retained to represent the board in the federal investigation." (Page 41)

Tuesday, July 4, 2017

Independence Day July 4, 2017

History of the Tuskegee Airman @8:14 and the 100th Fighter Squadron, 332d Fighter Group

Independence Day (United States)

Independence Day of the United States, also referred to as the Fourth of July or July Fourth in the U.S., is a federal holiday commemorating the adoption of the Declaration of Independence on July 4, 1776, by the Continental Congress declaring that the thirteen American colonies regarded themselves as a new nation, the United States of America, and no longer part of the British Empire.[1] Independence Day is commonly associated with fireworks, parades, barbecues, carnivals, fairs, picnics, concerts, baseball games, family reunions, and political speeches and ceremonies, in addition to various other public and private events celebrating the history, government, and traditions of the United States. Independence Day is the National Day of the United States.[2][3][4] Read more

United States Declaration of Independence

The Declaration of Independence is the statement adopted by the Second Continental Congress meeting at Philadelphia, Pennsylvania on July 4, 1776, which announced that the thirteen American colonies,[2] then at war with the Kingdom of Great Britain, regarded themselves as thirteen newly independent sovereign states, and no longer under British rule. Instead they formed a new nation—the United States of America. John Adams was a leader in pushing for independence, which was passed on July 2 with no opposing vote cast. A committee of five had already drafted the formal declaration, to be ready when Congress voted on independence. The term "Declaration of Independence" is not used in the document itself. Read more

In CONGRESS, July 4, 1776.

The unanimous Declaration of the thirteen United States of America,

When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security. Read more

Hamilton, Washington, Jefferson
Creation myth, white Supremacy
SOA Watch, by Elizabeth Martinez

Every nation has a creation myth, or origin myth, which is the story people are taught of how the nation came into being. Ours says the United States began with Columbus's so-called "discovery" of America, continued with settlement by brave Pilgrims, won its independence from England with the American Revolution, and then expanded westward until it became the enormous, rich country you see today.

That is the origin myth. It omits three key facts about the birth and growth of the United States as a nation. Those facts demonstrate that White Supremacy is fundamental to the existence of this country.

A. The United States is a nation state created by military conquest in several stages. The first stage was the European seizure of the lands inhabited by indigenous peoples, which they called Turtle Island. Before the European invasion, there were between nine and eighteen million indigenous people in North America. By the end of the Indian Wars, there were about 250,000 in what is now called the United States, and about 123,000 in what is now Canada (source of these population figures from the book _The State of Native America_ ed. by M. Annette Jaimes, South End Press, 1992). That process must be called genocide, and it created the land base of this country. The elimination of indigenous peoples and seizure of their land was the first condition for its existence.

B. The United States could not have developed economically as a nation without enslaved African labor. When agriculture and industry began to grow in the colonial period, a tremendous labor shortage existed. Not enough white workers came from Europe and the European invaders could not put indigenous peoples to work in sufficient numbers. It was enslaved Africans who provided the labor force that made the growth of the United States possible.

That growth peaked from about 1800 to 1860, the period called the Market Revolution. During this period, the United States changed from being an agricultural/commercial economy to an industrial corporate economy. The development of banks, expansion of the credit system, protective tariffs, and new transportation systems all helped make this possible. But the key to the Market Revolution was the export of cotton, and this was made possible by slave labor.

C. The third major piece in the true story of the formation of the United States as a nation was the take-over of half of Mexico by war -- today's Southwest. This enabled the U.S. to expand to the Pacific, and thus open up huge trade with Asia -- markets for export, goods to import and sell in the U.S. It also opened to the U.S. vast mineral wealth in Arizona, agricultural wealth in California, and vast new sources of cheap labor to build railroads and develop the economy.

The United States had already taken over the part of Mexico we call Texas in 1836, then made it a state in 1845. The following year, it invaded Mexico and seized its territory under the 1848 Treaty of Guadalupe Hidalgo. A few years later, in 1853, the U.S. acquired a final chunk of Arizona from Mexico by threatening to renew the war. This completed the territorial boundaries of what is now the United States.

Those were the three foundation stones of the United States as a nation. One more key step was taken in 1898, with the takeover of the Philippines, Puerto Rico, Guam and Cuba by means of the Spanish-American War. Since then, all but Cuba have remained U.S. colonies or neo-colonies, providing new sources of wealth and military power for the United States. The 1898 take-over completed the phase of direct conquest and colonization, which had begun with the murderous theft of Native American lands five centuries before.

Many people in the United States hate to recognize these truths. They prefer the established origin myth. They could be called the Premise Keepers. Read more

Sunday, June 18, 2017

Trump administration quietly rolls back civil rights efforts across federal government

Civil rights mural
Trump administration quietly rolls back civil rights efforts across federal government
American Bar Association (ABA)
By Jessica Huseman and Annie Waldman, ProPublica
Jun 16, 2017 08:00 am CDT

For decades, the Department of Justice has used court-enforced agreements to protect civil rights, successfully desegregating school systems, reforming police departments, ensuring access for the disabled and defending the religious.

Now, under Attorney General Jeff Sessions, the DOJ appears to be turning away from this storied tool, called consent decrees. Top officials in the DOJ civil rights division have issued verbal instructions through the ranks to seek settlements without consent decrees — which would result in no continuing court oversight.

The move is just one part of a move by the Trump administration to limit federal civil rights enforcement. Other departments have scaled back the power of their internal divisions that monitor such abuses. In a previously unreported development, the Education Department last week reversed an Obama-era reform that broadened the agency’s approach to protecting rights of students. The Labor Department and the Environmental Protection Agency have also announced sweeping cuts to their enforcement.

"At best, this administration believes that civil rights enforcement is superfluous and can be easily cut. At worst, it really is part of a systematic agenda to roll back civil rights," said Vanita Gupta, the former acting head of the DOJ’s civil rights division under President Barack Obama.

Consent decrees have not been abandoned entirely by the DOJ, a person with knowledge of the instructions said. Instead, there is a presumption against their use — attorneys should default to using settlements without court oversight unless there is an unavoidable reason for a consent decree. The instructions came from the civil rights division’s office of acting Assistant Attorney General Tom Wheeler and Deputy Assistant Attorney General John Gore. There is no written policy guidance.

Devin O’Malley, a spokesperson for the DOJ, declined to comment for this story.

Consent decrees can be a powerful tool, and spell out specific steps that must be taken to remedy the harm. These are agreed to by both parties and signed off on by a judge, whom the parties can appear before again if the terms are not being met. Though critics say the DOJ sometimes does not enforce consent decrees well enough, they are more powerful than settlements that aren’t overseen by a judge and have no built-in enforcement mechanism.

p>Such settlements have "far fewer teeth to ensure adequate enforcement," Gupta said.

Consent decrees often require agencies or municipalities to take expensive steps toward reform. Local leaders and agency heads then can point to the binding court authority when requesting budget increases to ensure reforms. Without consent decrees, many localities or government departments would simply never make such comprehensive changes, said William Yeomans, who spent 26 years at the DOJ, mostly in the civil rights division.

"They are key to civil rights enforcement," he said. "That’s why Sessions and his ilk don’t like them."

Some, however, believe the Obama administration relied on consent decrees too often and sometimes took advantage of vulnerable cities unable to effectively defend themselves against a well-resourced DOJ.

"I think a recalibration would be welcome," said Richard Epstein, a professor at New York University School of Law and a fellow at the Hoover Institution at Stanford, adding that consent decrees should be used in cases where clear, systemic issues of discrimination exist.

Though it’s too early to see how widespread the effect of the changes will be, the Justice Department appears to be adhering to the directive already.

On May 30, the DOJ announced Bernards Township in New Jersey had agreed to pay $3.25 million to settle an accusation it denied zoning approval for a local Islamic group to build a mosque. Staff attorneys at the U.S. attorney’s office in New Jersey initially sought to resolve the case with a consent decree, according to a spokesperson for Bernards Township. But because of the DOJ’s new stance, the terms were changed after the township protested, according to a person familiar with the matter. A spokesperson for the New Jersey U.S. attorney’s office declined comment.

Sessions has long been a public critic of consent decrees. As a senator, he wrote they "constitute an end run around the democratic process." He lambasted local agencies that seek them out as a way to inflate their budgets, a "particularly offensive" use of consent decrees that took decision-making power from legislatures.

On March 31, Sessions ordered a sweeping review of all consent decrees with troubled police departments nationwide to ensure they were in line with the Trump administration’s law-and-order goals. Days before, the DOJ had asked a judge to postpone a hearing on a consent decree with the Baltimore Police Department that had been arranged during the last days of the Obama administration. The judge denied that request, and the consent decree has moved forward.

The DOJ has already come under fire from critics for altering its approach to voting rights cases. After nearly six years of litigation over Texas’ voter ID law — which Obama DOJ attorneys said was written to intentionally discriminate against minority voters and had such a discriminatory effect — the Trump DOJ abruptly withdrew its intent claims in late February.

Attorneys who worked on the case for years were barely consulted about the change — many weren’t consulted at all, according to two former DOJ officials with knowledge of the matter. Gore wrote the filing changing the DOJ’s position largely by himself and asked the attorneys who’d been involved in the case for years to sign it to show continuity. Not all of the attorneys fell in line. Avner Shapiro — who has been a prosecutor in the civil rights division for more than 20 years — left his name off the filings written by Gore. Shapiro was particularly involved in developing the DOJ’s argument that Texas had intentionally discriminated against minorities in crafting its voter ID legislation.

"That’s the ultimate act of rebellion," Yeomans, the former civil rights division prosecutor, said. A rare act, removing one’s name from a legal filing is one of the few ways career attorneys can express public disagreement with an administration.

Gore has no history of bringing civil rights cases. A former partner at the law firm Jones Day, he has instead defended states against claims of racial gerrymandering and represented North Carolina when the state was sued over its controversial "bathroom bill," which requires transgender people to use the facility that matched their birth gender.

All of the internal changes at the DOJ have left attorneys and staff with "a great deal of fear and uncertainty," said Yeomans. While he says the lawyers there would like to stay at the department, they fear Sessions’ priorities will have devastating impact on their work.

The DOJ’s civil rights office is not alone in fearing rollbacks in enforcement. Across federal departments, the Trump administration has made moves to diminish the power of civil rights divisions.

The Department of Education has laid out plans to loosen requirements on investigations into civil rights complaints, according to an internal memo sent to staff on June 8 and obtained by ProPublica.

Under the Obama administration, the department’s office for civil rights applied an expansive approach to investigations. Individual complaints related to complex issues such as school discipline, sexual violence and harassment, equal access to educational resources, or racism at a single school might have prompted broader probes to determine whether the allegations were part of a pattern of discrimination or harassment.

The new memo, sent by Candice Jackson, the acting assistant secretary for civil rights, to regional directors at the department’s civil rights office, trims this approach. Jackson was appointed deputy assistant secretary for the office in April and will remain as the acting head of the office until the Senate confirms a full-time assistant secretary. Trump has not publicly nominated anyone for the role yet.

The office will apply the broader approach "only" if the original allegations raise systemic concerns or the investigative team argues for it, Jackson wrote in the memo.

As part of the new approach, the Education Department will no longer require civil rights investigators to obtain three years of complaint data from a specific school or district to assess compliance with civil rights law.

Critics contend the Obama administration’s probes were onerous. The office "did such a thorough review of everything that the investigations were demanding and very expensive" for schools, said Boston College American politics professor R. Shep Melnick, adding that the new approach could take some regulatory pressure off schools and districts.

But some civil rights leaders believe the change could undermine the office’s mission. This narrowing of the department’s investigations "is stunning to me and dangerous," said Catherine Lhamon, who led the Education Department’s civil rights office from August 2013 until January 2017 and currently chairs the United States Commission on Civil Rights. "It’s important to take an expansive view of the potential for harm because if you look only at the most recent year, you won’t necessarily see the pattern," said Lhamon.

The department’s new directive also gives more autonomy to regional offices, no longer requiring oversight or review of some cases by department headquarters, according to the memo.

The Education Department did not respond to ProPublica’s request for comment.

Education Secretary Betsy DeVos has also proposed cutting over 40 positions from the civil rights office. With reduced staff, the office will have to "make difficult choices, including cutting back on initiating proactive investigations," according to the department’s proposed budget.

Elsewhere, Trump administration appointees have launched similar initiatives. In its 2018 fiscal plan, the Labor Department has proposed dissolving the office that handles discrimination complaints. Similarly, new leadership at the Environmental Protection Agency has proposed entirely eliminating the environmental justice program, which addresses concerns that almost exclusively impact minority communities. The Washington Post reports the plan transfers all environmental justice work to the Office of Policy, which provides policy and regulatory guidance across the agency.

Mustafa Ali, a former EPA senior adviser and assistant associate administrator for environmental justice who served more than 20 years, quit the agency in protest days before the plan was announced. In his resignation letter, widely circulated in the media, Ali suggested the new leadership was abandoning "those who need our help most." Read more

Ryan Gabrielson contributed to this report.

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Will Rosenstein recuse himself from overseeing special counsel probe? Not at this point, DOJ says

Rod Rosenstein
Will Rosenstein recuse himself from overseeing special counsel probe? Not at this point, DOJ says
American Bar Association (ABA)
By Debra Cassens Weiss
Posted Jun 16, 2017 02:47 pm CDT

The U.S. Justice Department says Deputy Attorney General Rod Rosenstein has no immediate plans to recuse himself from overseeing the special counsel’s investigation into Russian influence, though he reportedly told colleagues he may need to take that step.

Anonymous sources tell ABC News and the Washington Post that Rosenstein has acknowledged in private conversations that he may have to step away from supervising the investigation by special counsel Robert Mueller. ABC was the first to report the news.

But Justice Department spokesman Ian Prior issued a statement on Friday saying Rosenstein remains in a supervisory role, at this point. "As the deputy attorney general has said numerous times, if there comes a point when he needs to recuse, he will," Prior said. "However, nothing has changed."

Rosenstein could be a witness in the investigation he is overseeing if Mueller has expanded his probe of Russian influence to investigate whether Trump obstructed justice by firing FBI director James Comey. Mueller may want to learn about Trump’s conversations with Rosenstein, the Justice Department official who wrote the memo criticizing Comey’s performance before his firing on May 9.

Trump appeared to confirm he was being investigated for obstruction in a tweet on Friday that read: "I am being investigated for firing the FBI Director by the man who told me to fire the FBI Director! Witch Hunt."

Harvard law professor Noah Feldman argues in a Bloomberg View article that Trump’s tweet could force Rosenstein’s recusal because of his suggestion that Comey’s firing was Rosenstein’s idea. That would leave supervision of the Mueller probe to Associate Attorney General Rachel Brand, a a Harvard law graduate who clerked for Justice Anthony M. Kennedy and ran the Office of Legal Policy at the Justice Department.

Brand is "a horse of a different color from career prosecutors such as Rosenstein, Comey and Mueller," Feldman says. He speculates that her attitude may be "more informed by the structure of presidential authority and less by unwritten norms of prosecutorial independence."

According to the ABC report, Rosenstein discussed his potential recusal with Brand and told her she would have to take over his role if he did so. Read more

Officer is acquitted in shooting death of black driver whose girlfriend livestreamed the aftermath

Philando Castile
Officer is acquitted in shooting death of black driver whose girlfriend livestreamed the aftermath
American Bar Association (ABA)
By Debra Cassens Weiss
Posted Jun 16, 2017 03:29 pm CDT

Updated: A Minnesota police officer has been acquitted in the shooting death last summer of a cafeteria supervisor, an incident that received widespread attention because victim Philando Castile’s girlfriend livestreamed the aftermath on Facebook. Shortly after the verdict was announced, the town of St. Anthony said Jeronimo Yanez is no longer employed there.

Yanez was acquitted on charges of second-degree manslaughter and endangering safety by discharging a firearm, report the StarTribune, the New York Times and the Washington Post. Jurors had deliberated for 27 hours over five days.

St. Anthony, located northwest of St. Paul, said in a statement on its website that "the public will best be served" if Yanez is no longer employed by the police department there.

Yanez had testified he shot Castile after he pulled him over because he saw him reach for a gun, according to StarTribune coverage. "I thought I was going to die," said Yanez, who had pulled Castile over on July 6 because of a broken brake light.

The 32-year-old Castile was black and Yanez, 29, is Mexican-American.

Castile’s girlfriend, Diamond Reynolds, said on the video that Castile had warned the officer that he was carrying a pistol and he was licensed to carry it. According to Reynolds, the officer shot Castile as he was trying to produce his driver’s license. On the video, the officer says, "I told him not to reach for it. I told him to get his hand out."

A lawyer for Yanez, Earl Gray, had argued that his client believed Castile matched the description of a robbery suspect and he perceived an imminent threat when he fired his gun. Defense lawyers also said Yanez smelled marijuana in the car.

Castile’s mother, Valerie Castile, addressed reporters after the verdict. "There has always been a systemic problem in the state of Minnesota, and me thinking, common sense that we would get justice," she said. "But nevertheless the system continues to fail black people." Read online

Updated at 4:40 p.m. with Yanez’s employment status and additional details; updated at 4:51 p.m. to rework lead and move up information on Yanez’s employment status

Pence hires BigLaw lawyer in Russia probe with personal Comey connection

Pence hires BigLaw lawyer in Russia probe with personal Comey connection
American Bar Association (ABA)
By Debra Cassens Weiss
Posted Jun 16, 2017 08:37 am CDT

Vice President Mike Pence has hired McGuireWoods chairman Richard Cullen to represent him in the congressional and special counsel’s investigations into Russian influence.

Cullen has connections to fired FBI director James Comey, a lawyer who once worked at McGuireWoods, report the New York Times, the Am Law Daily (sub. req.) and the Washington Post in stories here and here.

The relationship is personal: Cullen is godfather to one of Comey’s daughters, according to the Post. And they both worked at one time in the U.S. Attorney’s Office in Richmond, Virginia, though not at the same time. Cullen was U.S. attorney for the office from 1991 to 1993, before Comey joined the office in 1996.

Cullen also has prosecution experience on the state level, serving as Virginia attorney general from 1997 to 1998.

Cullen began his career as a staffer for a Republican member of the House Judiciary Committee who voted to impeach Richard Nixon in the Watergate scandal. Later, he was special counsel to a Republican senator investigating the Iran-Contra arms-for-hostages sales.

The Times says Pence is probably a peripheral figure in the Russia investigation who could be questioned as a witness. Read more

Saturday, June 17, 2017

Gun control debate revived in wake of congressman being shot

Gun control debate revived in wake of congressman being shot
American Bar Association (ABA)
By Terry Carter
Posted Jun 15, 2017 01:48 pm CDT

In the wake of Wednesday morning’s shooting of Louisiana Republican Congressman Steve Scalise, fellow GOP members argue that if victims had carried firearms then they could have defended themselves.

Gun control initiatives at the federal level have been so stymied by special interests in recent years that Democrats in Congress remained largely mute, the New York Times reports.

"Had there not been a member of House leadership present, there would have been no police present, and it would have become the largest act of political terrorism in years, if not ever," said Rep. Tom Garrett, R-Va., who has introduced legislation that would permit citizens to carry firearms in Washington, D.C., noting that it "would allow the most law-abiding among us to defend themselves."

That response, and others like it, indicate how the gun debate has changed. Republican Congressional members have become more conservative and from outside urban areas, and few of them dare support gun-control measures.

Republicans in right-wing districts have greater fear of primary challengers who are ultra-conservative more than they do of Democrats in general elections, and the power of special interest groups is strong, says Rep. Steve Cohen, D-Tenn.

"They have an N.R.A. rating they want to keep," Cohen said.

The Times notes a "striking departure from recent political history," as gun-control battles have become more partisan than regional-based. Republican majorities in Congress have turned back significant gun-control efforts, including recent attempts to bar gun sales to people on the federal terrorism watch list and to close background-check loopholes.

Rep. Mo Brooks, R-Ala., reiterated his strong views against gun control after helping apply a tourniquet to Scalise, who was wounded on a baseball field as Republicans practiced for their annual game against Democrats.

"As with any constitutional provision in the Bill of Rights, there are adverse aspects to each of those rights that we enjoy as people," says Brooks. "And what we just saw here is one of the bad side effects of someone not exercising those rights properly." Read more

Trump appears to confirm he is being investigated for firing Comey in new 'witch hunt' tweet

President Trump
Trump appears to confirm he is being investigated for firing Comey in new 'witch hunt' tweet
American Bar Association (ABA)
By Debra Cassens Weiss
Posted Jun 16, 2017 09:04 am CDT

Updated: President Donald Trump apparently confirmed he is under investigation for firing FBI director James Comey in an early morning tweet.

The tweet read: "I am being investigated for firing the FBI Director by the man who told me to fire the FBI Director! Witch Hunt."

Trump was likely referring to Deputy Attorney General Rod Rosenstein, according to several media reports, including stories by the New York Times, the Hill and Politico.

Some commentators, however, said Trump could be referring to special counsel Robert Mueller. Rosenstein appointed Mueller following the recusal of Attorney General Jeff Sessions in the FBI’s probe of Russian influence.

Trump’s tweet could force Rosenstein’s recusal in the Mueller investigation, according to a Bloomberg View article by Harvard law professor Noah Feldman.

If Mueller is investigating Trump’s firing of Comey as possible obstruction of justice, he might want to learn about Trump’s interactions with Rosenstein, the Justice Department official who wrote the memo criticizing Comey’s performance before his firing.

That would mean Rosenstein is a potential witness in the investigation he is overseeing, a point made by Politico in a May 31 article.

Trump’s tweet deepens the potential conflict by asserting that Comey’s firing was Rosenstein’s idea, Feldman says.

If Rosenstein recuses himself, supervision of the Mueller probe would be left to Associate Attorney General Rachel Brand, a Harvard law graduate who clerked for Justice Anthony M. Kennedy and ran the Office of Legal Policy at the Justice Department.

"She’s a horse of a different color from career prosecutors such as Rosenstein, Comey and Mueller," Feldman writes. "Her attitude toward the investigation is likely to be a bit different from Rosenstein’s, more informed by the structure of presidential authority and less by unwritten norms of prosecutorial independence."

The Times points out that Trump’s tweet came hours after an "oddly worded" statement by Rosenstein about leaks.

Rosenstein’s statement read: "Americans should exercise caution before accepting as true any stories attributed to anonymous ‘officials,’ particularly when they do not identify the country—let alone the branch or agency of government—with which the alleged sources supposedly are affiliated."

The Washington Post reported on Wednesday that Mueller is investigating possible obstruction of justice by Trump. According to the Post, both Comey and Daniel Coats, director of national Intelligence, have said Trump sought their help in hopes the FBI would drop the investigation of former national security adviser Michael Flynn.

The Post’s information on Coats is based on anonymous sources who claimed Trump asked Coats whether he could ask Comey to back off the FBI’s focus on Flynn. Coats reportedly said he didn’t feel pressured however.

Comey’s claim was aired in public congressional testimony on June 8. He testified that, about three months before his firing, Trump pressed him to drop the investigation of Flynn by saying he hoped Comey could let it go. Read more
I am being investigated for firing the FBI Director by the man who told me to fire the FBI Director! Witch Hunt
    — Donald J. Trump (@realDonaldTrump)
June 16, 2017
Updated at 12:25 p.m. to include information from Bloomberg View article and at 12:40 to correct typos.

Nursing home regulation banning arbitration as a condition of admission may be removed

Nursing home regulation banning arbitration as a condition of admission may be removed
American Bar Association (ABA)
By Stephanie Francis Ward
Posted Jun 16, 2017 10:10 am CDT

A proposed Centers for Medicare & Medicaid Services rule calls for removing regulation that prevents nursing homes from including binding arbitration agreements as a condition of admission.

The existing rule was overhauled by the Obama administration, but has yet to be implemented due to litigation, Modern Healthcare reports. A Mississippi U.S. district court judge in November granted a motion from the American Health Care Association, a nursing home trade group, to block the rule from being implemented on the basis that the CMS did not have authority to enact the mandate without statutory authority.

The proposed rule, released June 5, requires that nursing homes explain the arbitration contracts to residents or their representatives, and the contracts can’t prohibit or encourage parties from communicating with state or federal agencies, according to the article. Also, the proposed rule requires that arbitration contract language not be bogged down in legal jargon.

The AHCA lobbied hard for the proposed rule, resident advocates tell the Los Angeles Times.

"The Trump administration apparently thinks it is [OK] for nursing homes to force seniors into signing contract terms that give up their right to sue in court if they are subsequently victimized by neglect or abuse," Rob Weissman, president of Public Citizen, told the newspaper. "It’s hard to imagine a more callous policy."

The AHCA maintains that arbitration is easier for all parties.

"Arbitration produces swifter resolution to disputes, compensates residents without undue litigation expense for either party, and reduces the funding burden on the Medicare and Medicaid programs," Mark Parkinson, president and CEO of the organization, said in a statement.
Read more

Oregon judge admits to mistakes, but not marrying same-sex couples isn't one of them

Oregon judge admits to mistakes, but not marrying same-sex couples isn't one of them
American Bar Association (ABA)
By Stephanie Francis Ward
Posted Jun 16, 2017 02:56 pm CDT

An Oregon judge, who reportedly displayed a portrait of Adolf Hitler at his courthouse and twice provided a felon with a gun, directed his staff to lie about his availability to same-sex couples looking to marry, according to the state’s Commission on Judicial Fitness and Disability.

Vance Day, a state circuit court judge, admits he’s made some mistakes, his attorney Janet Schroer told the Oregon Supreme Court on Wednesday–but refusing to marry same-sex couples is not one of them, because her client opposes such unions based on his "sincerely held" religious beliefs, Oregon Live reports.

In addition, the commission found that Day used his judicial business card to try and intimidate a referee at his son’s college soccer game. Day also was charged with two felony counts of a felon in possession of a firearm for allegedly aiding and abetting the crime, and two misdemeanor counts of official misconduct.

The Oregon Supreme Court has not indicated when it will rule on Day, according to the article. Punishment could range from public reprimand to removal from the bench.

"The commission’s findings have him doing so many bad things that trying not to marry same-sex couples should be the least of it," Douglas Laycock, a University of Virginia School of Law professor, told the ABA Journal.

Federal protections on the issue are limited, Laycock added, and unlikely to apply to Day’s situation. Also, Laycock wrote in an email, Oregon does not have state-law protection for the exercise of religion.

Various officers of the courts have publicly opposed same-sex marriage.

Roy Moore, the former chief judge of the Alabama Supreme Court, was suspended by a special supreme court of retired judges in April, after he issued an order that probate judges there had a "ministerial duty to not give gay couples marriage licenses." Earlier, the Alabama Court of the Judiciary found that Moore’s directive was contrary to both federal orders and Obergefell v. Hodges, the 2015 landmark U.S. Supreme Court case that found same-sex couples have a constitutional right to marry.

And in Wyoming, the state supreme court in March publicly censured a state court magistrate, who had said religious beliefs would prevent her from presiding over a same-sex marriage The court did not adopt a Wyoming Commission on Judicial Conduct and Ethics recommendation that Ruth Neely, who is not a lawyer, be removed from her job.

Some judges marry anyone who asks, and may get paid for doing so, according to Laycock, and others perform the ceremonies on a limited basis–usually for someone they know. In Laycock’s view, both should be viewed as a religious context if that’s part of the judge’s beliefs.

"But that is not how the judicial ethics opinions and the few court decisions have been going," wrote Laycock, who has argued many landmark religious cases in the U.S. Supreme Court. "I don’t think that anyone in authority has been willing to protect judges so far, except in Delaware where, by statute, no one with authority to perform weddings has to do any wedding that he doesn’t want to do."

In Day’s situation, he reportedly told staff to investigate couples who asked that he marry them. If the staff thought the couple was gay, they were told to tell the couple that Day had a full schedule. Schroer told the Oregon Supreme Court that this plan was never carried out, because only one same-sex couple asked Day to perform their marriage ceremony and he was actually too busy to do it on the specific day requested.

Day’s attorney also told the court that this was no longer an issue, because Day–who hasn’t heard cases since November– has decided to stop performing wedding ceremonies if he returns to the bench. His criminal trial is expected to take place in November, Oregon Live reports.

A defense fund has been created on Day’s behalf. According to its website, his policy of not performing same-sex marriages does not alter gay couples’ rights to marry in Marion County, where he is a judge.

In regards to providing a felon with gun, the website states that Day was acting as a "good samaritan and helping a disabled veteran." According to the Judicial Fitness and Disability Commission finding, Day allowed a man in his veteran treatment court program, who pleaded guilty to driving under the influence, handle a gun at Day’s family events, and the man went target shooting with Day’s son.

"The charges are false and independent witnesses have stated that Judge Day did no such thing," states the defense fund website, which claims that his legal fees as of April were more than $650,000. Read more

Friday, June 16, 2017

Emoluments clause lawsuits against Donald Trump face uphill battle

ABA Journal online
Emoluments clause lawsuits against Donald Trump face uphill battle
American Bar Association (ABA)
By Victor Li
Posted Jun 15, 2017 07:45 am CDT

One of the most obscure and least-litigated clauses in the U.S. Constitution is about to get a lot of scrutiny from the federal judiciary. And the repercussions for President Donald Trump could be huge—provided the lawsuits can get past some significant procedural hurdles.

Since January, three lawsuits have been filed against Trump alleging that the president, through his various business dealings, is in violation of the emoluments clause, which prohibits officeholders from accepting gifts, titles or compensation from foreign governments without the consent of Congress. The suits allege that Trump profits when foreign governments pay for hotel rooms at Trump properties and conduct business with the Trump organization.

Trump had originally promised to put his business assets in a blind trust for the duration of his presidency, however, according to the New York Times, he has resisted doing so.

The first emoluments clause lawsuit was filed in January in the Southern District of New York by Citizens for Responsibility and Ethics (CREW) and several prominent legal scholars, including University of California at Irvine law Dean Erwin Chemerinsky, former Obama administration ethics lawyer Norman Eisen, Supreme Court litigator Deepak Gupta and Harvard law professor Laurence Tribe. In April, Restaurant Opportunities Centers United and Jill Phaneuf, an event booker for two Washington, D.C. hotels, joined the lawsuit.

This week, two more lawsuits were filed. On Monday, the attorneys general of Maryland and Washington, D.C. (along with CREW) filed a complaint with the U.S. District Court for the District of Maryland claiming Trump had not fully separated himself from his businesses. According to the Washington Post, the attorneys general said they would seek copies of Trump’s long-sought-after tax returns and other financial records.

On Wednesday, nearly 200 congressional Democrats announced they would file suit in the U.S. District Court for the District of Columbia arguing that Trump is required to obtain congressional approval before accepting any gifts or compensation. "Because [the President] has not sought congressional consent before accepting these foreign emoluments, nor provided information about them to Congress, [Congress is] unable to exercise their constitutional prerogative to authorize or reject the specific emoluments he is accepting," the complaint said.

According to constitutional experts, the main hurdle for all three of these suits is whether the plaintiffs have standing to sue. University of Iowa law professor Andy Grewal tells the ABA Journal that "all three cases have serious standing problems" and that "the New York case seems stronger, but only because the other two seem so weak."

He argues that the congressional lawsuit runs counter to established Supreme Court precedent that individual representatives or senators cannot challenge the president in court unless they suffer individual injuries. (The plaintiffs are filing as individuals and not on behalf of House of Representatives or Senate.) As for the Maryland case, he argues that state standing can be hard to establish, but notes that some courts (particularly the ones that have adjudicated the travel ban) have taken a broad view. The New York lawsuit, however, has a shot, according to Grewal, because it’s easier for private organizations to prove standing and because they recently added parties that can claim injuries.

Eisen, a former ambassador to the Czech Republic and co-founder of CREW who serves as co-counsel in the New York and Maryland lawsuits, disagrees. He tells the ABA Journal that all three cases should meet the standing requirement.

"Both the states and the members of Congress are harmed and both have standing, as do the hotel, restaurant and other plaintiffs in the SDNY case," says Eisen. "With respect to congressional standing in the case filed today, it flows from the fact that, in an action unprecedented in American history, President Trump has refused to seek permission from that body for his many foreign emoluments. Neither has he been willing even to identify their extent or to provide information such as his tax returns that would allow such identification."

It could be that Trump’s elusive tax returns are the main target of these various suits.

"There’s a good chance that the endgame here is to get more information about his financials," says Andrew Hessick, a professor at the University of North Carolina School of Law. "Otherwise, I don’t know what the courts could do. I can’t see them forcing Trump to disgorge his profits."

Hessick agrees with Grewal that all three cases are facing huge obstacles in establishing standing, but points out that anything can happen when the law ventures into previously uncharted waters.

"That’s the thing about lawsuits—lawyers and judges can be really creative," says Hessick. "You never know what they might come up with." Read online

Nearly 200 Democrats in Congress plan to sue Trump over conflicts, claim standing under Constitution

President Donald Trump
Nearly 200 Democrats in Congress plan to sue Trump over conflicts, claim standing under Constitution
American Bar Association (ABA)
By Debra Cassens Weiss
Posted Jun 14, 2017 08:51 am CDT

Congressional Democrats claim in a suit to be filed on Wednesday that the emoluments clause gives them standing to challenge benefits received from foreign leaders by President Donald Trump's business organization.

The suit will be filed by 196 Democrats, the Washington Post reports. The lead Senate plaintiff, Sen. Richard Blumenthal, D-Conn., said the number of congressional plaintiffs is higher than in any other suit filed against a president.

The emoluments clause states that, absent congressional consent, no one holding any office of profit or trust shall "accept of any present, emolument, office or title, of any kind whatever, from any king, prince or foreign state."

Democrats argue they have standing because congressional consent is required before the president can accept gifts and benefits from foreign leaders.

Two other lawsuits have also claimed Trump is violating the emoluments clause because foreign governments pay for hotel rooms at Trump properties and conduct business with the Trump organization.

One suit was filed by the attorneys general for Maryland and Washington, D.C., and the other was initially filed by Citizens for Responsibility and Ethics. Two additional plaintiffs have joined the CREW suit—an advocacy group for restaurant workers and a woman who books events at hotels in Washington, D.C.

The Justice Department has argued the plaintiffs in the CREW suit lack standing because they can’t allege a specific harm caused by hotel revenue from foreign governments. The department has also argued that fair-market payments to a business aren’t a benefit that violates the emoluments clause.

The state attorneys general argue that Trump’s D.C. hotel is taking business away from a convention center in the district that is owned by taxpayers, and from a taxpayer-subsidized convention center in Maryland.

Experts interviewed by the Post differed on whether the Democratic lawmakers have standing to sue. "Because this is individual legislators who don’t have any individual injuries, it will be hard for them to get standing," said University of Iowa law professor Andy Grewal. Read online