Dec. 18, 2019

Special Guest Perspective by Dan ODonnell

The pattern of behavior was as unmistakable as the misconduct was egregious; a sickening abuse of power at the highest levels of government so obvious and so deliberate that it should send chills down the spine of all Americans who care about their country.

Only it hasnt, because this isnt the abuse of the power that this country seems to care aboutthe unproven allegations of wrongdoing that have led to impeachmentit is the abuse of power by the investigators who for two years trampled both civil liberties and the Rule of Law in the name of protecting America from Donald Trump.

The real abuse of power, the abuse of power that should terrify everyone regardless of their opinions of Trump, came from an FBI so hell bent on influencing American politics that it has undone centuries of trust in American jurisprudence.

As Americans, we each enjoy Constitutional protections from governments awesome (and, when unchecked, fearsome) power to take our property, our freedom, and even our lives. The Fifth Amendment provides that we may not be deprived of life, liberty, or property without due process of law, while the Fourth Amendment protects us against unreasonable searches and seizures as well as warrants issued against us that are not built upon probable cause. The Sixth Amendment requires that we be informed of the nature and cause of the accusation against us, that we be confronted with the witnesses against us, and that we have compulsory process for obtaining witnesses in [our] favor.

The FBI systematically abused its investigative authority by knowingly and repeatedly violating Pages rights.

In its application for and subsequent renewals of a Foreign Intelligence Surveillance Act (FISA) warrant against Trump 2016 Campaign associate Carter Page during Operation Crossfire Hurricane, the FBI systematically abused its investigative authority by knowingly and repeatedly violating Pages rights as it looked into alleged Russian election interference on Trumps behalf.

As outlined by Department of Justice Inspector General Michael Horowitzs report, the Bureau committed 17 of what Horowitz euphemistically termed serious performance failures in its surveillance of Page, who was never charged with a crime.

These errors and omissions resulted from case agents providing wrong or incomplete information to OI [Justice Department National Security Divisions Office of Intelligence] and failing to flag important issues for discussion, the report concluded.

In laymans terms, the FBI failed to disclose to the FISA Court important exculpatory evidence that might have caused the court to reject its warrant application. Most significantly, FBI investigators learned almost immediately that Page had been for years working for the CIA as an operational contact in Russia. He wasnt, as the FBI asserted, a potential Russian spy; he was in effect spying on Russia for the CIA. Rather than disclose this obviously material fact to the FISA Court, the FBI used Pages contact with suspicious individuals in Moscow as evidence that he was part of a plot to conspire with them to somehow rig the upcoming election.

He was doing no such thing and the FBI knew it, yet the FBI falsely asserted that he was in order to surveil him. Kevin Clinesmith, the FBI attorney responsible for the Bureaus FISA applications, even deliberately altered the CIAs response to a question about Page to falsely indicate that he was not a CIA contact.

Horowitz has now referred Clinesmith for criminal prosecution.

Federal law treats such misconduct severely, as 18 U.S. Code 1001(a)(1) provides that anyone who falsifies, conceals, or covers up by any trick, scheme, or device a material factshall be fined under this title [and] imprisoned not more than 5 years.

Though Horowitz declined to ascribe a political motivation for Clinesmiths rather obviously politically motivated actions, investigators found anti-Trump sentiments littering his social media accounts, and he even posted Vive Le Resistance after the election; indicating that Clinesmith had been willing to do anything to stop Trump from winningeven using (and grossly abusing) the power of the FBI.

Just as disturbingly, the Bureau presented evidence from the infamous Christopher Steele dossier that it knew to be false.

We determined that the Crossfire Hurricane teams receipt of Steeles election reporting on September 19, 2016 played a central and essential role in the FBIs and Departments decision to seek the FISA order, Horowitz determined.

Before FBI presented information from the Steele dossier, it attempted to verify that information and, unsurprisingly, could not. Investigators contacted one of Steeles three main sources, who couldnt believe that Steele included what the source called word-of-mouth and hearsay during conversations with friends over beers that amounted to little more than just talk that Steele reported as gospel even though he had heard it third-hand.

Still, the FBI presented information from Steeles dossier to the FISA Court that it knew was mere opposition research from a political operative hired by Trumps opponent, Hillary Clinton, through the strategic intelligence firm Fusion GPS.

Justice Department official Bruce Ohr, whose wife Nellie worked for Fusion GPS, met 13 different times with the FBI during Operation Crossfire Hurricane to discuss the dossier, details from which were continually leaked to Fusion GPSs many allies in the media in an effort to gin up Trump-Russia hysteria during the latter part of the campaign and the post-election transition period.

A year after receiving Steeles initial allegations in September of 2016, the FBI could corroborate only limited information in the Steele election reporting, yet had repeatedly presented that information to the FISA Court in its warrant renewal applications.

Law enforcement agencies, the FBI in particular, are granted significant investigative powers with the implicit trust that this unrivaled authority will not be abused; that the citizenry will not be powerless against a rogue agency determined to prove wrongdoing even if it needs to manufacture evidence to do so.

That this rogue FBI did so by presenting knowingly false evidence to a FISA Court is especially terrifying, since at no point during these secret proceedings did Page have an opportunity to defend himself.

Where, as the old saying goes, does he go now to get his reputation back?

And where do we as Americans go to get our Rule of Law back? If such an egregious abuse of investigative power could happen to someone as politically well-connected as Carter Page, it could happen to any of us.

Take political partisanship out of the assessment of this behavior for a second. Replace the name Carter Page or Donald Trump with your own.

Take political partisanship out of the assessment of this behavior for a second. Replace the name Carter Page or Donald Trump with your own. Even the most dedicated Trump hater must admit that the depths to which the FBI sunk to sink his campaign is a threat to the very fabric of this Republic.

When secret court proceedings are taken advantage of, when false evidence is invented with abandon, when the awesome power of government investigation is abusedas it so clearly wasall of us run the risk of being the next victim.

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The Real Abuse of Power - MacIverInstitute

Another state has joined the battle to free people from the oppression of the Federal Reserve.

The New Americans Joe Wolverton II explains that a few weeks ago in SC:

State Representative Stewart O. Jones submitted legislation that would restore gold and silver to their status as legal tender in his state.

This means that South Carolina joins a handful of other states that either have passed or are close to passing, statutes to return gold and silver to the market for legal tenderand, one that opens a window to an understanding of US history, the Constitution, and the meaning of inflation.

Simply put, the paper Federal Reserve Notes states accept as payment for debts (i.e. taxation, not really a debt) or use to pay state debt are prohibited by the Constitution. Article One, Section Ten states this quite explicitly:

No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.

States cannot print or coin their own form of currency, but private citizens can, and those citizens can even pay debts to the state, as long as the coinage is either silver or gold, also known as specie.

Additionally, Article One, Section Eight, Clause Five states Congress has the power (t)o coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures

That means Congress can coin a form of money, not the only form of money, and regulate the value of the money it coins reinforcing the prohibition against printed paper money and against what is called fiat currency, or money that is forced on the public by statute as the only currency they can use.

But, despite these clear constitutional rules, various politicians throughout US history have, evidently, skirted the law of the Constitution and the laws of economics when it comes to monetary policy.

The first on a national level was Abe Lincoln.

As Philip W. Newcomer observes for the Foundation for Economic Education:

President Lincoln signed the first Legal Tender Act on February 25, 1862. This act authorized the printing of $150,000,000 in United States notes, that amount being increased by later legislation to $450,000,000. These notes were declared to be lawful money and legal tender in payment of all debts, public and private, within the United States, except duties on imports and interest on the public debt.[2] Because they were printed in green ink, the United States notes quickly became known as greenbacks.

And, of course, anyone with the capacity to read could see that Lincolns move was wildly unconstitutional. In fact, since the Constitution forbade states from accepting any payment for debts except in coin, many state governments would not accept the paper greenbacks. This, Newcomer explains, led to a titanic Supreme Court ruling in 1868:

In Lane County v. Oregon, 74 U.S. 71 (1868), the Supreme Court placed a restriction upon the application of the Legal Tender Acts, holding that states may require payment of taxes to be made in specie rather than in United States notes.

Less than a year later, the Supreme Court ruled on the Lincoln Administrations Greenback move itself

In 1869, Hepburn v. Griswold came before the Supreme Court. On February 7, 1870, the Court, by a four to three vote, upheld the earlier decision of the Court of Errors of Kentucky.[7] In so holding, the Court clearly rejected the constitutionality of the Congressional legal tender legislation. Ironically, the majority opinion was written by Chief Justice Salmon P. Chase, who, as Lincolns Secretary of the Treasury, originally endorsed the first Legal Tender Act.

Indeed, Newcomer observes that Chief Justice Chase found no expressed Congressional legal tender power within the text of the Constitution, and he went further, acknowledging the inflationary tendencies of fiat currency and noting that any government mandate to use such currency any mandate forbidding a free market in money choices actually broke numerous provisions of the Bill of Rights.

By requiring the repayment of debts in a depreciated medium of exchange, the Legal Tender Acts impaired the obligation of contracts. Creditors, therefore, were denied property by Congress without due process of law. Chase declared the legislation to be nothing less than a violation of the due process clause of the Fifth Amendment.

Unfortunately for the Constitution and for our wallets, the very day that the Hepburn v Griswold decision was released, President Grant announced the names of two nominees to fill vacancies on the Supreme Court, and a year later, with Knox v. Lee (1871) the first of two new legal tender cases, the majority reversed the earlier decision.

Which leaves us where we are today. Since Lincolns time, the feds have claimed the sole power to issue the money of the US and prohibited any that private people might issue themselves. Since this eliminates choice and competition in a real market,and allows the government to inflate the amount of currency (reducing the buying power of every unit), various political factions have fought over whether the money will be paper, paper supposedly tied to a metal, or paper issued by a bank given the monopoly to issue it (i.e. the Federal Reserve).

But the arguing is beside the central point.

Whether the US government issues the currency itself, a-la Lincolns Greenback, or the government creates a monopoly as it did with the federal Reserve Act of 1913, there is no enumerated power in the Constitution giving the politicians the power to monopolize the money we, supposedly free people, can use. The Constitution also prohibits states from accepting any payments except in coined currency.

So the potential that SC could join the ranks of states allowing gold or silver legal tender is not just a thumb in the eye of the feds, pushing against federal economic tyranny going back to the 1800s, its an acknowledgment of what the Constitution itself.

Its great to see some folks on the state level truly get it, not only about economics and inflation, but about the supposed rule book under which the US is supposed to operate.

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SC Joins Growing List of States Contemplating The Restoration Of Gold And Silver As Legal Tender - MRCTV

(image via Getty)

Imagine having your home invaded by an armed criminal, escaping with your nine-year-old child, having the police show up to apprehend the criminal, watching for 19 hours as the police systematically destroy your home, and having the state deny you just compensation for your troubles afterwards.

If doesnt sound like something covered under the Fifth Amendments Takings clause, then the Fifth Amendment needs to be amended.

Maybe one day it will be, but for right now Colorado man Leo Lech is out of luck. The Tenth Circuit ruled that the police action which destroyed his home is not a Taking, and thus hes not entitled to any remedy from the city or state. The Washington Post has the story:

The suspect, Robert Jonathan Seacat, had stolen a shirt and a couple of belts from a Walmart in neighboring Aurora, Colo., and then fled in a Lexus, according to a police affidavit. A police officer pursued him in a high-speed chase until Seacat parked his car near a light rail station, hopped a nearby fence leading to the interstate, and then crossed five lanes of traffic on foot. He climbed the fence on the other side and then, shortly thereafter, came upon the Lech residence.

A 9-year-old boy, John Lechs girlfriends son, was home alone at the time, waiting for his mom to return from the grocery store, Lech said. He told police he was watching YouTube videos in his room when he heard the alarm trip, according to the affidavit. He emerged to find a man walking up the stairs, holding a gun. He said, I dont want to hurt anybody. I just want to get away, Lech said. Minutes later, the boy walked out of the house unharmed

Thus began the 19-hour standoff.

They proceed to destroy the house room by room, by room, by room, Lech said. This is one guy with a handgun. This guy was sleeping. This guy was eating. This guy was just hanging out in this house. I mean, they proceeded to blow up the entire house.

Ive watched action movies, I know how this goes. The cops have the criminal surrounded but the bad guy is well defended. Mel Gibson saunters in with a rocket launcher. The property owner, Shooter McGavin, shouts CAREFUL! My Ming Dynasty vase is worth more than your entire family! Mel Gibson fights his way through the house, destroying everything but the vase, finally cornering and arresting chief henchman Tony Todd. Just then, trainee Michael Cera comes busting through the fourth wall in a bulldozer. The vase topples over. Later, back at the station, police chief Jeffrey Wright seen looking over a bill chews out Gibson and Cera for the wanton destruction that is costing the city millions. Fellow officer Kiefer Sutherland, who is actually the mole and the real criminal mastermind, is seen consoling McGavin with a giant check.

Except in real life, there is no check. Shooter McGavin never gets paid. The Takings clause doesnt cover property destruction caused by law enforcement as they are trying to enforce the law. The Tenth Circuit explains:

[T]he Lechs urge us to disregard the distinction between the police power and the power of eminent domain in resolving this appeal. In support, they point out that the Takings Clause was designed to bar [g]overnment from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole. Aplt. Br. 13 (quoting Armstrong v. United States, 364 U.S. 40, 49 (1960)). And they argue that upholding the district courts summary-judgment ruling would do just that: it would force the Lechs to bear alone the cost of actions the defendants undertook in an effort to apprehend[] a criminal suspectactions that were clearly for the benefit of the public as a whole. Id. at 13, 33.

We do not disagree that the defendants actions benefited the public. But as the Court explained in Mugler, when the state acts to preserve the safety of the public, the state is not, and, consistent[] with the existence and safety of organized society, cannot be, burdened with the condition that the state must compensate [affected property owners] for pecuniary losses they may sustain in the process. 123 U.S. at 669. Thus, [a]s unfair as it may seem, the Takings Clause simply does not entitle all aggrieved owners to recompense. AmeriSource Corp., 525 F.3d at 1152, 1154.

Accordingly, we reject the Lechs first broad challenge to the district courts ruling and hold that when the state acts pursuant to its police power, rather than the power of eminent domain, its actions do not constitute a taking for purposes of the Takings Clause. And we further hold that this distinction remains dispositive in cases that, like this one, involve the direct physical appropriation or invasion of private property.

I do not think that just compensation for the destruction of property unduly burdens the police in their pursuit of enforcement. Its not like the officers have to pay for the damage out of their own pockets. The taxpayers do. And you dont have to shroud yourself too darkly behind the veil of ignorance to imagine that taxpayers should want to share the collective burden of destruction pursuant to an arrest, as opposed to localizing those cost on one unlucky individual. However, if local and state officials were kind of sick of paying the costs of police property destruction, and that filtered down to the point where police were a little more cautious before destroying an entire house to catch a shoplifter, that would also be a good thing.

The Tenth Circuit appears to be right on its interpretation of Fifth Amendment precedent, which means Im going to need (gulp) progressives and conservatives to help change the law here. That should be possible, right? Progressives are woke to the fact that police have entirely too much power to harm innocents without accountability, conservatives allegedly care when big government does anything to mah property. Surely we can reach some kind of broad consensus that if the cops shoot up your house because it was invaded by a criminal, the state should pay you back for it.

We should fix this. I cant imagine James Madison thought it was okay for the government to nuke your house from orbit because a petty thief commandeered your kitchen.

Police blew up an innocent mans house in search of an armed shoplifter. Too bad, court rules. [Washington Post]

Elie Mystal is the Executive Editor of Above the Law and a contributor at The Nation. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.

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I Want This To Be A 'Taking,' Even Though It's Not - Above the Law

Governor Gavin Newsom tours a home destroyed in the Kincade fire, Friday, October 25, 2019, in ... [+] Geyserville, California. (Karl Mondon/MediaNews Group/The Mercury News via Getty Images)

Two million Californians without power; 200,000 evacuated from the path of the Kincade fire in Sonoma County, believed to have been sparked by a broken jumper cable on a PG&E power line. California Governor Gavin Newsom is sure of whos to blame. This week he condemned the utilitys decision to shut off power to residents in fire-prone areas. As it relates to PG&E, its about dog-eat-dog capitalism meeting climate change, he said. Its about corporate greed meeting climate change. Its about decades of mismanagement. Its about focusing on shareholders and dividends over you and members of the public. Its a story about greed. Newsom said Californians could not accept these blackouts, and he would fine the utility $100,000 per day for rule violations.

Threats and name-calling are unlikely to be effective. PG&E, in court documents filed last week in its ongoing bankruptcy case, made clear its position that until courts and lawmakers change what the utility sees as unconstitutional state laws, northern Californians will have little choice but to suffer more forced power outages when the wind gusts.

At issue here is something called inverse condemnationits a legal doctrine that holds utility companies like PG&E to a strict liability standard. It doesnt matter if a fire starts by accident or negligence, if it happens on the companys equipment, then the utility is responsible for damages. The application of inverse condemnation to California utilities goes back to court decisions in the 1960s and 70s. And for decades investor-owned utilities, like PG&E, Southern California Edison and San Diego Gas & Electric, were okay with the law, because the courts held that they could socialize the burden by hiking electricity rates enough to cover any unexpected costs, thus spreading the pain around evenly. When PG&E, for instance, had faith that regulators would let it socialize fire damage across its 16 million customers, it didnt feel such a need to shut off power across a broad territory to lower the already remote likelihood of a fire breaking out.

But a few years ago, the status quo changed. A legal briefwritten by attorney Kevin Orsini from Weil, Gotshal & Manges and submitted October 23, jointly by both PG&E and its creditors to U.S. Bankruptcy Court in the Northern District of Californiaexplained that a watershed moment for Californias investor-owned utilities came in the wake of a 2015 decision by the California Public Utilities Commission, in which regulators turned down requests by SDG&E for $379 million in cost reimbursements for 2007 wild fires sparked by their lines. A higher court upheld the rejection. And with that, no longer could the power companies be confident in passing along fire costs.

The seriousness of this change was realized over the next few years. The Tubbs fire hit Santa Rosa, California, in October 2017; it burned 36,000 acres, destroyed 5,600 structures and killed at least 22. It was considered the worst fire in state history until 2018 when the Camp fire broke out in Butte County. It burned 150,000 acres, incinerated 19,000 buildings and took 86 lives.The infernos left PG&E with more than $30 billion in fire liabilities that it had little hope of spreading across its rate base.

Firefighters look on as a structure burns during the Kincade fire off Highway 128, east of ... [+] Healdsburg, California, on October 29, 2019. (Photo by Philip Pacheco / AFP) (Photo by PHILIP PACHECO/AFP via Getty Images)

According to court filings, PG&E shareholders hope to be rescued from oblivion by the Fifth and Fourteenth Amendments to the U.S. Constitution. The Takings Clause of the Fifth Amendment provides that no private property may be taken for public use without just compensation. The U.S. Supreme Court has ruled that the purpose of this is to prevent the government from forcing some people alone to bear the public burdens which, in all fairness and justice, should be borne by the public as a whole. The Fourteenth Amendment furthermore protects against arbitrary or irrational deprivations of life, liberty or property by government entities.

If PG&E were allowed to recoup fire costs from ratepayers, then all would be constitutional. But thats not how it works today, according to PG&Es brief:

Because PG&E has no guaranty that it can spread any losses it is forced to pay as a result of inverse condemnation claims, the application of inverse condemnation to PG&E is nothing more than the transfer of private property from one private entity (PG&E) to another (the inverse plaintiff) without any compensation, let alone just compensation. This uncompensated taking of PG&Es property violates the Fifth Amendment of the United States Constitution (as incorporated against the states by the Fourteenth Amendment) and the California Constitution. . . . Without a guarantee that PG&E can recover inverse condemnation costs, the imposition of such strict liability through a doctrine premised on socialization of losses constitutes an unlawful taking without just compensation, and an arbitrary and irrational process that violates the Debtors substantive due process rights.

With $30 billion-plus of fire liabilities hanging in the lurch, PG&E has every incentive to fight Californias application of inverse condemnation all the way to the U.S. Supreme Court, if needed. If it prevails, Californians will need to gird themselves for even higher electricity prices. Divvying up existing fire liabilities would cost the average PG&E customer about $2,000.

Among Californias investor-owned utilities, PG&E is most exposed, with half of its 70,000-square-mile territory in high-fire-risk zones, it has had three times more fires per mile of power lines than SCE or SDG&E, according to analyst Hugh Wynne with SSR. Its unlikely the utility will survive these fires, at least in its current form.

Before the Kincade fire broke out in Sonoma County last week, the judge in PG&Es bankruptcy case had allowed the parallel development of dueling reorganization plans offered by the company as well as its major creditors. Hearings are scheduled to continue into 2020. PG&E, for its plan, had lined up $34 billion in debt financing and would have paid $8.4 billion to fire victims and $11 billion to insurers, while maintaining a nugget of value for common shareholdersall contingent upon the avoidance of a devastating 2019 fire season. Bondholders, meanwhile, pitched a plan that would pay out $25.5 billion to victims and insurers, but would wipe out shareholders. All this is up in the air now that the Kincade fire has burned 75,000 acres and is encroaching upon the towns of Windsor and Healdsburg, with another round of ferocious winds forecast.

Will they have to scrap the plans and start over? Too soon to tell, but the Kincade fire has already burned 75,000 acres and 150 structures. Given that cropland and pastureland in California averages between $3,000 and $12,000 an acre, according to the USDA (more for Sonoma Valley vineyards), its likely that PG&E will be on the hook for hundreds of millions in additional damages.

Is there any hope for PG&E shareholders, like Abrams Capital Management, Knighthead Capital and Redwood Capital Management, which reportedly bought shares earlier this year above $6.50 only to ride them down to a current $4.50 (down from $70 in 2017)? Probably not. PG&Es equity market cap of $2.4 billion is overwhelmed by $75 billion in total liabilities, including about $22 billion in long-term debt, according to Factset. The biggest debtholders include PIMCO, with about $4 billion, Elliott Management $1.6 billion, Varde Partners $990 million and Apollo Global $700 million, according to court documents. Assets on PG&Es balance sheet total $83 billion.Damages for the Tubbs fire have yet to be fully tallied.

And if the company cant convince the court its rights have been violated? California lawmakers could come to the rescue and write a new interpretation of inverse condemnation, heeding the recommendation of this years Final Report of the Commission on Catastrophic Wildfire Cost and Recovery which found that:

The current interpretation of inverse condemnation, holding utilities strictly liable for any wildfire caused by utility equipment regardless of standard of care or negligence, imperils the viability of the states utilities, customers access to affordable energy and clean water, and the states climate and clean energy goals; it also does not equitably socialize the costs of utility-caused wildfires.

Among other recommendations, the commission suggested replacing the strict liability interpretation of inverse condemnation with a fault-based standard. Such reform could save a sliver of value for shareholders and pay off big for owners of PG&Es debt.

If reform doesnt happen, it could push the company to sell assets in a reorganization that could put much of the company in the hands of new municipal power utilities, owned by the public rather than investors. But dont think that the outright socialization of Californias power grid would keep electricity rates lower. Unlike the investor-owned utilities, municipalities already have the ability to levy new taxes on residents, and wouldnt require the blessing of the Public Utilities Commission to use inverse condemnation to hit ratepayers with the costs of future fires. One way or another, if Californians want to keep the lights on, theyre going to have to pay for it.

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How The Future Of Californias Power Grid Hangs On The Constitutionality Of Inverse Condemnation - Forbes

Provisions in House Speaker Nancy Pelosi's (D-Calif.) bill (HR 3) that aims to reduce prescription drug prices in the United States might violate the U.S. Constitution, according to a memo issued last week by Congressional Research Service (CRS) that was obtained by news outlets.

Your cheat sheets for understanding health care's legal landscape

The bill, called the Elijah E. Cummings Lower Drug Costs Now Act, includes several provisions intended to lower U.S. drug prices. For instance, the bill would allow the HHS secretary each year to negotiate prices for high-cost drugs that lack two generic or biosimilar competitors on the market. The bill would allow the HHS secretary to negotiate prices for between 35 and 250 high-cost drugs each year.

The bill would establish a drug price ceiling for the negotiations based on the prices paid for the drugs in other countrieswhich is somewhat similar to a White House proposal that would tie payments for drugs covered by Medicare Part B to certain international prices.

Pharmaceutical companies that refuse to negotiate prices with HHS would face a 65% tax on the drug's annual gross sales from the previous year. That penalty would increase by 10 percentage points for every quarter that a deal remains unstruck, with the penalty maxing out at 95%. If a drugmaker negotiates a price with HHS but then overcharges Medicare or does not provide other payers the negotiated price, HHS could levy a civil penalty equivalent to 10 times the difference between the negotiated price and the offered price.

The bill also would set limits for prescription drug price increases. The bill would require pharmaceutical companies to either lower the prices of drugs covered by Medicare Parts B and D if the drugs have experienced price hikes at rates above inflation since 2016, or pay a rebate worth the entire difference in the price above inflation to the Department of the Treasury. The bill states that setting the base year of inflation as 2016 would reverse unjustified price increases that have occurred over the past three years.

Further, the bill would create an out-of-pocket maximum of $2,000 for prescription drugs covered by Medicare Part D.

In addition, the bill would require that the copayment for a drug under participating employer-sponsored health plans not exceed the negotiated price, require federal investigators to examine the effects of price negotiation and extending the inflation cap to employer-sponsored plans, and ensure data collected under the bill is not duplicative.

The bill also would increase Medicare Part B reimbursements for biosimilars for five years. Under current rules, Medicare Part B reimburses providers a 6% markup of a biosimilar's average sales price, but the bill would increase that rate to an 8% markup of the drug's average sales price.

The bill also includes new price transparency requirements for drugmakers and expanded eligibility for the low-income subsidies offered in Part D.

CRS in its memo wrote that the bill's proposal to require the HHS secretary to negotiate drug prices, as well as its proposed fines for companies that refuse to negotiate prices with HHS or that negotiate a price but then overcharge Medicare or fail to provide the negotiated price to other payers, might violate the Constitution's Fifth and Eighth Amendments and might not be in line with Congress' taxing authority granted by the Constitution.

For example, CRS in the memo notes that the provision to require the HHS secretary to negotiate drug prices might violate the Fifth Amendment's so-called "Takings Clause," which prohibits the federal government from taking property without "just compensation." According to CRS, pharmaceutical companies could point to the clause to argue that any revenue losses they experience as a result of price negotiations is considered a "taking" under the clause, and therefore is unconstitutional. "In general, if legislation causes a claimant's property to suffer a significant diminution in value or a deprivation of economically beneficial use, the legislation may result in a regulatory taking," CRS wrote.

But CRS also noted that "it is generally difficult to prevail on a takings challenge," so companies might not be successful in challenging the bill based on the Takings Clause.

According to STAT+, "perhaps the most problematic portion of the sweeping" bill that CRS flagged is its proposed fines on pharmaceutical companies. CRS raised questions regarding whether Congress has the power to levy the fines, noting that although courts have granted Congress significant flexibility when it comes to its taxing authority, its authority to levy fines as taxes is not as substantial.

CRS wrote that it believes "Congress likely has the constitutional authority to impose the excise tax," but said the issue would have to be determined by judges. However, CRS noted that, even if Congress does have the power to implement the fines as a tax, they might be considered "excessive" under the Eight Amendment's clause on excess fines.

But CRS again noted that pharmaceutical companies might have a hard time convincing a judge that the fines are excessive. "Ultimately, even if certain factors suggest the excise tax is disproportional, it is unclear whether a court would consider the excise tax to be grossly disproportional to the gravity of a drug manufacturer's offense given the fact-intensive nature of the inquiry, the deference courts afford to Congress in this area, and the absence of on-point case law," CRS wrote.

Overall, CRS did not make a definitive conclusion on whether the provisions violate the Constitution, stating that a final decision on the matter would have to be made by a judge.

According to STAT+, a spokesperson for the House Energy and Commerce Committee said, "We've consulted with legal experts and firmly believe the legislation is constitutional." The spokesperson added, "Any lawyer can argue against a bill's constitutionality, but that doesn't mean those arguments have merit."

House Ways & Means Committee spokesperson Erin Hatch said, "The excise tax this bill would impose on drug manufacturers that continue to charge Americans higher prices than patients in the rest of the world falls squarely within Congress' taxing authority," Inside Health Policy reports.

According to STAT+, Amy Hall, staff director of the House Ways & Means Committee's Subcommittee on Health, also said, "We do not believe that this bill is in violation of the constitution."

But some federal lawmakers have raised concerns over the potential constitutional violations, and have cited the issue as a reason to delay further consideration of the bill, STAT+ reports. For example, Rep. George Holding (R-N.C.) last week said, "These things do get litigated," adding, "Perhaps it might be opportune to take a pause, [and] have further hearings on the central constitutional problems."

According to Inside Health Policy, some Republican lawmakers have expressed concerns that the fines might be excessive, with Rep. Kevin Brady (R-Texas), the ranking member on the House Ways & Means Committee, equating them to "extortion."

The bill is facing other challenges, too, as House Democrats have disagreed over an amendment added last week to the bill that would require HHS and other federal agencies to examine whether imposing inflation-tied caps on prescription drug price increases in Medicare could be extended to employer-sponsored health plans. According to Politico's "Pulse," House Democratic leaders have expressed concerns that the amendment's language is too weak, but progressive lawmakers have said they already have compromised with Democratic leaders on the language. Rep. Lloyd Doggett (D-Texas), said, "Any action to pull this amendment would be disconcerting, since this could not have happened without leadership input."

According to Inside Health Policy's "The Regimen," House leaders have delayed a floor vote on the bill that was planned for this week to give Democratic lawmakers more time to discuss amendments to the legislation (Cohrs, Inside Health Policy, 10/25 [subscription required]; Florko, STAT+, 10/25 [subscription required]; Anderson, Becker's Hospital Review, 10/25; Diamond, "Pulse," Politico, 10/28; Wilkerson, "The Regimen," Inside Health Policy, 10/28 [subscription required]).

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Pelosi's Rx pricing bill might be unconstitutional, congressional researchers say - The Daily Briefing

Robert Evans, actor and producer. Born: 29 June, 1930 in New York, New York, United States. Died: 26 October, 2019 in Beverly Hills, California, United States, aged 89

Robert Evans, the fast-living Hollywood producer and former Paramount Pictures production chief who backed such seminal 1970s films as Chinatown, The Godfather and Harold and Maude, has died at the age of 89.

His career was a story of comebacks and reinventions. Evans had launched a successful womens clothing line with his brother, Charles, and was visiting Los Angeles on business when actress Norma Shearer saw him sunbathing by the pool at the Beverly Hills Hotel. She persuaded producers to hire the handsome, dark-haired 26-year-old to play her late husband, movie mogul Irving Thalberg, in Man of a Thousand Faces, a film about horror movie star Lon Chaney.

After acting roles faded, Evans re-emerged at Paramount and quickly converted the studio from a maker of mediocre films to the biggest hit machine in Hollywood, home to The Godfather and Love Story among others.

For decades, and with many flops in between, the ever-tanned, large glasses-wearing Evans was one of Hollywoods most outsized and flamboyant personalities, encapsulating the romance of a now bygone movie era where films were greenlit more on instinct than market research. He was married and divorced seven times. He was the model for Dustin Hoffmans petty-minded Hollywood producer in the 1997 satire Wag the Dog.

The higher you get, the lower you can fall, Evans mused in a 2003 interview. You pick yourself up at the count of nine, you come back and win and be done with it. I believe in being a survivor.

The title of his 1994 memoir, The Kid Stays in the Picture (later turned into a 2002 documentary) came from an early story of his improbable success.

After he appeared in Man of a Thousand Faces Darryl Zanuck signed Evans to a contract at Twentieth Century Fox and cast him as a bullfighter in The Sun Also Rises. The filmmakers insisted the young actor wasnt right for the role, so Zanuck went to Mexico City, where the film was being made, to see for himself. His verdict: The kid stays in the picture.

It was Evans who optioned The Godfather while Mario Puzo was writing it. As Paramount chief, Evans presided over Francis Ford Coppolas production but his role in the movie, itself, has sometimes been exaggerated including by Evans, himself. But Coppola, recalled Evans fondly this week, recollecting the producers charm, good looks, enthusiasm, style and sense of humour.

He had strong instincts as evidenced by the long list of great films in his career. When I worked with Bob, some of his helpful ideas included suggesting John Marley as Woltz and Sterling Hayden as the Police Captain, and his ultimate realization that The Godfather could be two hours and 45 minutes in length, said Coppola, also noting Evans contributions to The Cotton Club.

May the kid always stay in the picture, added Coppola.

Evans was born Robert J Shapera in New York, the second son of Archie Shapera, a dentist, and his wife, Florence, a housewife. He began acting in radio while in junior high school, going on to appear in more than 300 shows.

After The Sun Also Rises, Evans left Hollywood to join his brother in the clothing business, but was lured back in 1966 when Zanuck offered him a three-picture contract as a producer. That same year Paramount Pictures hired him to head production.

From 1966 to 1974 Evans presided over such hits as The Odd Couple, Rosemarys Baby and Goodbye, Columbus. He was a pivotal figure not only restoring Paramount but in a halcyon period of auteur-driven moviemaking, backed storied directors including Sidney Lumet, Hal Ashby and Peter Bogdanovich.

Albert Ruddy, who won an Oscar as producer of The Godfather, credited Evans with filling an essential role in the pictures success. When Paramounts head of distribution objected to the nearly three-hour running time, Evans backed up the filmmakers and insisted that the movie not be cut. He said, Ill quit before I cut the movie, Ruddy said. He saved the movie.

Evans didnt share in Paramounts prosperity, however. He wasnt granted any bonuses, and his string of marriages and divorces drained away much of the money he did make. After brief marriages to actresses Sharon Hugueny and Camilla Sparv, he married MacGraw, who became a star with her performance in Goodbye, Columbus. She gave birth to Evans only child, Joshua. MacGraw became a superstar after Love Story, then went off to Texas to spend four months making The Getaway with Steve McQueen, with whom she had one of Hollywoods more notable affairs. She and Evans divorced in 1972 and he married former Miss America Phyllis George in 1977. They split a year later.

Meanwhile, Evans had formed his own production company, and he quickly turned out one of the biggest hits of 1974, Roman Polanskis Chinatown. It earned Evans his lone Oscar nomination.

The next decades brought a period of failures, however, including Coppolas The Cotton Club, and the Chinatown sequel The Two Jakes and the thrillers Sliver and Jade. In 1980 he pleaded guilty to cocaine possession and was placed on a years probation.

In 1983, he was called to testify at a preliminary hearing in the murder of a Cotton Club investor, Roy Radin. On the advice of his lawyers, Evans pleaded the Fifth Amendment. Although he was never connected to any wrongdoing, his refusal to testify to avoid self-incrimination further sullied his reputation.

He had a near-fatal setback in 1998 when he suffered a stroke in a Hollywood screening room.

A bolt of lightning shot through my body, he told a reporter later. I thought I had died. I heard Ella Fitzgerald sing Its a Wonderful World.

Evans underwent a grueling rehab, but still found time for his fifth wedding, this time to Oxenberg. The marriage barely lasted longer than the couples five-day courtship. My fault, Evans said afterward. My brain wasnt working right.

Wedding No. 6 occurred in 2002. The bride was Leslie Ann Woodward, a model and actress. Divorce followed a little more than a year later. In 2005, Evans married Lady Victoria White, a socialite 33 years his junior. At the time he had just finished his second memoir, The Fat Lady Sang, and he told Time magazine that with this marriage, I finally found the last chapter. But he and White also divorced, in 2006.

Evans last movie as a hands-on producer was a hit: the 2003 romantic comedy How to Lose a Guy in 10 Days.

JAKE COYLE

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Obituary: Robert Evans, legendary movie mogul who backed such hits as The Godfather and Chinatown - The Scotsman

Suffolk County District AttorneyInyoung You has been charged with involuntary manslaughter in the death of her boyfriend, Alexander Urtula, who died by suicide at Boston College in Massachusetts on his graduation day.

Inyoung You is a 21-year-old South Korean woman who has been charged with involuntary manslaughter in the suicide death of her boyfriend, Alexander Urtula, at Boston College. The 22-year-old Urtula died by suicide on his graduation day on May 20, 2019. Prosecutors say You, a former BC student, was physically, verbally and psychologically abusive toward Urtula during an 18-month-long tumultuous relationship.

You was indicted by a grand jury on October 18, 2019, Suffolk County District Attorney Rachael Rollins announced on October 28. She has returned to South Korea and dropped out of Boston College during her junior year, Rollins said.

Rollins office said in a statement, The abuse became more frequent, more powerful and more demeaning in the days and hours leading up to Mr. Urtulas death.

Urtulas family had traveled to Massachusetts from his native New Jersey for his graduation, which was held at Alumni Stadium on the Boston College campus. But Urtula jumped to his death from the Renaissance Park Garage in Roxbury at 8:35 a.m., two hours before he was set to graduate.

You was tracking Urtulas location using his iPhone on the day he died, as she frequently did, Rollins said, and she was at the Renaissance parking garage and present on the roof when he leapt and killed himself.

If you or someone you know has been affected by domestic violence and are in immediate danger call 911. In addition, a free 24/7 statewide support line is available through SafeLink at 1-877-785-2020, Rollins office said in a statement. To be connected to additional resources you can also contact the Suffolk County District Attorneys Office at 617-419-4000 and ask to the Chief of the Victim Witness Advocate Unit. You are not alone. Help is available.

If you or someone you know is having suicidal thoughts, the toll-free National Suicide Prevention Lifeline at 1-800-273-TALK (8255) is available 24 hours a day, seven days a week. All calls are confidential. You can also text HOME to 741741 to reach the Crisis Text Line, which provides 24/7 support with a trained crisis counselor. You can also call the NAMI (National Alliance on Mental Illness) helpline at 1-800-950-6264, or text NAMI to 741741. NAMI also has programs for family and caregivers that provide education and support.

Heres what you need to know about Inyoung You and the suicide death of Alexander Urtula:

The investigation into Alexander Urtulas death was led by the Massachusetts Bay Transportation Authority, which operates the Renaissance garage, and the Suffolk County District Attorneys Office, according to the DAs press release. Investigators searched Urtulas cell phone after he died and said they learned about the abusive nature of his communications with Inyoung You, his girlfriend of 18 months.

This unrelenting abuse was witnessed by friends and classmates of both parties and documented extensively in text messages between the couple, and in Mr. Urtulas journal entries, the district attorneys office said.

According to prosecutors, In the two months prior to his May 20 death, the couple exchanged more than 75,000 text messages, of which Ms. You sent more than 47,000. Many of the messages display the power dynamic of the relationship, wherein Ms. You made demands and threats with the understanding that she had complete and total control over Mr. Urtula both mentally and emotionally. Her texts included repeated admonitions for Mr. Urtula to go kill himself to go die and that she, his family, and the world would be better off without him.

Rollins said at a press conference that You specifically told Urtula to kill himself hundreds to thousands of times in text messages. There were many, many instances in which she instructed him to do so, Rollins said.

The district attorneys office said You used manipulative attempts and threats of self-harm to control Urtula and to isolate him from friends and family. According to prosecutors, You was, aware of his spiraling depression and suicidal thoughts brought on by her abuse. Even still, she continued to encourage Mr. Urtula to take his own life.

Suffolk DA Announces Indictment Of Ex-BC Student In Boyfriend's SuicideSuffolk County District Attorney Rachael Rollins announced Monday that a former BC student from South Korea has been charged with involuntary manslaughter in the suicide death of her boyfriend last May.2019-10-28T16:07:09.000Z

Students come to Boston from around the world to attend our renowned colleges and universities. They are eager to learn and experience our vibrant city. Their families and loved ones do not expect them to face unending physical and mental abuse, District Attorney Rachael Rollins said in a statement.

According to prosecutors, The indictment alleges Ms. Yous behavior was wanton and reckless and resulted in overwhelming Mr. Urtulas will to live; and that she created life-threatening conditions for Mr. Urtula that she had a legal duty to alleviate, which she failed to do.

Rollins added, I would like to thank my staff, especially Assistant District Attorneys Caitlin Grasso and Cailin Campbell, who have led this investigation and carefully considered how to bring this unique case to trial where a jury will ultimately decide if Ms. You caused Mr. Urtula to take his life. The work of the MBTA Transit Police was invaluable.

Superintendent Richard Sullivan of the MBTA Police Department said at a press conference, I personally responded to this scene back in May and what appeared to be a self-inflicted horrific tragedy ended up being much more than that.

Former Boston College Student Charged With Involuntary Manslaughter In Boyfriends SuicideWBZ TV's Louisa Moller reports.2019-10-28T16:12:30.000Z

Inyoung You was studying economics at Boston College and was scheduled to graduate in 2020, according to her now-deleted Linkedin profile.

It is not clear if You has hired an attorney or if she has, who is representing her. She could not be reached for comment by Heavy.

Rollins said at a press conference, This case is a tragedy, but its just one example of a systemic epidemic. On a typical day there are more than 20,000 phone calls placed to domestic violence hot lines nationwide. Domestic violence does not discriminate. It effects individuals in every community, regardless of age, economic status, sexual orientation, gender, race, religion or nationality. Domestic violence does not manifest in one particular way. It can be forced isolation from friends or family, physical assault, stalking, economic coersion, emotional threats, sexual assault and psychological intimidation.

Rollins added, Domestic violence is not perpetrated by one type of abuser. A perpetrator is not limited by their gender or the gender of their partner. Domestic violence may not always look the same, but it is always about power and control.

Inyoung You and Alexander Urtula were both members of the Philippine Society at Boston College, according to the groups Facebook page. You served as the groups treasurer in 2017. The Philippine Society of Boston College (PSBC) is an organization that celebrates the beauty and richness of the Filipinx culture, the group says on Facebook.

Urtula, who graduated from Regis High School in Manhattan, studied biochemistry at Boston College. He had worked as a research assistant at Brigham and Womens Hospital while still at BC, according to his Linkedin profile. He is survived by his parents and brother.

After his death, Joy Moore, the interim vice president of student affairs at Boston College, said in a statement, Alexander Urtula, from Cedar Grove, New Jersey, was a biology major in the Morrissey College of Arts and Sciences, who had completed his course work in December. He was working as a researcher in a hospital in New York, and had planned to attend Commencement Exercises today.

Moore added, Alexander was a gifted student who was involved in many activities while at BC, including the Philippine Society of Boston College. While today is a day for celebration, we ask you to take a moment to remember Alexander, his family, and friends in your prayers during this most difficult time.

Rollins said it was an incredibly tragic event, where his family was present from New Jersey waiting for him to arrive and there were a series of correspondence between him and his family where ultimately they learned he intended to do this.

She said they were waiting to watch him graduate and his family never got to do so.

Inyoung You could be extradited to the U.S. if she does not return to Massachusetts and surrender voluntarily to authorities, according to prosecutors. But Suffolk County District Attorney Rachael Rollins said she is cautiously optimistic that You will return on her own.

Additional information about the allegations against Ms. You will be provided during her arraignment, which this Office is working with her counsel to coordinate, Rollins said.

She said, There are any number of ways that we could try and extradite her back from Korea. There are also ways that we could look at possible Interpol red notices. But we are fully fluent of the ways we can get her back if she doesnt want to voluntarily. We are hopeful, but cautiously optimistic, that she will return on her own, but we are moving forward with this case.

Involuntary manslaughter is a felony and carries a possible sentence of up to 20 years in state prison, according to Massachusetts law.

The case has drawn comparisons to the Michelle Carter case, which also occurred in Massachusetts. She was accused of encouraging her boyfriend, 18-year-old Conrad Roy, to kill himself when she was 17, in July 2014. She was charged with involuntary manslaughter. Carter, now 22, was found guilty by Bristol County Juvenile Court Judge Lawrence Moniz and sentenced to 15 months in prison. She is currently serving that sentence and is scheduled to be released on March 13, 2020.

Carter appealed her conviction to the Massachusetts Supreme Court, but her appeal was denied. Her lawyers have petitioned to the U.S. Supreme Court asking for it to be considered on First Amendment and Fifth Amendment grounds.

Carter sent text messages to Roy as he attempted suicide, pushing him to kill himself, according to prosecutors. The case was the subject of an HBO documentary I Love You, Now Die: The Commonwealth v. Michelle Carter, in 2019.

The Massachusetts legislature is currently considering Conrads Law, a bill that would criminalize suicide coercion in the state, according to Boston.com.

Rollins mentioned that possible law and added, Of course were aware of the Carter decision, this a distinct fact pattern, there are similarities that the culriprits are both the girlfriends in those circumstances. Where I would distinguish, and I think the facts will show, in Carter there was very limited physical contact prior and some very egregious language in the moments leading up to the death. We have, quite frankly, I would say the opposite of that. We have a barrage of a complete and utter attack on this mans very will and consience and psyche by an individual to the tune of 47,000 text messages in the two months leading up and an awareness, we would argue, of his frail state at that point.

READ NEXT: Accused Killer Posts Grisly Photos of Teen Girl on Instagram

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Inyoung You: 5 Fast Facts You Need to Know - Heavy.com

Greenville, SC (FOX Carolina) - On Wednesday, suspended Greenville County Sheriff Will Lewis told his side of the story when he testified in his defense.

The state called their final witness Wednesday morning and the defense began laying out their case after the lunch break.

Day 3 of the trial followed a day that included emotional testimony from Lewis' former assistant Savanah Nabors.

Nabors spent four hours on the stand Tuesday. During her testimony, Nabors outlined the alleged extra-marital affair Lewis is accused of using taxpayer funds to to pay for. She also described how Lewis allegedly assaulted her in her hotel room on that trip.

Lewis has maintained that their relationship was completely consensual.

Prosecutors called former Greenville County Sheriff's Office Public Information Officer Drew Pinciaro to the stand.

Pinciaro testified that before Lewis took office, the role of Savanah Nabors was mostly filled by sheriff Loftis' secretary Jackie Cooper. Pinciaro said that previously in his role as PIO, he, Ryan Flood, and Cooper took care of scheduling meetings for the sheriff, writing speeches.

Pinciaro said that he would describe the relationship between Savanah Nabors and Sheriff Lewis as that of a big brother and little sister. He went on to say while most employees under Lewis referred to him as sheriff, Nabors always addressed him as Will.

According to Pinciaro, he never noticed anything unusual until the day he said Nabors failed to show up for a fallen Spartanburg officer's funeral. Previously it had been agreed that she, Lewis, Flood and himself would attend the funeral together, but was told by Lewis she had left to go to Florida.

According to Pinciaro Lewis, Flood, and himself all attended the church service, but when they arrived for the graveside service for the officer, Lewis stayed in the car on the phone with Nabors.

Pinciaro went on to say he was told by Sheriff Lewis that Nabors had quit or was going to quit and that he told he and Ryan Flood, "If I was you, I wouldnt talk to her.

Pinciaro was also questioned about Nabors involvement at a crime scene and asked why should would be there. According to Pinciaro, he never saw Nabors predecessor at a crime scene and didn't know why she would be there.

The state called a SLED forensic investigator Lt. David Britt Dove, who specializes in mobile devices, to the stand. After establishing the investigator as an expert witness in his field, he testified that he performed an extraction on Sheriff Lewis' phone.

According to the investigator, the extraction reveals text messages, call logs, apps, and locations of the phone's user.

The witness confirmed that the messages between Nabors and Lewis presented in this trial did in fact come from Lewis' phone. He also went on to explain why phone calls between Nabors and Lewis did not appear in the extraction.

The final witness to take the stand in the state's case was Major Ty Miller. Miller was at the time, and still is, the highest ranking female deputy in the sheriff's office and on the GCSO command team.

Miller testified about the relationship between Lewis and Nabors saying their relationship was very giggly and fun, going on to say Nabors addressed the sheriff by his first name and said they seemed very comfortable together.

When questioned about the perceived favoritism towards Nabors, Miller said it caused some contention in the office that she got a new car and new phone when there wasn't money in the budget for some deputies to get new vehicles.

Around April 22, Miller said she received a message from Nabors stating she needed to talk to her. Miller met with Nabors, who told her that she and the sheriff had kissed and played her a recording she had made of Lewis talking about a possible trip to Reno in which they would stay together.

According to Miller, she couldn't understand a reason that Nabors would need to go to a sheriff's school training trip funded by taxpayer dollars, stating that there was no reason for her to be there.

At a later date, Miller says Sheriff Lewis admitted to her and Marcus Davenport that he'd had a sexual encounter with Nabors and was going to have a press conference to address it.

After Miller left the stand, the state played the press conference and rested their case.

The defense took over shortly before noon.

Attorney Rauch Wise entered a number of motions that the judge said he would consider during the lunch break.

The judge also advised Lewis of his rights, his right to testify and the protections offered under the Fifth Amendment.

Willis told the judge he intended to testify.

After the lunch break, the judge said he felt both indictments against Lewis contained very similar charges.

Solicitor Kevin Brackett argued however that the indictments were for different charges that go hand-in-hand, but they are not the same crimes.

The court agreed to that for time being.

Savanah Nabors' former boyfriend from the Greenville County Sheriff's Office was the first witness called by the defense.

Chad Ayers answered questions about his relationship with Nabors, which he admitted was kept hidden from the sheriff's department.

Ayers answered several questions about text messages exchanged between Nabors and himself.

Martine Helou, a former Greenville County Sheriff's Office employee was next up for the defense.

Helou testified that she was hired to help with community outreach and to create new programs from the sheriff's office.

During the cross-examination, Helou said she had expressed interest in working for Lewis while the suspended sheriff was campaigning. She was hired the month after Lewis won the election.

Helou said the left the sheriff's office in May 2019 after her position at the sheriff's office was eliminated.

Two more witnesses testified for the defense, a paralegal and an attorney at the law firm where both Nabors and Lewis worked previously, before Lewis took the stand.

Lewis's testimony began by outlining his military and law enforcement experience before he ran for office.

Lewis said Nabors was hired before he took office in accordance with the county pay scale for an administrative coordinator. During cross-examination, the solicitor questioned the salary range Lewis gave, but Savanah's initial salary was in the upper end of the salary range the solicitor provided.

Lewis said Nabors was actually his third choice for the position after a male candidate and a longtime paralegal who he had worked with previously did not take the offers.

Lewis wanted someone who could keep him on track, read his e-mails, and document closed-door meetings on his behalf. He said he was looking for someone flexible who could be on-call at all hours, and someone put together who could handle his calendar and schedule.

Lewis said he identified major needs for new vehicles, equipment, and radios when he took office. He said the normal annual increase in the sheriff's office budget was not enough to cover it, so he reached out to Councilman Joe Kernell for advice.

Lewis testified that he recalled it was Kernell who suggested they schedule a meeting out of town since they could not initially get their schedules to jive.

This suggestion led to the budget meeting in Charlotte.

Lewis rebutted some of Nabors' claims when he testified about the weekend gathering.

He admitted to taking a bottle of liquor on the trip.

Its not uncommon for us to take a bottle of wine or a bottle of liquor with us when we go out of town," Lewis said.

Lewis said the bottle would not fit in his suitcase, so he placed it on top of Nabors' zipped bag.

He admitted that after the first night's activities, he returned to Nabors' hotel room for a nightcap.

He said they began talking and then kissed, which Lewis said surprised him.

The kiss led to them both taking off each other's clothes and intimacy, but said nothing was done without Nabors' consent.

Lewis also denies that Nabors was unconscious during the sexual encounter.

Afterwards, he said, "A million things went through my head. I knew that I had violated my oath to my wife. I was very bothered that I had cheated on my wife."

He then claims he went back to his room, alone, and that was the end of the sexual contact between them on the trip.

Lewis said he and Nabors

had no problems personally or at work when they returned from Charlotte. He said their sexual encounter was talked about briefly, but more in the context of shame for Lewis.

He admitted that he continued to pursue Nabors, and referenced a conversation between them that was recorded.

I pursued on audio and it was evidently clear that I was just dumb for pursuing a relationship with a woman who was not my wife.

Lewis said he never cussed Nabors out or threatened her but claims they had "boyfriend-girlfriend squabbles, like back in high school.

Through Wise's questioning, Lewis maintained that he never improperly spent any company money.

When wise asked if Lewis ever spent any inappropriate money on Nabors, he replied, "No."

Lewis said that once news of his affair broke, a councilmancalled for audit of the sheriff's office's finances. Lewis said that audit yielded no findings of misuse of money.

During the cross-examination Lewis stated, "I would not have hired Savanah if I knew we would've had an affair."

Lewis denies that he once told deputies he and Nabors never had sex.

"My attorney at the time told me not deny having sex but that I could deny the rape and sexual assault."

Lewis said he only denied those allegations when he spoke to his staff. He maintained in his testimony that he still denied those allegations.

He did admit to asking Nabors, "What happens in Charlotte stays in Charlotte, right," because he did not want his wife to learn about the affair.

Recordings were played in which Lewis told Nabors he was not manipulating her but could if he wanted to.

Im completely capable of manipulating you, but I choose not to," Lewis said in the recording.

He maintained he was not manipulating Nabors, but was instead trying to "convince her" to go to a conference in Reno, NV with him "to continue an adulterous relationship."

Shortly before 6 p.m. the judge announced that he would dismiss the jury for the day and the solicitor's cross-examination will resume at 9:30 a.m. on Thursday.

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Day 3: Will Lewis testifies in his own defense - FOX Carolina

The Supreme Courtlast week agreed to review the Ninth Circuit's decision in Thuraissigiam v. U.S. Dep't of Homeland Sec.I wrote about the case in a March post captioned "Ninth Circuit Rules Expedited Removal Review Violates the Constitution: Expect more appeals, fewer negative credible fear findings, and more entries". The Supreme Court's ultimate decision, regardless of how it rules, will have significant ramifications for the administration's attempts to expand expedited removal.

The alien in that case, a Sri Lankan national, entered the United States illegally on February 17, 2017, and was arrested by a U.S. Customs and Border Protection (CBP) officer 25 yards north of the border. He was placed in expedited removal proceedings, and referred for a credible fear interview with an asylum officer after he claimed a fear of persecution. His credible fear claim was denied, and he requested a review of that decision by the immigration court. The immigration judge subsequently affirmed the asylum officer's negative credible fear determination.

Thuraissigiam then filed a petition for habeas corpus with the district court, which was dismissed for lack of subject-matter jurisdiction in accordance with the statute governing judicial review of expedited removal orders, section 242(e) of the Immigration and Nationality Act (INA) . The district court also rejected his constitutional claims under the suspension clause, discussed below.

The alien's petition for review to the circuit court asserted that the credible fear screening he was provided by the Department of Homeland Security (DHS) deprived him "of a meaningful right to apply for asylum" and protection under article 3 of the Convention against Torture (CAT). He also asserted that the asylum officer and immigration judge violated his due process rights under the Fifth Amendment of the Constitution.

Specifically, the alien alleged that the asylum officer had "failed to 'elicit all relevant and useful information bearing on whether [he had] a credible fear of persecution or torture.'" He also alleged that there were "communication problems" between him, the asylum officer, and the translator, as well as similar issues during the credible fear review hearing before the immigration court. Finally, Thuraissigiam claimed that he did not know whether the information he had given to the asylum officer and immigration judge "would be shared with the Sri Lankan government."

The statute governing judicial review in expedited removal proceedings strictly limits the scope of the questions the Article III court can consider and the relief it can grant. In particular, it allows review in habeas corpus proceedings, but this review is limited to determining whether the petitioner for habeas corpus is an alien, whether the petitioner was removed under the expedited removal provisions of the INA, and whether the petitioner could "prove by a preponderance of the evidence that [he or she] is an alien lawfully admitted for permanent residence", a refugee, or an asylee.

The circuit court concluded that this statute violated the Suspension Clause of the U.S. Constitution. That clause, Article I, Section 9, Clause 2 of the Constitution states: "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." The circuit court described the procedural protections in the judicial review provisions governing expedited removal cases as "meager", and found that that this was "compounded by the fact that" the review provision "prevents any judicial review of whether DHS complied with the procedures in an individual case, or applied the correct legal standards."

It should be noted that Congress went to great pains to limit the availability of judicial review of expedited removal determinations, consistent with the "expedited" nature of those proceedings. Simply put, Congress expected that aliens who entered the United States illegally would be quickly returned (with extremely limited exceptions), not that their cases would linger in the courts for years.

It is not a surprise that the Supreme Court agreed to hear this case for a number of reasons (including the clear restriction on the review authority of Article III courts from expedited removal proceedings set forth in the relevant statute), but perhaps the most significant is the fact that Thuraissigiam created a "circuit-split", that is, a disagreement with a decision in a different circuit, a fact I alluded to in my March 2019 post.

Specifically, in finding that the suspension clause was violated by the review procedures Congress had allowed in expedited-removal cases, the Ninth Circuit explicitly rejected the analysis of the Third Circuit in Castro v. U.S. Dep't of Homeland Sec., which I described in significant detail in an April 2017 post.

The Third Circuit there held that 28 different petitioners could not invoke the Constitution because each was apprehended shortly after entry, and therefore deemed an alien seeking initial admission to the United States, limiting their constitutional rights. In April 2017, the Supreme Court rejected a petition for writ of certiorari filed by the petitioners in that case.

Thuraissigiam has not yet been set for argument. The Court's decision, however, will have significant ramifications with respect to the appeals rights of aliens in expedited removal proceedings.

This is especially true if the September 27, 2019, injunction issued by Judge Ketanji Brown Jackson of the U.S. District for the District of Columbia is stayed or dissolved. That injunction blocked an attempt by DHS to expand expedited removal under section 235(b) of the INA to any alien who is apprehended after entering the United States without admission or parole and who has not been physically present in the United States for two years, in accordance with authority provided by Congress under section 235(b)(1)(A)(iii)(II) of the INA.

Should the Supreme Court find that the judicial review limitations in section 242(e) of the INA satisfy the constitutional rights of an alien like Thuraissigiam, who was apprehended shortly after he entered the United States, the question will then be whether they also satisfy the constitutional rights of an alien who has been in the United States for just less than two years. It is doubtful that the Court will directly answer this question even if it reverses the Ninth Circuit (and Judge Jackson's injunction is no longer in effect), but it will likely provide clues as to its ultimate conclusions on the issue.

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SCOTUS to Review Appeals of Credible-Fear Denials - Immigration Blog

The new guidelines are issued under Companies (Accounts) Amendment rules 2019

IICA to conduct self-assessment test for independent directors

The move ensures the competence of the director

The ministry of corporate affairs (MCA) on October 22, issued a notification stating that the board of directors will now be liable to provide the details of the independent directors (hired during the year) integrity, expertise and experience to the shareholders.

The new notification is a part of Companies (Accounts) Amendment rules 2019, which will be effective from December 1, 2019.

An independent director is one of the members of the board of directors, who do not have any stake in the company. The director is expected to guide and mentor the company to improve corporate credibility and governance standards by working as a watchdog and help in managing risk.

Moreover, MCA also clarified that that independent directors will have to pass a self-assessment test to prove their competence. IICA has also been authorised to maintain a list of candidates, who are eligible to become independent directors. Through this, the ministry wants to ensure that the independent directors are up to the task to protect the interests of the minority shareholders.

The test will be conducted by the Institute of Corporate Affairs (IICA), which is a part of MCA.It will evaluate the directors based on their knowledge of the Companies Act, securities law, basic accountancy and other subjects that are required for the individual to perform as an independent director.

A separate notification called Companies (Appointment and Qualification of Directors) Fifth Amendment rules, 2019 states that anyone willing to become independent director should apply for inclusion of their name within three months of the new rules coming into force or before getting hired as one.

After getting their names included in the list, the individual will have one year to pass the self-assessment test. However, the individuals, who have been working for over 10 years as directors or at any key managerial position in a company with INR 10 Cr or more paid-up capital, do not need to take the test.

Continued here:

Independent Directors Have To Fulfill These Criteria From December 2019 - Inc42 Media

WednesdaySep25,2019at12:01AM

The Trump Administration increasingly appears as the Fifth Amendment administration. Despite a statutory obligation to turn over an intelligence whistleblower report to the Congressional Intelligence Committees, it refuses to do so. And despite a statutory obligation to turn over the president's tax returns to the House Ways and Means Committee, it refuses to do so.

President Trump refused Special Counsel Robert Muller's request for an interview, instead sending responses to his questionnaire that omitted many answers. His administration has blocked Congressional subpoenas for numerous administration officials and others, like Commerce Secretary Wilbur Ross, who refuse to comply with subpoenas.

Why the obstruction? Because the administration has things to hide. As the Fifth Amendment formula goes: "I refuse to answer on the grounds that it might tend to incriminate me." This is how Trump and his administration increasingly appear. But the Fifth Amendment gives this right only to an individual who may not "be compelled in any criminal case to be a witness against himself." But they are an administration, not criminal defendants (not yet, anyway). Our representatives, or the public, have every right to answers.

Larry Koenigsberg, Eugene

Here is the original post:

The Fifth Amendment administration - Opinion - The Register-Guard

The Lincoln City Council on Monday unanimously approved an ordinance requiring gun owners to report thefts of their weapons to police.

That vote came after an amendment was approved removing language that would require owners to include the time, place and manner of the theft.

At least one defense attorney had said including that language could wind up requiring gun owners to incriminate themselves if they hadn't properly secured their weapon, which would violate the Constitution's Fifth Amendment.

Council Chair Jane Raybould had introduced the reporting proposal, which requires people to notify police within 48 hours of discovering their gun had been stolen.

The two-day grace period is geared toward ensuring police investigators get notified when video surveillance recordings or physical evidence is still generally available, Raybould said.

Anyone found to have violated the ordinance would face up to six months in jail and a $500 fine.

Her ordinance draws from the recommendations of Lincoln's Child Access to Firearms/Safe Storage Task Force, which pointed to a similar mandatory reporting law in Seattle.

Raybould on Monday noted that more than 60 firearms were stolen from vehicles in Lincoln in 2017 and 2018.

She said that while she understands and supports the Second Amendment guaranteeing people's right to own firearms, "with that right comes additional responsibilities."

Councilman Roy Christensen, who had opposed the ordinance and criticized its approach as making crime victims criminals, chose to support it after the amendment was approved.

Christensen said he consulted with several attorneys about the ordinance and said that with the language requiring divulging circumstances removed, "there does not appear to be any conflict easily identified with the state Constitution."

Christensen has introduced his own gun ordinance, requiring firearms left in vehicles to be locked up.

He has delayed consideration of his proposal until later in October to work out problems with the ordinance's wording.

We're always interested in hearing about news in our community. Let us know what's going on!

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Council approves gun theft reporting ordinance after tweak - Scottsbluff Star Herald

Appearing on MSNBC early on Sunday morning, former prosecutor Glenn Kirschner laughed off Rudy Giulianis latest defense of Donald Trumps attempt to blackmail Ukraine for dirt on former Vice President Joe Biden, calling his reasoning ridiculous and warning the former New York City mayor he better consider pleading the 5th Amendment if he is called before Congress.

Referring to Giulianis appearance on Fox News on Saturday night where the former New York mayor claimed the president had a constitutional duty to pursue claims of criminality in the case of Biden, Kirschner all but rolled his eyes.

I have never heard an argument before that if the president hadnt committed this crime, he would have committed a crime, Kirschner explained to laughter.

Think about how ridiculous that reasoning is, he continued. Let me tell you this, if Rudy Giuliani has any sort of lingering law abidingness or legal reasoning left in his head, when he hits the Congressional witness stand he sure better invoke his Fifth Amendment right against self-incrimination, which I predict any lawyer he retains will advise him to do because he is in hot water.

Watch below:

then let us make a small request. AlterNet is increasing its original reporting, edited by The Nations Joshua Holland, with a focus on 2020 election coverage. Weve also launched a weekly podcast, Weve Got Issues, focusing on the issues, not Donald Trumps tweets. Unlike other news outlets, weve decided to make our AlterNet 2020 coverage free to all. But we need your ongoing support to continue what we do.

AlterNet is independent. You wont find mainstream media bias here. From unflinching coverage of white nationalism, to spotlighting the overlooked struggles of the working poor, AlterNet continues to speak truth to power. As newspapers close, America needs voices like AlterNets to be sure no one is forgotten.

We need your support to keep producing quality journalism. As Silicon Valley absorbs more and more advertising dollars, ads dont pay what they used to. Every reader contribution, whatever the amount, makes a tremendous difference. Help ensure AlterNet remains independent long into the future. Support progressive journalism with a one-time contribution to AlterNet, or click here to become a subscriber. Thank you. Click here to donate by check.

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Ridiculous: Former prosecutor laughs off Giulianis latest defense of Trump and advises him to lawyer up - AlterNet

Easley lawyer Candy Kern-Fullercommitted egregious ethical violationsas the "central banker" of ascheme involving the illegal sale of military benefits, according to an attorney for the state of Arizona and a retired law professor at the University of South Carolina.

NEW: Easley attorney agrees to end 'civil conspiracy' of buying and selling veterans' benefits

The 51-year-old founder of Upstate Law Group and her cohorts profited by defrauding financially distressed veterans and unwitting investorsacross the country, her accusers say.

As part of a continuing investigation, The Greenville News and Anderson Independent Mail obtained and revieweda1,139-page transcript that was filed last week from an August hearing in Phoenix. Kern-Fuller invoked her Fifth Amendment right to remain silent 164 times during the hearing before the Arizona Corporation Commission.

Reading this story on a mobile device browser? Download our app for a better experience

"Facts show that she participated in illegal activity that was so egregious it could lead a reasonable person to conclude she operated or managed a criminal enterprise," retired professor John Freeman stated in a report submitted to the commission.

The Greenville Newscalled Kern-Fuller twice on Thursday and sent an email seeking comment. She did not respond.

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Freeman, who taughtcorporate law, securities lawand legal ethics for more than 30 years, testified as an expert witness during the six-day hearing.

The Arizona Corporation Commissionoversees corporations, securities and utilities in Arizona. The proceedings wererelated to enforcement actionsthat the commission is considering against Kern-Fuller, her firm,three other individuals and two companies that allegedly sold $371,191 in military benefits to Arizona investors in 2017.

The commission seeks a cease-and-desist orderandunspecified restitution.

According to investigators, the arrangements matched veterans seeking lump-sum payments with investors seeking safe returns.Kern-Fuller, whom Freeman described as the "central banker,"and others coordinating the transactions collected fees and commissions. It's not clear how much they earned.

Candy Kern-Fuller.(Photo: File photo)

Freeman said at the hearing that Kern-Fuller didn't acknowledgeconflicts of interest stemming from her involvement withinvestors and veterans. He also said that she provided investors with inadequate risk disclosures thathe described as "gibberish" and a "travesty."

Jamie Burgess, a staff attorney for the commission's securities division, saidKern-Fuller failed to let investors know that thecompanies involved in thetransactions had been barred from doing businessin eight states. She also neglected to mention that it is illegal to buy and sell veterans' disability benefits and pensions, he said.

"The investment documents failed to disclose this is the elephant in the room that federal law prohibits these transactions," Burgess said.

And the paperwork provided to investors was "highly deceptive, misleadingand fraudulent," Burgess said.

Kern-Fuller's attorneyRobert Zelmssaid at the hearing, "This is not a legal malpractice case; this isnot an ethics case... Upstate Law Group, Candy Kern-Fuller did not create these products and transactions that are in question; they did not promote them; they did not market them; they did not sell them. They were involved in the preparation of the closing documents."

An expert witness for Kern-Fuller, William Higgins an attorney whoserveson professional-responsibility and ethics-advisory committees for the South Carolina Bar said, "I fear that Professor Freeman and his report was frankly designed to just make Ms. Kern-Fuller and Upstate Law Group look bad."

A ruling in the case is expected to come next year.

Burgess said Kern-Fuller and her law firm are part of a larger enterprise that includes Arkansas businessman Andrew Gamber and at least two other companies.

In April, the Arizona Corporation Commission issued a cease-and-desist orderthat requires Gamber, 39, BAIC Inc. and SoBell Corp. to repay nearly $2.7 million from 53 transactions involving military benefits completed from 2013 to 2015 in the state.

Dozens of the transactions fell apart when veterans stopped making monthly payments from their military pensionsas arranged.

The involvement of veterans was part of what attracted many investors in the first place, records show.

In her testimony, investor Carolyn Blythe Strong said her father was in the U.S. Coast Guard and served during World War II.

"And so, for me, I have a really soft spot in my heart for veterans... and helping them, particularly with their retirement, was a plus to me," she said.

Other investors who lost money included a retired nurse who was forced to take a minimum-wagejob and a retired Arizona state judge.

"Instead of modest, steady, safe retirement income, the investors got wreckage," Burgess said. "They have lost large portions of their life savings."

- Gabe Cavallaro, Mike Ellis,Ariel Gilreath,Conor Hughes,Nikie Mayo, Anna Mitchell and Haley Walters contributed to this report.

Coming soon:A 12-month investigation by The Greenville News details through court documents and exclusive interviews how investment brokers specifically targeted often-vulnerable veterans by offering cash in exchange for military benefits, often leaving both the veterans and investors in worse financial straits.

Billion-dollar 'Ponzi scheme': Marshals capture Scott Kohn, accused in Greenville of preying on veterans and investors

Read or Share this story: https://www.greenvilleonline.com/story/news/local/south-carolina/2019/09/27/sc-lawyer-accused-ethics-violations-bilked-investors-targeted-veterans/3780561002/

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Easley lawyer accused of ethical violations that targeted veterans and bilked investors - Greenville News

Young, 49, is on trial this week in the shooting death of 45-year-old Jose Mijares on Feb. 13, 2016.

Defense attorneys Rick and Matthew Spivey learned during testimony Wednesday that not only was a bullet recovered from a 2014 incident in which Young claimed Mijares fired a gun at him, but that the bullet was destroyed in 2015 after no charges were filed.

The night that incident occurred, Mijares told police he didnt have a weapon something his widow, Juana Mijares also testified to and it was at that point Young said he began carrying his own handgun more often because he was afraid of his neighbor.

Matthew Spivey renewed, once again, a motion to dismiss the murder charge against Young.

This renewed motion based on not only cumulative impact of some of the actions in this trial that weve moved for a mistrial on, but also on information that surfaced Wednesday, including photographs of Youngs truck that he claimed had been shot at.

The first time we ever saw those photographs was about an hour ago, and I noticed photographs on the witness podium and they were of Mr. Youngs truck, Matthew Spivey said. State counsel responded the reason they were not produced was because they were rebuttal. I moved for a sanction against the state.Those are actually veryexculpatory in nature and support Mr. Youngs statements to the police throughout the process. In further support of that ... there are pages missing from those photographs .... it is a multi-dated report.

The shooting

Police responded to the corner of North Roan and Lambeth on Feb. 13, 2016, after Mijares teenage son waved down a passing motorist for help. The teen said he had witnessed Young shoot his father.

The youth told police he and his father were on their way for coffee at a nearby market when a green vehicle pulled out from Youngs driveway and pulled up close to his fathers vehicle as they drove from their residence on Lambeth Court toward North Roan. At some point, the green vehicle, later determined to be driven by Young, went around Mijares and pulled in front of him.

When both vehicles stopped at the stop sign at Lambeth Drive and North Roan, Jose Mijares got out of the vehicle and approached the car ahead of them. The teen said his father was going to talk to the driver about why he had cut in front of them.

The teenager told police he didnt hear his father say anything but saw the man in the green truck shoot his father. Mijares was shot in the chest and later died from his injury.

Mijares and his son Jesus, now 18, were headed to a convenience store for gas and coffee on a bitterly cold winter morning. The young Mijares testified that a green truck, known to him to belong to Young, came barreling up behind their SUV and cut in front of them and stopped at the intersection of Lambeth Drive and North Roan Street.

Youngs testimony

Young testified that he had pulled out behind Mijares that February morning and it appeared Mijares was turning left off of Lambeth Drive, so Young went around him. At the stop sign of Lambeth and North Roan Street, Mijares got out of his vehicle and began to approach Young.

Young, who said hed been afraid of Mijares since the 2014 gunfire incident, said he rolled down his window, grabbed his handgun and yelled several times for Mijares to stop. He said he even warned Mijares he had a gun and would shoot.

Young said that after Mijares swatted at him through the open window, Young leaned back and fired one shot.

Motion to dismiss

The cumulative impact of what the state has done in the case is violated due process of the United States Constitutions Fifth Amendment that applies to the state of Tennessee through the Fourteenth Amendment, Matthew Spivey.I just dont understand whats going on in this case. Its something new with every witness.

He had asked for a dismissal on Tuesday afterlead investigator Joe Jaynes took the stand. As he was answering questions from Assistant District Attorney Robin Ray, she asked if he had contact with Young at the police department.

Jaynes answer sent the Spiveys to their feet to object. Rice sent the jury out, and for about two hours court personnel worked on technical issues retrieving the exchange between Jaynes and Ray. The answer he started giving indicated he went into an interview room where Young was and read the Miranda rights to him and attempted to talk to Young.

That, the Spiveys argued, was a violation of Youngs Fifth Amendment right to remain silent something the jury is not entitled to know unless Young takes the stand. The defense argued the state intentionally elicited the testimony from Jaynes to taint the jury because Young did not give a statement. Ray said she asked the question to establish why Jaynes was not interviewing other witnesses at the time.

Whatever the reason was, Rice said it was absolutely inappropriate for the jury to hear that testimony.

The judge has not ruled on this most recent revelation of documents the defense just received. She said she would review all the arguments from the defense and state and research case law on which to base her ruling on the defense motion to dismiss.

There could still be more rebuttal testimony Thursday, but the case will likely land in the hands of the jury for deliberation. If convicted of first-degree murder, Young faces life in prison. He remains free on a $100,000 bond while the case is pending.

The rest is here:

Murder trial still in upheaval over more documents not turned over to defense - Johnson City Press (subscription)

In what was scheduled to be a two-week jury trial, a 30-year-old Danville man avoided a possible death penalty by permitting a Danville judge to preside over a double homicide case Monday.

In a trial lasting about six hours, Danville Circuit Court Judge James J. Reynolds found Dana Miguel Keith guilty in the 2017 shooting deaths of Breai Martonia Edmunds, 21, and 20-year-old Damarcus Daron Whitehead.

Keith, 30, was convicted Monday on three counts of capital murder, four counts of use of a firearm in commission of a felony and two counts of robbery in connection to the slayings. The three capital counts encompass one for two or more people and two counts of capital murder in a robbery.

Edmunds and Whitehead were found dead inside a car at the intersection of Arnett Boulevard and Glendale Avenue on the evening of June 1, 2017. Keith was arrested by police in October 2017.

Two weeks originally were set aside for a jury trial on the capital charges, which could have included the possibility of the death penalty.

He waived the right to jury, and we waived death, Danville Commonwealths Attorney Michael Newman said.

The commonwealths decision to waive the death penalty was not a plea deal, said Bo Palmore, an assistant commonwealth attorney at the Danville office.

Its just a way to expedite things, he said Tuesday.

During the trial, details emerged surrounding the events before the deadly shootings. According to the commonwealth attorneys office, Keith, Edmunds and Whitehead were all at a party at Woodside Apartments. Keith left with a group to pick up beer at a nearby Sunrise gas station on North Main Street, according to a summary of evidence. Afterward, Keith was dropped back off at Woodside with two others.

The commonwealth also discovered Keith had a personal grudge against Whitehead.

A witness testified that Mr. Keith did not like the male victim, Palmore said. All four witnesses in the car testified that Keith said he was going to get Mr. Whitehead.

During the trial, the commonwealth presented 19 witnesses and 14 exhibits of evidence. The defense presented nothing, including Keith.

Mr. Keith exercised his fifth amendment right not to testify, said Marvin Lee Smallwood Jr., a local attorney on Keiths defense team.

After Whitehead was shot, his gold chain was snatched from his neck, the commonwealth contented. Edmunds iPhone 7 was taken out of her pocketbook along with her gold necklace. Danville police later found these items at the home of one of Keiths associates.

Of the 19 witnesses brought by the commonwealth, two claimed they heard Keith confess to the shooting deaths, according to the Danville Commonwealths Attorney Office. One individual testified Keith killed Edmunds because she was a witness. Some of the witnesses in the car with Keith also testified he attempted to obtain a gun before he was dropped off at Woodside.

The commonwealth presented video evidence from both the apartment and the gas station. In addition, they produced evidence showing an iPhone and gold chains stolen from the victims were in possession of an associate of Keiths.

Keith is scheduled to be sentenced Oct. 29.

Avent is a reporter with the Danville Register & Bee. Reach him at (434) 797-7983.

Avent is a reporter with the Danville Register & Bee. Reach him at (434) 797-7983.

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Danville man guilty in 2017 double slaying; by waiving right to jury trial, 30-year-old avoids possible death penalty - GoDanRiver.com

Its happening: On Tuesday, House Speaker Nancy Pelosi announced the launch of a formal impeachment inquiry into President Donald Trump following reports last week that Trump attempted to bully Ukrainian President Volodymyr Zelensky into investigating former vice president and Democratic presidential frontrunner Joe Bidens son.

But the process for impeaching a president is neither quick nor easy. And its potentially riskyPelosi has agonized over what would happen if the House didnt have enough votes to start an impeachment inquirywhich is why the speaker and other House leaders have refused to move forward with impeachment proceedings despite a growing consensus among the House Democratic Caucus. Pelosis statement on Tuesday suggests weve reached a tipping point on the issue for House Democrats.

The impeachment of a president has only happened twiceto Andrew Johnson in the aftermath of the Civil War, and Bill Clinton for lying about and trying to cover up his sexual relationship with White House intern Monica Lewinsky. (Articles of impeachment were brought up against Richard Nixon in 1974 in response to the Watergate scandal, but he resigned before he was formally impeached.)

And with the 2020 election not far away, we are wading into relatively uncharted territory. So what happens next? What would the impeachment process look like? What would it take to actually have Trump removed from office? And what does this mean for all the ongoing House investigations into the many Trump scandals?

To get a better sense of what could be in store, I spoke with Michael Conway, anattorney who served as counsel for the US House Judiciary Committee in the impeachment inquiry of Nixon in 1974.

What is needed for the impeachment inquiry to begin? Will there be a vote?

Theres disagreement about whether you need a vote of the entire House. But, historically, the answer to that is yes. And thats both in the Nixon impeachment and the Clinton impeachment. In the Nixon impeachment, the House voted 410-4 to start an impeachment inquiry, which I think underscores the fact that it was less politicized, but it also underscores the fact that starting an impeachment inquiry is not the equivalent of voting for impeachment. In fact, many Republicans who supported President Nixon voted to start an impeachment inquiry. And I think thats going to be a continuing issue. But the traditional test has been a vote of the House. And if they did that theyd be on much more solid ground.

How have impeachment inquiries typically gone in the past? What was the process like when you served on the House impeachment inquiry committee for Nixon?

Traditionally, its gone to the House Judiciary Committee, but theres no absolute requirement to do that. The House Judiciary Committee has done a little bit of this. For example, in Nixons case, the Committee set up a brand new independent inquiry staff, headed by John Doar as special counselthats the staff I served oninstead of using their already pre-existing staff members. And part of that was because the Judiciary Committee has a lot of responsibilities in addition to impeachment. And so setting aside a group whose sole function was to investigate the grounds for impeachment was what happened there.

And in that case, the Committee got reports from our staff over time, but essentially the staff did an investigationin large part based upon what the Senate Committee had done before and what the Grand Jury had sent usand then presented the evidence to the Committee.

And how did the House decide on the articles of impeachment based on the reports you sent the Committee? How would it work for this impeachment inquiry?

The Committee heard a few witnesses, but not a tremendous number and not in public sessions, and then the Committee debated the articles of impeachment, which were actually rewritten once the evidence came in. In other words, every article that is authored by congressmen right now dont have to be the articles voted on, the articles voted on can be conformed to whatever the evidence happens to be. So that would be the process that has worked before. Now, theres no requirement to follow that process, but thats the template.

Listen to Mother Jones Washington Bureau Chief David Corn explain what happens next, in this special impeachment edition of the Mother Jones Podcast:

What additional powers do House Democrats get by declaring a formal inquiry? Would they finally get access to some of those long-sought after documents, like Trumps tax returns? Or witnesses who havent agreed to testify on obstruction, or other inquiries?

Yes, to a larger extent. A witness can always plead the Fifth Amendment, but for political reasons people dont always want to do that. For example, Grand Jury material is typically secret, but there are few exceptions to when the court can release them. In the Nixon impeachment, the Grand Jury sent us the report and sent us some White House tapes that they had obtained. The judge, [former District judge John] Sirica, ruled that he had the authority to do that. That went up on appeal to the DC Circuit Court of Appeals. And this is a critical point: It ruled that he had the authority to do that.

In April of this year, the DC Circuit, in a 2-1 vote where a historian was trying to obtain Grand Jury material, ruled that the court lacked the authority to release the Grand Jury material. And when the dissenting judge said, Well, what about the Haldeman Case? He said, Well thats an impeachment. And so, the fact that its a formal impeachment would very much strengthen the Committee to get Grand Jury material, the same thing for compelling witnesses to testify overruling executive privilege and so forth. So, that would be an important legal step forward to strengthen the Committees ability to get information.

That could take a long time, though, right? And the Democrats seem to want to move quickly on this.

It takes a long time for the court, yeah. For example, the hearing on the Grand Jury release isnt scheduled until Halloween. So I dont think there would be a ruling on thateven if the Judge had it all certain, even if the Judge ruled on the actual day of the hearingyoure talking about five or six weeks from now. But Congress has the ability to hold people in contempt. They dont have to go to court. Congress itself has the power to compel, and if theyre stonewalled by the White House that actually is considered an interference with the investigation, which is in itself an impeachable offense. When President Nixon refused to comply with subpoenas and so forth, he was obstructing an impeachment investigation, which then becomes an impeachable offense. And its also a criminal offense.

There are already investigations into Trumps obstruction of justice, so would those hearings be rolled into an impeachment investigation?

It could be. Ill give you a historical example: In Nixons case, there were five articles of impeachment that were presented to the Committee for vote. Three were adopted and two were rejected. One of the rejected ones was about illegal bombing of Cambodia during the Vietnam War. The other one was whether Nixon violated the emoluments clause and committed tax fraud. But the problem that the Committees have from a public opinion point of view is being sufficiently focused so that it doesnt look like its a cafeteria-style impeachment; one of these and one of those. They need to focus and the Ukraine thing may be what becomes that focus.

Even with the House officially opening an impeachment inquiry and, lets say the House ends up voting for impeachment, would this all be moot if Mitch McConnell refused to hold a trial?

He cant refuse. If the House voted impeachment and set the resolutions, the Senate is supposed to set aside all other business and consider the impeachment. Thats what happened in Clintons case. Of course in Nixons case, he resigned before even the full House vote, before the Committee voted. Now, they can certainly vote down the impeachment, but there is no ability like there was with the judicial nominations to simply not call it up for consideration. It has to be called up.

If the Senate votes down impeachment, then its dead in the water?

Yes. But there have been lots of impeachments where the Senate has acquitted peopleBill Clinton is the example that comes to mind. Historically, the Secretary of War back in the 1870s was impeached. He resigned and then the Senate had the trial. They ended up acquitting him, but they had the impeachment. And, of course, the fact that hes not actually removed from office doesnt mean that the public isnt then better informed about what the charges were presented against them. Same thing with Bill Clinton. Now, Bill Clinton was not convicted, but certainly the public got a better educational message about what was alleged to have happened. So, theres a value in educating the public even if the Senate doesnt vote to remove him. An impeachment is a charge, the trial is the center, the trial itself would be must-see TV, thats for sure.

What would Chief Justice John Roberts role actually be when hes presiding over an impeachment trial? Is it largely ceremonial, or does he make actual decisions that matter?

He would preside over the Senate trial, but when Chief Justice Rehnquist presided over the Clinton trial, he viewed himself as being largely ceremonial. For example, in a trial, a judge can rule whether evidence is admissible or not. But in the Senate, if there were some objection to admissibility of evidence, the Senate would vote on the objection. So, the judge in an impeachment trial doesnt have the normal authority that a judge has in presiding over a regular trial and making rulings. The judge is simply the person whos presiding over the proceeding but doesnt really have the authority to make rulings in the proceedings.

What is the Department of Justices role in impeachment? What will William Barr do?

Nothing. They have no role. An impeachment is strictly a Congressional prerogative. If theres a trial in the Senate, the House then elects the prosecutors, who could beand typically have beenalso House members, but they can be assisted by attorneys representing them. In the Nixon impeachment inquiry, and also in conformity with the rules that were adopted recently by the House Judiciary Committee, the presidents personal lawyer can participate and defend. In our circumstance, James St. Clair was Nixons personal lawyer, he was able to present evidence to the Committee, make arguments to the Judiciary Committee and so forth. So, its not as if the president is defenseless, but the Justice Department has no role whatsoever.

Read the original here:

A Formal Impeachment Investigation Is Underway. Now What? - Mother Jones

WASHINGTON Following two mass shootings in Texas in August, some Democrats have ramped up demands for a ban on assault-style weapons, including federal confiscation.

Few advocates on either side of the debate over gun violence and Second Amendment rights see mandatory buybacks becoming law in the foreseeable future.

Only a handful of 2020 Democratic candidates have embraced the idea, most notably Beto O'Rourke. The former El Paso congressman's hometown was the site of one of those rampages, and he declared memorably at a presidential debate in Houston that "Hell yes, we are going to take your AR-15, your AK-47."

Given the legal obstacles and political resistance, many of his rivals for the nomination view the idea as counterproductive, as do many gun control advocates, not to mention Republicans.

How exactly could the government collect the 15 million to 20 million assault-style firearms lawfully owned by Americans?

We tried to find out.

Thats a tricky question, because theres no single definition of an assault weapon, and the U.S. government doesnt track gun ownership with a national registry.

One of the most cited estimates, from the National Shooting Sports Foundation, puts the number of assault-style weapons in the United States at 15 to 20 million. But weapons used by law enforcement account for about half of that.

In 2013, a few months after the Sandy Hook Elementary School massacre in Newtown, Conn., left 26 people dead, all but six of them children, Sen. Ted Cruz accused Democrats of vaguely trying to ban scary-looking guns. He noted that minor modifications that had little effect on a guns capabilities could determine whether it was legal or not under their proposals.

A current proposal from Rep. David Cicilline, D-R.I., that enjoys broad support from House Democrats would ban any semi-automatic firearm with a detachable magazine and at least one other feature such as a second grip for better aim, a rack to mount additional accessories or different types of muzzles. The bill, which is what O'Rourke would rely on for his buyback plan, also would ban rifles with a fixed magazine that holds more than 10 rounds, and more than 200 specific models of weapons.

Congress used a slightly narrower definition in the 1994 assault weapons ban, which expired after a decade.

Semi-automatic weapons with a fixed magazine that held more than 10 rounds remained legal, for instance. The 1994 ban applied to certain specified guns, and guns with a detachable magazine and at least two other features such as a second grip, a rack to mount additional accessories or different types of barrels and suppressors.

That depends.

ORourke hasnt said exactly how much owners should be compensated. He would establish a commission, using market values as a benchmark, and would fund the program through a tax on gun manufacturers.

Local and statewide voluntary buybacks around the country have used $200 gift cards for handguns, rifles and other firearms. Rep. Eric Swalwell, D-Calif., who recently dropped out of the 2020 presidential race, proposed looking at the previous years market price for each weapon, and paying the owner the median value.

The average asking price for assault weapons is $800, according to The Trace.

If there are 10 million civilian-owned assault weapons, and theyre all turned in under that approach, the cost to U.S. taxpayers would be $8 billion.

Congress would have to ban ownership of particular weapons, and that law would have to survive a certain veto from President Donald Trump.

Under Swalwells bill, the only pending legislation of this sort, the Bureau of Alcohol, Tobacco, Firearms and Explosives would have three months to publish prices the government will pay, and a year to execute the program.

Confiscated weapons and accessorieswould be destroyed, unless they are evidence in an ongoing criminal investigation. And if owners dont fully comply? Up to five years in prison could await anyone caught with an illegal assault weapon.

In Texas, Houston-area state Rep. Briscoe Cain warned O'Rourke with a veiled threat of violence that he would refuse any effort to seize his AR-15. O'Rourke says he believes that mostlaw-abiding Americans would comply with federal law, and fines unspecified await those who don't.

A mandatory buyback has never been attempted.

Even when bans have been enacted, like the 1994 assault weapons ban, existing guns were grandfathered. Only importation and new manufacturing were halted.

Voluntary buybacks have taken place for decades, though never at the federal level.

A Baltimore program in 1974 is believed to be the first in the country. Police collected 13,500 guns at the cost of $660,000. Voluntary gun buybacks have taken place since then in California, Washington state, Massachusetts and elsewhere.

Such programs rarely get the most dangerous firearms off the streets, said Michael Scott, the director of the Center for Problem-Oriented Policing. And because the programs are localized, he noted, weapons can easily flow back into cities from surrounding areas.

Australia implemented a mandatory buyback in 1996 after banning semi-automatic rifles and pump shotguns and rifles following the 1996 Port Arthur Massacre, which left 35 people dead.

The countrys constitution delegates gun control to Australian states. Just 12 days after the Port Arthur massacre, the states all agreed to uniform standards for an assault weapon ban and buyback, called the National Firearms Agreement.

Gun owners were paid market value, and the national government funded the buyback through a 2% tax.

New Zealand is the latest country to try a mandatory gun buyback, following attacks by a white supremacist last March at two mosques in Christchurch that left 51 people dead.

Less than a month later, parliament voted 119-1 to ban semiautomatic weapons and implement the buyback.

New Zealand set aside about $129 million and is paying 25% to 95% of market value, depending on the condition of each gun turned in. The six-month program runs through Dec. 20.

Neither country guarantees its citizens the right to own a firearm. In both countries, gun ownership is treated as a privilege rather than a constitutionally protected right as in the United States.

Neither tracked most gun sales before the bans went into effect, making it difficult to know how many civilian-owned firearms were in circulation.

Australia collected more than 650,000 guns, or an estimated20% of thefirearms privately owned by just over 18 million Australians at the time, according to a Harvard study. The country has seen a steep decline in homicides and suicides involving guns, and in mass shootings, since the ban and buyback.

According to Philip Alpers, founder of a group that studies gun violence worldwide and an adjunct faculty member at the University of Sydney, the 650,000 firearms turned in represented more than 80% of the newly-banned assault weapons.

And most Australians were happy to comply following the shock of the Port Arthur massacre, he said.

And it is almost impossible to get a banned firearm in Australia now. Being an island nation makes smuggling harder and amplifies the effect of a mandatory buyback.

You would have to have serious criminal, black market connections to get your hands on one of those weapons, Alpers said.

In New Zealand, a country of 4.8 million people, residents owned more than 100,000 assault weapons before the ban, according to GunPolicy.org. With two months left in the buyback program, more than 15,000 banned firearms and 64,000 parts have been collected, costing more than $20 million.

With no national gun registry, its difficult to gauge the level of compliance.

The Mongrel Mob and other gangs said after the massacre that they would refuse to turn in their weapons, according to New Zealand news outlet Stuff.

On the other hand, hundreds of assault weapons were voluntarily surrendered to the government before the ban even passed.

The legality of a mandatory buyback in the U.S. is arguable.

Gun rights advocates and some legal scholars say it would violate the Second Amendment and another constitutional provision, in the Fifth Amendment, that protects private property from seizure without due process and compensation.

Others, O'Rourke included, argue that the right to bear arms isnt unlimited. Civilians arent allowed to own nuclear weapons, for instance.

On the political side, a mandatory assault weapon buyback has substantial but mixed support.

A recent Washington Post/ABC News poll found 52% of Americans in favor and 44% opposed, with a stark partisan divide: 74% of Democrats support confiscation, versus 33% of Republicans.

In the Democratic-controlled House, just three lawmakers have signed onto Swalwells bill creating a mandatory buyback program.

America doesnt have a prayer of doing what Australia did, Alpers said. What happened in Australia amounts to confiscation of private property under the threat of jail time. Thats not the American way."

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Could Beto O'Rourke really take your guns? If government attempts a buyback, here's how it would work - The Dallas Morning News

Fifth Amendment, amendment (1791) to the Constitution of the United States, part of the Bill of Rights, that articulates procedural safeguards designed to protect the rights of the criminally accused and to secure life, liberty, and property. For the text of the Fifth Amendment, see below.

Similar to the First Amendment, the Fifth Amendment is divided into five clauses, representing five distinct, yet related, rights. The first clause specifies that [n]o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces or in the Militia, when in actual service in time of War or public danger. This grand jury provision requires a body to make a formal presentment or indictment of a person accused of committing a crime against the laws of the federal government. The proceeding is not a trial but rather an ex parte hearing (i.e., one in which only one party, the prosecution, presents evidence) to determine if the government has enough evidence to carry a case to trial. If the grand jury finds sufficient evidence that an offense was committed, it issues an indictment, which then permits a trial. The portion of the clause pertaining to exceptions in cases arising in the land or naval forces, or in the Militia is a corollary to Article I, Section 8, which grants Congress the power [t]o make Rules for the Government and Regulation of the land and naval Forces. Combined, they justify the use of military courts for the armed forces, thus denying military personnel the same procedural rights afforded civilians.

The second section is commonly referred to as the double jeopardy clause, and it protects citizens against a second prosecution after an acquittal or a conviction, as well as against multiple punishments for the same offense. Caveats to this provision include permissions to try persons for civil and criminal aspects of an offense, conspiring to commit as well as to commit an offense, and separate trials for acts that violate laws of both the federal and state governments, although federal laws generally suppress prosecution by the national government if a person is convicted of the same crime in a state proceeding.

The third section is commonly referred to as the self-incrimination clause, and it protects persons accused of committing a crime from being forced to testify against themselves. In the U.S. judicial system a person is presumed innocent, and it is the responsibility of the state (or national government) to prove guilt. Like other pieces of evidence, once presented, words can be used powerfully against a person; however, words can be manipulated in a way that many other objects cannot. Consequently, information gained from sobriety tests, police lineups, voice samples, and the like is constitutionally permissible while evidence gained from compelled testimony is not. As such, persons accused of committing crimes are protected against themselves or, more accurately, how their words may be used against them. The clause, therefore, protects a key aspect of the system as well as the rights of the criminally accused.

The fourth section is commonly referred to as the due process clause. It protects life, liberty, and property from impairment by the federal government. (The Fourteenth Amendment, ratified in 1868, protects the same rights from infringement by the states.) Chiefly concerned with fairness and justice, the due process clause seeks to preserve and protect fundamental rights and ensure that any deprivation of life, liberty, or property occurs in accordance with procedural safeguards. As such, there are both substantive and procedural considerations associated with the due process clause, and this has influenced the development of two separate tracks of due process jurisprudence: procedural and substantive. Procedural due process pertains to the rules, elements, or methods of enforcementthat is, its procedural aspects. Consider the elements of a fair trial and related Sixth Amendment protections. As long as all relevant rights of the accused are adequately protectedas long as the rules of the game, so to speak, are followedthen the government may, in fact, deprive a person of his life, liberty, or property. But what if the rules are not fair? What if the law itselfregardless of how it is enforcedseemingly deprives rights? This raises the controversial spectre of substantive due process rights. It is not inconceivable that the content of the law, regardless of how it is enforced, is itself repugnant to the Constitution because it violates fundamental rights. Over time, the Supreme Court has had an on-again, off-again relationship with liberty-based due process challenges, but it has generally abided by the principle that certain rights are implicit in the concept of ordered liberty (Palko v. Connecticut [1937]), and as such they are afforded constitutional protection. This, in turn, has led to the expansion of the meaning of the term liberty. What arguably began as freedom from restraint has transformed into a virtual cornucopia of rights reasonably related to enumerated rights, without which neither liberty nor justice would exist. For example, the right to an abortion, established in Roe v. Wade (1973), grew from privacy rights, which emerged from the penumbras of the constitution.

The Fifth Amendment mentions property twice once in the due process clause and again as the amendments entire final clause, commonly known as the takings clause. The common denominator of property rights is the concept of fairness that applies to the authority of the federal government to acquire private property. At the time of ratification, property determined wealth and status. It entitled a person to participate in politics and government. It was cherished and keenly protected. Despite this, it was understood that individual rights must sometimes yield to societal rights and that representative governments must accordingly provide the greatest good for the greatest number. The growth and development of the United States ultimately would bring challenges to existing property lines, and it was necessary for an amendment to provide rules governing the acquisition of property. As such, the takings clause empowers the government to exercise eminent domain in order to take private property; however, such takings must be for public use and provide adequate compensation to landowners. Throughout most of American history this balance of individual and societal rights hinged on the governments fidelity to the cornerstone principles of public use and just compensation, and in many respects it still does. However, in 2005 Kelo v. City of New London brought a new twist to takings clause jurisprudence. Whereas prior to the Kelo ruling, the government would acquire property for public use directly, in the Kelo case the Supreme Court upheld the use of eminent domain to take private property for commercial development that was assumed to indirectly provide a positive impact for the public.

The full text of the amendment is:

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

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Fifth Amendment | United States Constitution | Britannica.com

Twenty-fifth Amendment, amendment (1967) to the Constitution of the United States that set forth succession rules relating to vacancies and disabilities of the office of the president and of the vice president. It was proposed by the U.S. Congress on July 6, 1965, and it was ratified on Feb. 10, 1967.

While the first section of the Twenty-fifth Amendment codified the traditionally observed process of succession in the event of the death of the presidentthat the vice president would succeed to the officeit also introduced a change regarding the ascent of the vice president to president should the latter resign from office. In the event of resignation, the vice president would assume the title and position of presidentnot acting presidenteffectively prohibiting the departing president from returning to office.

The second section of the amendment addresses vacancies in the office of the vice president. Traditionally, when the office of vice president was vacant, usually through the vice presidents succession to the presidency following the death of the president, the office of vice president stood vacant until the next election. Through the Twenty-fifth Amendment, the president would nominate a vice president, who would be subject to confirmation by the U.S. Congress. Only a few years after the amendments ratification, this section was put into effect. In 1973 Spiro Agnew resigned as Pres. Richard M. Nixons vice president, and Nixon subsequently selected Gerald R. Ford, who was then serving as minority leader in the House of Representatives, to serve as vice president. Despite the fact that Nixon and Ford were Republicans and the Democrats retained majorities in both the House and the Senate, Ford was easily confirmed, which indicated that the process would focus less on policy positions than a general fitness for office. Ford assumed the duties of vice president on Dec. 6, 1973, and upon Nixons resignation from office to avoid impeachment, Ford became the first president to accede to office according to the Twenty-fifth Amendment on Aug. 9, 1974. Had the Twenty-fifth Amendment not been in effect, Nixon would not have been able to replace Agnew, and it remains speculative whether Nixon would have resigned prior to impeachment and a trial and thus enabled the Democratic speaker of the House of Representatives to become president under the Presidential Succession Act of 1947.

The third section of the amendment set forth the formal process for determining the capacity of the president to discharge the powers and duties of office. It assumes that the president has the presence of mind and physical ability to produce a written statement formally notifying the president pro tempore of the Senate and the speaker of the House of such circumstances, which would result in the vice presidents temporarily serving as acting president. In the event that a president may be unable to declare his inability to discharge the powers and duties of office, the fourth section of the amendment requires such determinations to be made jointly by the vice president and the cabinet, with the vice president immediately assuming the position of acting president.

Prior to the passage of the amendment, nine presidentsWilliam Henry Harrison, Zachary Taylor, Abraham Lincoln, James Garfield, William McKinley, Woodrow Wilson, Warren G. Harding, Franklin D. Roosevelt, and Dwight D. Eisenhowerexperienced health crises that left them temporarily incapacitated, with death resulting in six cases (Harrison, Taylor, Lincoln, Garfield, McKinley, and Harding). After the passage of the amendment, Pres. Ronald Reagan was incapacitated for some 24 hours while undergoing surgery for a gunshot wound resulting from a failed assassination attempt, though no official designation of presidential responsibility was ever made. Indeed, this portion of the Twenty-fifth Amendment has never been invoked.

The full text of the amendment is:

Section 1In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.

Section 2Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.

Section 3Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.

Section 4Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.

Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.

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Twenty-fifth Amendment | United States Constitution ...