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

Photo by Jeff Swensen/Getty Images

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Original post:

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

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

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

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

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

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

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

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

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

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

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

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

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

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The US Government's Secret War on the KKK Involved the FBI, Fidel Castro and Lots of Dirty Tricks - Newsweek

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

What is a grand jury and what is its job?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Why would Mueller open up a new grand jury?

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

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

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

Theres a number of other theories for Muellers move.

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

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

Does the new grand jury mean an indictment is near?

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

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

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

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

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

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

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

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

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

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

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

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

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

Share the Facts

2017-08-10 15:47:15 UTC

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Correct about grand juries

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

Adam Schiff

U.S. Rep, D-Calif.

CNN

Sunday, August 6, 2017

2017-08-06

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

A group of City Council members wants to add some money for community service programs to Mayor Jean Stotherts proposed 2018 budget.

Theyve proposed four amendments to add money to such programs, plus a fifth amendment that would beef up the city clerks budget after the council approved some increases to the offices salary ranges.

The amendments would make less than $100,000 worth of changes to a $900 million city budget.

If the amendments are approved, the following programs budgets would increase:

The Metropolitan Area Planning Agency would receive an additional $10,000, for a total of $20,000.

MAPA executive director Greg Youell asked the council to increase its funding to $40,000.

Council President Ben Gray proposed the amendment.

The Police Athletics for Community Engagement would receive an additional $10,000, under an amendment proposed by Gray, Pete Festersen and Vinny Palermo.

Stothert had proposed funding of $25,000, up from $20,000 in 2017.

The ReConnect program, which provides job training and other services to young people transitioning from prison, would receive another $10,000 for a total of $55,000, under an amendment from Gray and Council Vice President Chris Jerram.

Gray and Jerram also want to add $20,000 for the Heartland Workforce Solutions job training program.

Council members had asked for about $1 million in funding; Stothert proposed $500,000, up from $440,000 in 2017.

All of the money would be moved from the mayors proposed allocation to citys reserve funds.

The council is scheduled to vote on the budget Aug. 22. Tuesday is the deadline for council members to submit amendments.

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Omaha City Council members look to boost funding for community service programs in Stothert's proposed budget - Omaha World-Herald

(Jenny Starrs/The Washington Post)

Five active-duty service members sued President Trump Wednesday over his intentions to ban transgender personnel from serving in the military.

The directive to reinstate a ban on open service by transgender people violates both the Equal Protection component of the Fifth Amendment and the Due Process Clause of the Fifth Amendment to the United States Constitution, states the suit filed in U.S. District Court in Washington by five anonymous Jane Does.

They are represented by the National Center for Lesbian Rights (NCLR) and GLBTQ Legal Advocates & Defenders (GLAD).

Trump announced in a series of tweets on July 26 that the United States Government will not accept or allow transgender individuals to serve in any capacity in the U.S. Military.

[Trump announces ban on transgender service members ]

(Jenny Starrs/The Washington Post)

The military has not issued a policy on how that directive would be carried out. The suit states that upon information and belief, the White House turned [Trumps] decision into official guidance, approved by the White House counsels office, to be communicated to the Department of Defense.

Since the Obama administration lifted the ban on transgender troops in June 2016, hundreds of service members have come out and are serving openly. A Rand Corp. study commissioned by the Pentagon last year estimates that there are about 11,000 transgender troops in the reserves and active-duty military.

All five of the plaintiffs said they relied on the 2016 policy change when they notified commanding officers they were transgender. Besides the constitutional challenges, they ask the court to find Trumps intentions would be a violation of the promises government has made to members of the military.

Because they identified themselves as transgender in reliance on defendants earlier promise, plaintiffs have lost the stability and certainty they had in their careers and benefits, including post-military and retirement benefits that depend on the length of their service, the suit states.

The suit is expected to be the first of several filed once the ban is officially issued.

The plaintiffs are a Coast Guard member who has written a prospective letter of resignation; an Air Force active-duty service member of nearly 20 years who served twice in Iraq; and three Army soldiers.

In a news release, one plaintiff says: My experience has been positive and I am prouder than ever to continue to serve. I am married and have three children, and the military has been my life. But now, Im worried about my familys future.

Read more:

Active-duty military members sue Trump over transgender ban - Washington Post

If someone asked me to rap for them, I would always be ready to drop a quick verse. I would never respond that I was too shy; I was prepared to spit a verse on command, explains Nicky Ds, one of Fifth Amendment and Blood Money Entertainments newest artists.

Fifth Amendment Entertainment manages rap icon The Game, as well as other notable artists such as Ray J and DJ Kay Slay. A native of Moreno Valley, California, Nicky Ds is an Irish kid who started rapping at the age of 8. He attributes Cash Wack100 Jones (Fifth Amendments CEO) and Stanley Stat Quo Benton as the pieces that were always missing for him: I was tired of people making me feel like what I was already doing wasnt enough. With Wack, I felt like I never had to sell myself, and he was always bringing me opportunities.

Nicky Ds got his start in the music business by working with his mentor Marcus Black. By working along side Black he was able to see how the process of putting out albums worked. In 2013, he launched his project an album titled The Grey Area from which he received some moderate success as well as a notable mention from XXL. After that, he began collaborating with legendary rapper The Game, whom he would eventually go on tour with, in both the USA and 12 other countries, including his homeland (Dublin, Ireland). I even got an opportunity to shoot a video in Dublin and click up with some of the local people that had a say, so salute to my guy Karl Mac, says Nicky Ds.

In 2015, after driving two-plus hours each way to Los Angeles to get to the studio during the week, Nicky Ds decided to make a permanent move to LA. At the time, he was still an independent artist, which meant he wasn't receiving a financial cushion from a label or management as he worked on developing as an artist. I was working a 9 - 5 at a Sprint store, and I still found ways to push my music out there. When I recognized customers whether they were an actor or producer I was ready with my elevator pitch, explains Nicky Ds.

Moving to LA was when I really found myself. I was putting in the kind of hours I never had before, and I was getting in the room with the people I needed to be around. Work smarter, not harder, and you never want an opportunity to walk out the door. If youre going to be around all the time, you have to be you. Its not a science; its art. I dont believe in luck, and I just felt like I was there for a reason. Theres a right place, right time, Nicky Ds says.

2017 has been a very busy but productive year for Nicky Ds. Teaming up with Stat Quo who Wack100 appointed as his A&R put new challenges in front of him. Where my rapping skills got me in the door, dealing with Stat Quo, who comes from Eminem & Dr. Dre's camp, placed me right back at the starting line. Whatever I initially did wasn't deep enough, and Stat gave me the guidance to find my inner thoughts that were trapped within, explains Nicky Ds.

Nicky Ds goes on to say that just this year alone hes worked with Scott Storch, Bongo By The Way, Foreign Teck from the Mekanics, Young Thug, and Lil Yachty, along with the legendary EVERLAST from The House of Pain.

Indeed, the bar is set high for Nicky D's, but he doesn't plan on letting that stop him: I've dropped a mixtape on Dat Piff called "The Fighting Irish" in May 2017, and currently have a hit single out titled "New Day," produced by Foreign Teck and featuring Young Thug and Lil Yachty. My EP titled "CLOVERS" is due to drop September 2017.

Nicky Ds is scheduled to open for Lil Yachty's Teenage Emotions Tour, which starts August 11th. Much appreciation to the Quality Control team, Yachty, and Coach K & "P. Being tied to Wack100, you never know what door he will open next. I just make sure I stay ready. He will call me at 2 a.m. with one task, then turn around and tell me I have to be at LAX at 2:30 a.m. and hang up the phone, giving me no time to argue about the task, says Nicky Ds.

I'm currently contracted to eOne Entertainment, which I'm very comfortable with. Alan Grunblatt (President) and Gabby Peluso (VP) listened to my music and believed in the vision that Wack100 put in front of them. Along with the rest of the team, including Dontay, Shadow, and Kathy, who oversee the radio department; Brendan Laezza, Marlisse Martinez, and Jamal Jimoh, who oversee the marketing department; and Kimberly She Boss Jones (President of Fifth Amendment) who makes sure all my business is in order I feel I'm off to a great start, explains Nicky Ds.

Nicky Ds leaves us with this advice for up-and-coming artists: Remember to develop genuine relationships with people and be a human, even if your number one priority is to promote your own agenda. The vibe you bring into the room is very important. Artists need that vibe to create, and that vibe cant be disrupted.

@memofiliz

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Be Ready to Push Play on Yourself: Advice from Hip Hop's Newest Mega Star - HuffPost

This article first appeared on the Just Security site.

On Wednesday news broke that at the end of last month, FBI agents searched one of Paul Manaforts homes for documents as part of the Russia collusion investigation, directed by special counsel Robert Mueller.

What is the significance of this news? And why didnt Mueller just obtain the documents by grand jury subpoena?

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Muellers use of a search warrant tells us that he was able to establish on the basis of evidence, and to the satisfaction of a United States Magistrate-Judge, that there was probable cause to believe that evidence of a specific crime or crimes existed in the location to be searched.

That standard is significantly higher than what is required to obtain a grand jury subpoena, which can be used to obtain any evidence that a grand jury (under the direction of a prosecutor) decides will be helpful to their investigation.

Muellers resort to a search warrant shows, therefore, that his investigation has advanced, has identified specific potential crimes, and is zeroing in on key evidence.

Paul Manafort, Donald Trump's former campaign chairman and chief strategist, leaves the Four Seasons Hotel after a meeting with Trump and Republican donors, June 9, 2016 in New York City. Drew Angerer/Getty

Since it was Manaforts house that was searched, it is likely that he is implicated in the crimes, but that is not necessarily the case.

Further, it should be clear that just because Mueller has now reached this stage in the investigation, it does not necessarily mean that Manafort or anybody else will be ultimately charged with crimes.

Now why did Mueller use a search warrant instead of a subpoena, particularly since Manaforts attorney says that they have been cooperating with the investigation all along?

I can think of four possible reasons for Muellers move (none of which are mutually exclusive).

First, Mueller and his staff may have decided that, despite the claims of cooperation from Manaforts lawyer, Manafort could not be trusted to provide all of the documents requested by subpoena.

If Muellers team thought that there was any risk that Manafort would hide or destroy documents, that would be a strong reason to proceed with a search warrant.

Second, there may have been a need to move quickly. If Mueller used a grand jury subpoena, he would have had to give Manafort a reasonable amount of time to comply, and that time might have been further prolonged if Manaforts lawyer challenged any aspect of the subpoena.

Mueller may have needed the documents quickly in order to identify other lines of inquiry or for purposes of witness interviews, and so may have decided that using a search warrant would be more expeditious.

Third, Mueller may have wanted to avoid any Fifth amendment objections to a grand jury subpoena.

Although recipients of grand jury subpoenas demanding documents ordinarily cannot resist on self-incrimination grounds, because the documents requested were not themselves compelled and therefore do not fall within the privilege, there are narrow situations when witnesses can claim that because the government is engaged in a fishing expedition, compliance with the subpoena requires a testimonial act by the witness which could be self-incriminating. (I wrote about this possibility here in detail in connection with Congressional subpoenas to Michael Flynn.)

While a search warrant does not simply permit a fishing expedition, as the government must describe with some particularity the documents it is seeking, it nonetheless forecloses the Fifth amendment objection that Manaforts lawyer might have mounted in response to a subpoena.

Finally, Muellers move may have been in part strategic. He may have wanted to get Manaforts attention to emphasize the seriousness and advancing nature of the investigation, all with the hope of securing his cooperation.

A predawn search by FBI agents of Manaforts house could achieve this objective in a way that a grand jury subpoena just couldnt. And if Mueller was hoping to send a message, it is one that will likely be received by others in addition to Manafort.

If it was not clear already, it should now be plain that Mueller will use all the investigative tools at his disposal to fulfill the task that he has been assigned.

Alex Whiting served for ten years as a federal prosecutor at the Department of Justice and the U.S. Attorney's office in Boston, and eight years as an international criminal prosecutor at the International Criminal Tribunal for the former Yugoslavia and the International Criminal Court in The Hague.

Read more here:

Four Good Reasons Mueller Mounted a Pre-Dawn Raid on Manafort - Newsweek

Last week, the Washington Post published leaked transcripts of President Donald Trumps January phone calls with Mexican President Enrique Pea Nieto and Australian Prime Minister Malcolm Turnbull. Even with the administration beset by daily embarrassing leaks, this one was shocking, going well beyond the mere embarrassing portrayals of daily White House dysfunction. It is fair to presume that such transcripts are classified, and when asked about them, National Security Council spokesman Michael Anton said only that he cant confirm or deny the authenticity of allegedly leaked classified documents.

So nobody should have been surprised that on Friday morning, Attorney General Jeff Sessions and Director of National Intelligence Dan Coats held a press conference condemning the many leaks and vowing investigation and prosecution of those responsible. Sessions called for discipline in executive agencies and Congress to stem leaks. He indicated that since January, the Department of Justice has tripled the number of active leak investigations, and he announced a new FBI counterintelligence unit to manage them.

But then Sessions got to the press: One of the things we are doing is reviewing policies affecting media subpoenas. We respect the important role that the press plays and will give them respect, but it is not unlimited. They cannot place lives at risk with impunity. We must balance the presss role with protecting our national security and the lives of those who serve in the intelligence community, the armed forces, and all law-abiding Americans. Coats reiterated that the administration is prepared to take all necessary steps to identify individuals who illegally expose and disclose classified information.

This marks a serious intervention in a delicate, decades-long balancing act between the federal government and professional journalists. A change in the policy about press subpoenas could have grave consequences for the government and press alike.

A subpoena is the legal tool that forces an individual to testify or produce evidence. When subpoenas are issued to journalists (or their communications providers) in leak investigations, it is most often for the purpose of identifying a leaker: Match the relevant reporters telephone records to an individual with access to the classified information or better yet, force the reporter to testify directly as to the source and youve got your leaker. But youve also compromised the presss ability to protect their sources, undermining their ability to do their job.

Reporters who refuse to reveal their sources in compliance with such subpoenas risk contempt charges. To enforce subpoenas, courts and Congress have the authority to bring contempt charges against those who refuse to comply with lawful orders. Contempt charges aim to compel compliance with the order and can include jail time. In 2005, New York Times reporter Judith Miller famously submitted to jail time for contempt rather than reveal a confidential source in the Valerie Plame leak investigation. (After two and a half months in jail, Miller was released early when Scooter Libby gave a waiver authorizing the government to question reporters about his conversations with them and Miller agreed to testify.)

Testimony that may otherwise be required by law might be nevertheless protected by a privilege. Such privileges include the Fifth Amendment privilege against self-incrimination, marital communications privilege, attorney-client privilege, and executive privileges. The question is whether such a privilege does or should apply to reporters, exempting them from revealing sources.

While the Constitution limits government intrusion on the freedom of speech and of the press, the law does not offer absolute protection for journalists against revealing their sources. Congress has not enacted robust protections and the Supreme Court has not interpreted the First Amendment as itself embodying such a privilege nothing approximating a broad press privilege relieving reporters from revealing sources.

Such a privilege is protected at the state level in nearly all states. New Yorks statutory press privilege, for instance, broadly protects professional journalists against contempt charges for refusing or failing to disclose news obtained or received in confidence or the identity of the source of such news coming into such persons possession in the course of gathering or obtaining news for publication.

But no such privilege has been recognized uniformly at the federal level. In 1972, the Supreme Court rejected a broad First Amendment press privilege in Branzburg v. Hayes. Justice Lewis Powell joined the five-justice majority to reject an unqualified press privilege against revealing confidential sources, but wrote a puzzling separate concurrence suggesting some limited privilege subject to a balancing against the governments interest in a particular case. The state of the law remains uncertain but what we do know is that there is currently no broad, unqualified First Amendment privilege against revealing confidential news sources. (Importantly here, the U.S. Courts of Appeals for the District of Columbia has agreed that even if there is a First Amendment press privilege to not reveal sources, the privilege is not absolute.)

Instead, since 1970, the executive branch has voluntarily restrained itself by limiting the situations in which it will subpoena reporters in investigating leaks. Those self-restraints are codified in federal regulation. Those regulations explicitly recognize the need to strike the proper balance among several vital interests: Protecting national security, ensuring public safety, promoting effective law enforcement and the fair administration of justice, and safeguarding the essential role of the free press in fostering government accountability and an open society.

In striking that balance, the Justice Department explains that subpoenas directed to the news media are extraordinary measures, not standard investigatory practices. As such, press subpoenas are to be approved by the attorney general (or other high-ranking DOJ officials in certain limited cases) and are to be issued only where the information is essential and only after all reasonable alternative attempts have been made to obtain the information from alternative sources.

A system of mutual restraint thus governs in the face of indeterminate legal boundaries. Reporters dont want to go to jail and the government doesnt want to provoke a sweeping Supreme Court ruling or congressional enactment of an absolute press privilege. So reporters notify the government of stories to be published and often respect government requests to hold stories for some period of time for national security reasons. The government reserves the right to subpoena in extraordinary cases, but agrees to correspondingly extraordinary procedures.

But critical to making this delicate system work is that the government maintains credibility that the public believes the government pursues leak investigations, particularly those investigations that directly implicate press freedoms, for legitimate national security reasons, not simply because the leak is embarrassing. When the president lambasts leakers for imperiling national security and threatens to subpoena the press over embarrassing leaks, but then retweets news stories he finds favorable even if they are based on highly sensitive classified defense information, he erodes that credibility. He erodes the governments foothold in that delicate balance with the press.

It is unclear what the attorney generals statement about press subpoenas portends for Justice Department policy and for the delicate balance that has held for decades. Some legal commentators have noted that the department itself has a lot to lose in upsetting the status quo and potentially forcing an adverse First Amendment ruling. What is likely a more immediate threat to the balance is a president who lacks any regard for its fragility and for the importance of the governments credibility in its preservation.

Photo credit:Shawn Thew-Pool/Getty Images

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Trump Is Going After Legal Protections for Journalists - Foreign Policy (blog)

Can a court order a suspect to use the suspects fingerprint to unlock his or her smartphone? Or would that violate the suspects Fifth Amendment privilege against self-incrimination? I wrote about that issue here. This post updates the previous one with two new cases and some additional discussion.

Background. The Fifth Amendment provides in part that no person may be compelled in any criminal case to be a witness against himself. This privilege against self-incrimination applies during the investigative phase of a case as well as at trial. And it applies to the disclosure of information that may lead to incriminating evidence even if the information is not itself directly indicative of guilt. However, it applies only to testimonial activity, not to nontestimonial actions like providing fingerprints, blood samples, or voice exemplars. The act of producing evidence that is not itself testimonial may have a compelled testimonial aspect, as when the act of producing the evidence constitutes an admission that the evidence was in the suspects possession or control. United States v. Hubbell, 530 U.S. 27 (2000) (ruling that tax fraud charges must be dismissed because the charges were based on documents the defendant produced in response to a grand jury subpoena; the defendants act of producing the documents was testimonial because the collection and production of the materials demanded was tantamount to answering a series of interrogatories asking a witness to disclose the existence and location of any incriminating documents; [t]he assembly of those documents was like telling an inquisitor the combination to a wall safe, not like being forced to surrender the key to a strongbox).

Smartphones are often secured by passcodes or fingerprint sensors. Ive written about computer passwords, which present the same Fifth Amendment issues as passcodes, here and here. In brief, some courts view compelling a suspect to provide a passcode as requiring a testimonial act because the passcode is contained in the suspects mind, and because providing the passcode may constitute an admission that the phone belongs to the suspect or is under the suspects control. That doesnt necessarily mean that a court can never order a suspect to provide a passcode. If the court concludes that it is obvious that the phone in question belongs to the suspect so that the act of providing the passcode wouldnt further incriminate the suspect, the court may rule that the suspects knowledge of the passcode is a foregone conclusion, rendering the Fifth Amendment inapplicable. Or the court might rule that the suspect may be required to provide the passcode if given immunity for the act of providing it. Both those possibilities involve complex legal questions that I hope to explore in a future post.

Although passcodes present thorny Fifth Amendment issues, the early authority on point regarding fingerprint sensors suggests that compelling a suspect to use his or her finger to unlock a phone is not testimonial. The suspect is required only to do a physical act placing his or her finger on a sensor and need not admit anything in his or her mind. My earlier post cited the authority available at that time, but we have some new case law now and it points in the same direction.

New cases. The most significant new case is State v. Diamond, __ N.W.2d __, 2017 WL 163710 (Minn. Ct. App. Jan. 17, 2017). The court ruled that a court order compelling a criminal defendant to provide a fingerprint to unlock the defendants cellphone does not violate the Fifth Amendment privilege against compelled self-incrimination.

In brief, the police arrested a burglary suspect and found that he was in possession of a cell phone. They obtained a search warrant for the phone and a court order requiring the suspect to provide a fingerprint to unlock the phone. On appeal, the defendant argued that this violated his Fifth Amendment right to be free from self-incrimination. The reviewing court disagreed because the order did not require the defendant to do anything that was testimonial. The court observed that the order did not require him to disclose any knowledge he might have and reasoned that it was no different than an order to provide a voice exemplar or a blood sample.

Less important but also worth noting is State v. Stahl, __ So. 3d __, 2016 WL 7118574 (Fla. Dist. Ct. App. Dec. 6, 2016). Stahl is a case about a courts authority to order a suspect to provide the passcode to a phone, not a fingerprint. But in the course of discussing the passcode issue, the court stated: Compelling an individual to place his finger on [an] iPhone would not be a protected act; it would be an exhibition of a physical characteristic, the forced production of physical evidence, not unlike being compelled to provide a blood sample or provide a handwriting exemplar.

Caveat. Although requiring a suspect to press the suspects finger to a phone may not require any testimonial activity, orders on this point must be crafted carefully to avoid infringing on a suspects constitutional rights. An order requiring a suspect to unlock a phone, or to provide officers with an impression from the finger that unlocks a phone, might implicate the Fifth Amendment because such an order would require the suspect to decide which finger to use and so to share the suspects knowledge of which finger operates the sensor. Unless the foregone conclusion doctrine applies or the Fifth Amendment issue can be removed through the provision of appropriate immunity, such an order might be improper.

Worthwhile secondary sources. I cited a couple of secondary sources in my previous post. Id like to add to the list two blog posts by Professor Orin Kerr, a leading scholar in this area. His principal post on the topic is here, and a shorter one discussing the Diamond case is here.

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Update on Fingerprints, Phones, and the Fifth Amendment ...

Topeka lawyer Margo E. Burson faced a formal complaint based on the losses of more than $183,000 by two Topeka women.

The family of one woman said she violated their trust. A nursing home had asked her repeatedly to fill out required paperwork for the other woman.

But when Burson appeared at a disciplinary hearing before the Kansas Supreme Court and was asked what authority she had to remove money from a clients account without a judges approval, she paused.

At this time, I decline to answer, Burson said.

Im sorry. What? Justice Dan Biles asked.

I decline to answer, Burson said.

Are you taking the Fifth Amendment? Biles asked.

Yes, Burson said.

With that, questioning about the status of the money ended. That hearing was June 15.

The Fifth Amendment protects a defendant from testifying to something that might be self-incriminating. A witness may sometimes plead the Fifth in district court cases.

But disciplinary administrator Stan Hazlett said he couldnt recall the protection being used in an attorney disciplinary hearing.

In a letter dated July 18, Burson voluntarily surrendered her Kansas law license, and the Kansas Supreme Court disbarred her a day later.

Burson was facing two complaints filed by the Office of the Disciplinary Administrator, which polices the conduct of Kansas lawyers, based on the losses of more than $183,000 by two Topeka women.

The estate of Dorothy May Harvey, an 89-year-old woman who died in September 2011, and a 96-year-old woman living in a senior care facility reported the losses. The name of the older woman hasnt been disclosed in public documents.

Betrayed

Family members were grateful for Bursons help during Harveys final illness, and Burson got initial accounting to family within days of Harveys death.

We trusted her implicitly, said Don Peters, a brother-in-law of Harvey who is married to her sister, June Peters.

Peters, who lives outside of Kansas, said Harveys obituary even reflected respect for the attorney.

The family expresses their deep appreciation to Margo Burson, who lovingly managed her health care affairs, the obituary said.

But the closing of the estate is still ongoing, Peters said. The Peterses became a little suspicious about a year after Harveys death, and by September 2016, they registered a complaint with the disciplinary administrators office.

In essence, she violated our trust, very seriously, Peters said. We feel betrayed, not so much for the money lost but for the time (lost).

Ten internet transfers totaling $66,000 were made from the Harvey estate account, then were deposited into Bursons operating account, according to disciplinary administrators records.

The transfers started on Aug. 19, 2016, and ended on Jan. 30, 2017, and ranged from $1,000 to $19,000 for each transfer, the records show.

We did trust her for years, unfortunately, until we learned she didnt merit our trust, Peters said. She is now our ex-lawyer.

In the other complaint against Burson, more than $117,249 wasnt paid to the account of a 96-year-old woman living at Brewster Place, officials said.

The disciplinary administrator received a complaint from an individual reviewing accounts on behalf of Brewster Place, where Burson had power of attorney for a resident beginning in 2005.

Records show Brewster Place sent letters and emails to Burson on numerous occasions asking her to fill out and file a Medicaid application, a request that began in March 2014.

By February 2017, the residents balance due to Brewster Place was more than $99,000, and on May 24, the balance was $117,249.

When the complaint was filed in June, Burson hadnt completed the Medicaid application process, and the resident remained at the facility.

Brewster Place does not wish to evict the woman, the complaint said.

Worn out

In an interview last week, Burson said she couldnt talk at length about the disciplinary case.

I am not in a position to discuss it at this time, Burson said.

The disciplinary action coincides with Bursons planned retirement, she said. Burson said she had planned to retire at the end of the fiscal year, which was June 30.

The timing on the other matter happened to coincide with her retirement, she said.

It was a surrender of the license, Burson said, rather than a knock down, drag out (disciplinary hearing). Some of us are worn out and ready to do something else.

A full evidentiary hearing was scheduled for Aug. 17 before a three-member panel of lawyers, but that was canceled after Burson surrendered her license.

During her June 15 appearance before the Kansas Supreme Court, Burson asked for time to complete documents for several other clients. She cited her health as a reason for retiring, saying she developed arthritis in the mid-1980s.

Lawyers facing serious allegations in disciplinary cases appear before the supreme court justices, and hearings are recorded on video. Serious cases include alleged acts of dishonesty, misappropriation of money and extreme misconduct.

The day Burson appeared before justices, they temporarily suspended her law license.

Hazlett, the disciplinary administrator, said she was disbarred a month later as a result of the allegations against her and her decision to surrender her license.

Hazlett said he would turn over the investigative materials to a law enforcement agency, and they can decide on how to proceed.

Contact reporter Steve Fry at (785) 295-1206 or @TCJCourtsNCrime on Twitter.

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Topeka lawyer for elderly women takes Fifth, disbarred amid ethics questions - Topeka Capital Journal

Uber unsealed former CEO Travis Kalanicks deposition in the Uber versus Waymo self-driving car technology case over the weekend. Kalanick, who was deposed for more than six hours last month, spoke about when he learned that Anthony Levandowski, who formerly worked at Google, downloaded documents related self-driving technology.

The deposition yet again confirms that Uber was focused on building its technology from the ground up. Uber never wanted any Google material, and took steps to prevent any such material from ever coming to Uber, an Uber spokesperson told TechCrunch.

Waymos suit alleges Uber knew about these documents at the time when Uber acquired Levandowskis self-driving trucking startup Otto. In Kalanicks deposition, he says he did not have any knowledge of the documents until shortly Waymo first filed the complaint in February.

I was pretty serious with him about making sure that these files had not and will not make it to Uber, Kalanick said in his deposition. He went on to say that, And I wanted to make it absolutely clear that no files of any kind from anybodys previous employer make it to Uber.

While Levandowski was still employed at Uber, Kalanick at one point directly asked him if any of the files made it to Uber, to which Levandowski said no.

In his deposition, Kalanick said Levandowski was expecting a bonus at Google and downloaded the documents to make sure hed get that bonus. The deposition, which is nearly 200 pages long, also touches on whether or not Kalanick thought what Levandowski was improper. Kalanick said yes, to which he was then asked why he didnt fire Levandowski at that point.

I was really hopeful that he would cooperate and tell the Court the facts of the matter, cooperate with our investigation, he said. And that was part of what this discussion was about, was just make the declaration, testify. And it may be that I was holding onto that possibility, trying to trying to get him to cooperate with the Court, with our investigation internally. And you know, it was Fing stupid. It was it it yeah. It it just felt like if he could if he could just say what he did and why, and that if you just cooperate, the would be great.

Levandowski, of course, has not cooperated. He very early on in the case invoked his Fifth Amendment rights against self-incrimination.

Another key element of this case is Alphabet CEO Larry Page, who was seemingly unprepared in his deposition last month. In Kalanicks deposition, he describes a call between him and Page from October 2016. According to Kalanick, they spoke about flying cars as well as driverless cars and potential partnership opportunities. Page was not very interested in partnering on self-driving tech, Kalanick said in his deposition.

He he was he was upset about what he what he kept talking about was us taking his IP, Kalanick said. Page kept saying that Uber had taken Googles intellectual property, Kalanick said. And I kept responding and telling him that hiring his people was not taking his IP.

Kalanick went on to describe that it felt like he and Page didnt understand each other and that Page wouldnt explain what his exact issue was.

I told him, we will open up our facility if you think we have taken IP, Kalanick said. Like, come take a look. We will have your people take a look. We will dig deep and make sure. But we were very confident about the process of acquisition and the process we have in hiring people.

Update with comment from a Waymo spokesperson:

This deposition confirms a number of points Waymo has been making since we filed this case, including not only that Mr. Levandowski improperly downloaded files from Waymo but that he had ample opportunity to inject Waymos trade secrets into Ubers technology, given he actively advised Uber engineers on LiDAR design even well before he ran Ubers autonomous driving program. Waymo has significant and direct evidence that Uber is using stolen Waymo trade secrets and we look forward to presenting that evidence at trial.

You can read the full deposition below.

Continued here:

Uber discloses details of Travis Kalanick's deposition in Waymo lawsuit - TechCrunch

Special counsel Robert Mueller (L) arrives at the U.S. Capitol for closed meeting with members of the Senate Judiciary Committee June 21, 2017 in Washington, DC. Alex Wong Getty Images

Washington is all abuzz that Special Counsel Robert Mueller has empaneled a grand jury in furtherance of his investigation into whether or not Donald Trump's campaign colluded with Russia. In spite of the inevitable speculation this creates, its worth remembering that a grand jury is a powerful investigative tool, but not a criminal charge. So what is the significance of a grand jury convening?

A grand jury has the power to subpoena both witnesses and documents, such as bank records and phone records. Refusal to comply with a subpoena, which has the force of a court order, without a legal basis creates the risk of the subpoena recipient being held in contempt of court and subject to criminal or civil penalties.

Legal privileges, such as the Fifth Amendment privilege against self-incrimination, are a basis for a witness to refuse to testify. The only way to get around a legally applicable privilege would be to seek an order of immunity, which would protect the witness from criminal exposure and therefore render the Fifth Amendment inapplicable. Perhaps the most famous immunized witness in past independent counsel investigations is Monica Lewinsky; its easy to forget that former national security advisor Michael Flynns lawyer offered his testimony to the Senate Intelligence Committee if he received immunity, where anything said could not be used against him in a criminal proceeding. The Committee, perhaps anticipating a prosecutors eventual interest in Flynn, declined.

Moreover, certain evidence, such asyes, Mr. Presidenttax returns, are considered more private than others, and cannot be obtained via subpoena. Rather, Mueller would need to seek an order from a judge to obtain Trumps tax returns, a wiretap, or a pen register, for instance.

Unlike Congressional hearings, in which sworn testimony is public, grand jury investigations are secret by law. This secrecy rule is demonstrated by the fact that Muellers grand jury has apparently been working for several weeks, but was only reported in the media yesterday. Prosecutors, law enforcement, and grand jury members themselves are barred from discussing grand jury proceedings. The reasons for this are twofold: First, publicity can cripple an ongoing covert investigation; second, grand jury investigations are secret to protect subjects of an investigation who may or may not ultimately be charged.

Grand jury witnesses, however, are not subject to the secrecy rules. So any legal reports from the grand jury room will come from the witnesses.

Grand juries, like Congress, can issue subpoenas. Unlike Congress, they can vote to criminally indict the subjects of their investigations. The purpose of empaneling a grand jury is to gather and assess the weight of the evidence. It does not mean that there exists enough evidence to amount to proof beyond a reasonable doubt, which is the standard for a conviction, or probable cause, which is the standard the grand jury must find in order to vote to indict. Given the grand jury secrecy rules described above, there is no way for the public to know with certainty how much evidence Mueller has amassed, or its value in a criminal case. So the smart money wont bet on criminal charges by the mere fact of empanelment alone.

In summary, empaneling a grand jury is consistent with Muellers reputation as a lawyer and investigator: a meticulous and thorough officer of the court who is committed to accuracy and the rule of law. But the grand jurys existence doesnt amount to a criminal charge, and it definitely doesnt equate a criminal conviction. As were whipsawed by Washington, its worth taking a page from Muellers book, and following the evidence where it leads.

Juliet S. Sorensen is a clinical associate professor of law at Northwestern Pritzker School of Law. She is the co-author of Public Corruption and the Law: Cases and Materials (West Academic 2017).

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Why Robert Mueller's Grand Jury Isn't Really a Big Deal - Fortune

What are the basic underpinnings of a federal grand jury? In the excerpt from the National Constitution Centers Interactive Constitution, Paul Cassell and Kate Stith lookat their origin as related to the Fifth Amendment.

The first part of the Fifth Amendment reads as follows: 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

Cassell, a University of Utah law professor, and Stith, from the Yale Law School, explained the presence of Grand Juries in the Constitution, in a common interpretation of the Fifth Amendment:

The first of the criminal procedure clauses requires that felony offenses infederal courtbe charged by grand jury indictment. (A grand jury is a panel of citizens that hears evidence that the prosecutor has against the accused, and decides if an indictment, or formal criminal charges, should be filed against them.)

This is one of only a few provisions of the Bill of Rights that the Supreme Court has not held to apply to the states through the Due Process Clause of the Fourteenth Amendment (the others being the Third Amendments protection against quartering of soldiers, the Sixth Amendments requirement of trial in the district where the crime was committed, the Seventh Amendments requirement of jury trial in certain civil cases, and possibly the Eighth Amendments prohibition of excessive fines).

That the Court has been reluctant to apply the grand jury requirement to the states is unsurprising. While the origins of the grand jury are ancientan ancestor of the modern grand jury was included in the Magna Cartatoday, the United States is the only country in the world that uses grand juries. In addition to the federal government, about half the states provide for grand juriesthough in many of these there exist other ways of filing formal charges, such as a prosecutorial information followed by an adversarial but a relatively informal preliminary hearing before a judge (to make sure there is at least probable cause for the charge, the same standard of proof that a grand jury is told to apply). As early as 1884, the Supreme Court held that the grand jury is not a fundamental requirement of due process, and Justice Holmes lone dissent from that judgment has been joined by only one Justice (Douglas) in the intervening years.

Recent scholarship has upset the previous understanding that the grand jury was from its inception venerated because it was not only a sword (accusing individuals of crimes) but also a shield (against oppressive or arbitrary authority). In its early incarnation in England, the grand jury was fundamentally an instrument of the crown, obliging unpaid citizens to help enforce the Kings law. Over the centuries, the idea of a citizen check on royal prerogative became more valued. By the time of the framing of our Constitution, both the grand jury (from the French for large, in sizetoday grand juries are often composed of 24 citizens), and the petit jury (from the French for smalltoday criminal trial juries may be composed of as few as six citizens) were understood, in both Britain and the colonies, to be important bulwarks of freedom from tyranny.

Few in the modern era would espouse such a view. The former Chief Judge of the New York Court of Appeals (that states highest court) famously remarked in recent years that because prosecutors agents of the executive branchcontrol what information a grand jury hears, any grand jury today would, if requested, indict a ham sandwich. While this is a useful exaggerationthe Supreme Court has held that federal grand juries need not adhere to trial rules of evidence, or be told of evidence exculpating the defendantfew prosecutors, fortunately, are interested in indicting ham sandwiches! Rather, the greatest advantage grand juries now provide (at least in federal courts, which are not as overburdened as state courts) is allowing the prosecutor to use the grand jury as a pre-trial focus group, learning which evidence or witnesses are especially convincing, or unconvincing.

At least in federal court, grand juries are here to stay. The institution is written into the Fifth Amendment too clearly to be interpreted away. Moreover, neither pro-law enforcement forces (for obvious reasons) nor allies of those accused (because occasionally grand juries do refuse to indictin the legal parlance, returning a no true bill) have reason to urge their abolition through amendment of the Constitution.

You can read more from Cassell and Stith on the Fifth Amendment, and matters of debate from different perspectives, at our Interactive Constitution at: goo.gl/dsDFKb

Filed Under: Fifth Amendment

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Interactive Constitution: Grand Juries and the Fifth Amendment - Constitution Daily (blog)

Legal experts warn not to read too much into a report that special counsel Robert Mueller has impaneled a grand jury as part of his probe into Russian interference in the 2016 election.

The decision was likely made for practical reasons, such as making it easier to call witnesses to testify, and does not necessarily indicate that the former FBI chief is ready to issue indictments, experts say.

When conducting an investigation, prosecutors commonly work with a grand jury, said Melinda Haag, former U.S. Attorney in San Francisco. Because of its significant legal power and investigative reach, Haag says, impaneling of a grand journey can happen at almost any point during an investigationnot just near the end.

The use of grand juries, which serve as forums for testimony and evidence gathering before a potential trial, is not uncommon in federal cases. Its a unique environment with special rules: because there are no defendants, legal counsel is not present, and the prosecutor has significant control over the proceedings. The process can lead to indictments if criminal evidence comes to light.

In part because it echoes the events of Watergate, Muellers decision to specially impanel a grand jury has been seen as revealing. That means that Mueller opted not to use a sitting grand jury to handle the case, or continue using the grand jury in Alexandria, Va., that had been used by federal prosecutors to investigate former national security advisor Michael Flynn.

But while the special formation of the jury is a highly visible and certainly important move in the ongoing investigation, it may be less dramatic than it initially appears.

Given the nature of the things that Mueller is investigating, it would be odd for him not to use a grand jury in the District of Columbia, said David Sklansky, a co-director at Stanford's Criminal Justice Center, adding that it would be weird for Mueller to rely on a standing jury for the investigation.

There are a number of reasons for that. Under law, grand juries are held to a certain term length and sometimes called to multiple cases, so for a complicated and potentially lengthy investigation it makes sense for a prosecutor to convene a new jury that can devote its entire term and attention to a single case.

And a sitting jury would not have been screened for participation in a high-profile and high intensity case like this one. A dedicated grand jury will be an administrative convenience, in a case that could involve numerous documents and participants, said Robert Weisberg, a criminal justice expert at Stanford Law School.

At an extreme, the formation of the jury could mean that Mueller believes he hasor could soon haveenough evidence to issue an indictment that could lead to a criminal case, says Hadar Aviram, a law professor at UC Hastings. But it could also simply mean the Mueller is hoping to utilize the powerful evidence-gathering machinery that a grand jury provides.

Aviram calls the grand jury process a powerful mechanism that has the capability of generating more evidence through its powers of subpoena, meaning the prosecutor can compel testimony and the handing over of documents. The latter is particularly potent, because, unlike with testimony, its nearly impossible for documents to be protected under the Fifth Amendment. And Weisberg points out that because those who testify are under oath and could end up as defendants in a later trial, and prosecutors can grant immunity in exchange for testimony, the grand jury tends to be a productive environment for revealing testimony and naming of further witnesses.

But Haag emphasizes that the impaneling may simply mean that Mueller plans to start subpoenaing documentsand, even if they are at a stage where they want to take testimony from one or more people, that, too doesnt mean theyre reaching the end of the investigation.

Regardless of the strategy behind the formation of the grand jury, many aspects of it will be mysteries for some time. The proceedings could be lengthy and are legally protected under strict rules of secrecythough witnesses are free to talk about their participation. If witnesses do choose to disclose their involvement, or any details of the subpoenas are leaked, it could provide clues into the shape of the investigation.

But for now, were mostly in the dark.

Everything is just a kind of tea leaf reading at this point, Wesiberg saidadding that any conclusions should be drawn with caution.

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Why Robert Mueller's Grand Jury Isn't a Big DealYet - TIME

The Colorado Springs man who police say held three men at gunpoint last summer on Independence Pass has denied the allegations in response to a lawsuit.

In addition to the denials, Brolin McConnell, 31, also maintains his Fifth Amendment rights, which guard against self-incrimination.

McConnell faces criminal charges of attempted murder, first-degree kidnapping and menacing, among other counts. He has been in jail ever since his arrest on July 27, 2016, following what the alleged victims said was a terrifying and frightening ordeal on Lincoln Creek Road.

Its unclear why McConnell, a Front Range real estate agent, allegedly held the men hostage and made bizarre statements and demands, including one for $100 million. Law enforcement initially suspected he was on methamphetamine, but a drug screen showed only a trace of marijuana in his blood.

He shot twice near one hostage, including a bullet that whizzed by the mans ear, causing hearing damage, according to the lawsuit and police reports. That man and two others were able to escape, and McConnell surrendered after being rushed by sheriffs deputies and an Aspen police officer at gunpoint. He has been held in jail on a $500,000 bond ever since.

In June, the three men sued him in Pitkin County District Court, claiming assault, battery, false imprisonment, extreme and outrageous conduct and negligent infliction of emotional distress.

The criminal case has halted after the district attorneys office appealed a judges dismissal or reduction, in February, of three felony counts, including attempted murder after deliberation, though a charge of attempted murder with extreme indifference was upheld. The disputed charges are now in the hands of the Colorado Court of Appeals.

McConnell has yet to speak in court or enter a plea; his first attorney waived advisement of the charges. At a preliminary hearing in January, in which a judge upheld some of the charges and dismissed or reduced others leading to the appeal Sarah Oszczakiewicz said the current bond was appropriate to protect the public. She cited jail recordings of conversations McConnell had with family members that show him instructing relatives to sell all his possessions to pay for legal representation. That includes multiple firearms, including AR-15 and AK-47 rifles, she said, adding that McConnell told his family he wanted to go live in the woods and forgo society.

On July 24, McConnells attorney, Scott Mikulecky of Colorado Springs, answered the lawsuit with a filing in which all of the allegations are denied.

The plaintiffs claims are barred or reduced by failure to mitigate their damages, the answer says, employing standard, boiler-plate legalese. Defendant expressly reserves all Fifth Amendment rights and privileges.

On Tuesday, Mikulecky moved to stay the lawsuit.

Defendant contends that in order to avoid undue prejudice against him, and to allow him and his counsel to prepare for the criminal trial, this court should stay these civil proceedings until the criminal trial has been completed, says the motion to stay the civil proceeding.

It says that McConnell, during the criminal proceeding, will be advised by his attorneys to invoke the Fifth Amendment in relation to the lawsuit.

And not until the criminal trial is concluded, and any appeals exhausted, will defendant be instructed by counsel that he will no longer have the ability to invoke these Fifth Amendment rights, Mikulecky wrote.

The motion, which the plaintiffs attorney, Ryan Kalamaya of Aspen, did not oppose, was approved by a judge on Wednesday.

chad@aspendailynews.com

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Independence Pass defendant denies multiple allegations - Aspen Daily News

A U.S. District Judge in Connecticut, writing a 104-page decision, on Tuesday ruled that the 1996 Defense of Marriage Act violates the 5th Amendment to the U.S. Constitution.

The ruling by U.S. District Judge Vanessa Bryant, named to the federal bench by President George W. Bush, is the latests of several court ruling against DOMA.The law, which denies federal health and other benefits to same-sex couples, is headed to the U.S. Supreme Court.

Bryant ruled in a case brought by six same-sex couples and a widower, all legally married in the New England states of Connecticut, New Hampshire and Vermont. Marriage equality is now legal in six states and the District of Columbia.

Section 3 of the law violates the 5th Amendments guarantee of equal protection, ruled Bryant, in that it obligates the federal government to single out a certain category of marriages as excluded from federal recognition, thereby resulting in an inconsistent distribution of federal marital benefits.

A U.S. District judge in Connecticut ruled that a federal law defining marriage as only between a man and a woman is unconstitutional because it denies tax, health and other benefits to married gay couples in her state and others.

Judge Vanessa L. Bryant, who was appointed to the bench by former President George W. Bush, ruled today that the marriage restriction contained in the 1996 Defense of Marriage Act violates the Fifth Amendment right to equal protection.

Bryant wrote that the restriction obligates the federal government to single out a certain category of marriages as excluded from federal recognition, thereby resulting in an inconsistent distribution of federal marital benefits.

She also said many courts have concluded that homosexuals have suffered a long and significant history of purposeful discrimination.

Several courts across the country have made similar rulings. The Obama administration has asked the U.S. Supreme Court to settle the issue.

The ruling came in the case of six married same-sex couples and a widower who sued after being denied federal benefits. The plaintiffs are from Connecticut, New Hampshire and Vermont.

Among the plaintiffs are Joanne Pedersen and her spouse, Ann Meitzen.

Im thrilled that the court ruled that our marriage commitment should be respected by the federal government just as it is in our home state of Connecticut, Pedersen said in a statement after the ruling was released.

She and Meitzen, of Waterford, Conn., were married in December 2008. Pedersen, a retired civilian employee of the U.S. Navy, is enrolled in the Federal Employees Health Benefits Program. She sought to get Meitzen covered under the plan, but her request was denied.

Meitzen has a chronic lung condition that affects her ability to work and wants to retire, but she cant because of the cost of her health insurance, Bryants ruling said.

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TALLAHASSEE, Fla. (WTXL)- Jury selection continues Tuesday in the trial of a quadruple murder suspect

WTXL ABC 27's Stephen Jiwanmall reported from the Leon County Courthouse.

Henry Segura has swapped an inmate jumpsuit for a suit.

His trial is getting underway nearly seven years after his girlfriend Brandi Peters and her three children were killed.

The state and the defense questioned more than 50 jurors.

The judge said they'll start narrowing down the field based on how familiar jurors are with the case and whether they have any hardships. In other words, can they serve during the whole trial?

The trial is expected to go for three weeks, and jurors will need to be here for all of it.

In other news this Monday morning, former gang member James Santos, who admitted last week to ordering the murders, is now "unsure" about testifying and invoking his Fifth Amendment rights.

The judge has ordered a competency evaluation to determine whether Santos can offer truthful testimony under oath.

Opening arguments won't start before Wednesday morning. The state says it's working on getting a key witness to testify about when the murders happened.

Check back for later developments.

MOBILE USERS:Download our WTXL news app on yourAppleandAndroiddevices for the latest from South Georgia and North Florida. Also, download our WTXL Weather Now app forAppleandAndroiddevices to get the latest local weather wherever you go.

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This article first appeared on the Just Security site.

It emerged late last week that President Trump has reportedly queried his lawyers regarding the nature and scope of his authority to pardon individuals including himself.

Over the weekend, Trump tweeted a nothing to see here message while asserting his pardon power was complete, presumably meaning absolute.

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While not limitless, the authority of the President to pardon is undeniably substantial. The President cannot pardon for prospective crimes or violations of state criminal law. There is a strong argument that he cannot pardon himself and certainly cannot insulate himself or others from the conviction of impeachment, as expressly stated in the Constitution.

But other than these and perhaps other narrow limitations, a Presidents pardon powers is vast. Indeed, the Presidents power to pardon others including his family members for past federal crimes, even without evidence of specific criminal investigation or prosecution, is arguably plenary in nature.

Not surprisingly in the context of the investigation into Russian interference in our election, Trumps reported interest in pardons has generated an avalanche of commentary exploring the legal limits of presidential pardon authority.

Donald Trump walks along the West Wing colonnade with his daughter Ivanka Trump and his son-in-law and Senior Advisor to the President for Strategic Planning Jared Kushner, March 17, 2017 in Washington, DC. Chip Somodevilla/Getty

Less attention, however, has been paid to why President Trump has not exercised his pardon authority yet, especially with so many of his confidants caught in a web of a criminal inquiry. This is the issue I focus on here.

Some may argue that if Trump were to pardon close confidants say his campaign manager Paul Manafort, the Trump-identified foreign policy advisor Carter Page, Senior Advisor and son-in-law Jared Kushner or his National Security Advisor Michael Flynn the optics would be undesirable and the political fallout substantial.

This is undoubtedly true, President Gerald Ford arguably never recovered politically from the pardoning of President Richard Nixon. But given Trumps record, I am highly skeptical that these political concerns are a sufficient deterrent to exercise his authority.

Unpleasant optics because of his flagrant norm violations thus far have hardly served as significant inhibitions for this President.

He did not release his tax returns as every president has for half a century. He ignored anti-nepotism laws. He discussed on the campaign trail imprisoning his political opponent. He ignores the Emoluments Clause of the Constitution.

The norm transgressions are so substantial that t he Just Security site has a section dedicated to it. There is an outcry. But that outcry and the optics simply do not seem to bother this President or his most ardent supporters. Nor do they seem sufficient to alienate him from almost all of the elected Republicans in Congress, at least so far.

It must be something else. Most likely the President has been informed of one important fact about his pardon power, anyone he pardons is no longer under criminal jeopardy for federal crimes and, accordingly, Fifth Amendment protection for self-incrimination evaporates.

Manafort, Page, Kushner, and Flynn at this point pre-pardon need not answer any questions from Robert Mueller, Congress or anybody. The Fifth Amendment of the United States Constitution provides no person shall be compelled in any criminal case to be a witness against himself.

Once pardoned, however, there is no legal jeopardy for past federal crimes. Therefore, the Fifth Amendment can no longer be a shield and permit Trumps pardoned associates from refusing to answer questions under penalty of perjury.

This creates a paradox for President Trump. When he pardons an individual, they are free from possible prosecution but they are also uncloaked of their most robust constitutional protection.

This may well be why President Trump has not pardoned Flynn, for example. Given the reported substantial contacts between Flynn and Russian government emissaries, given Flynns patent falsities including on federal forms completed under penalty of perjury, Flynns only protection presently from being compelled to testify including possibly against the President and others is the Fifth Amendment self-incrimination clause.

Imagine if that was no longer a shield. Grand Jury, FBI Agents, Congress all could drill Flynn under oath. Any material prevarication would be punishable as perjury. At that point Flynns personal interest will be to tell the truth, even if that truth incriminates the President who fired him.

So the pardon of presidential associates is a double-edged sword. On the one hand, he will ensure they are not prosecuted if they committed crimes in furtherance of the Presidents interest. On the other, once pardoned, the interest of the pardoned associates likely diverges from the President.

If crimes were committed that implicate the President and his family and I do not believe we have sufficient evidence to answer that conclusively at this time prior to being pardoned, a Trump associate is 100 percent within their rights to simply say nothing. But not afterwards.

One caveat worth noting is that because the Presidents pardon power is limited to federal crimes, the Fifth Amendment may offer protection if the pardoned individual is still under jeopardy for state crimes.

However, I do not see this as a substantial issue at this point because in the main, the possible criminal liability of which we are presently aware in the Russia probe seem distinctly federal in nature, e.g., the Computer Fraud and Abuse Act, failure to complete federal disclosure forms truthfully, false statements to the FBI, or obstruction of justice in a federal case, for example.

It is true that we cannot be certain where the investigation will go and it could probe violations of state law. This seems most likely with financial crimes. Money laundering, for example, is illegal both under federal law and New York state law (the most likely state jurisdiction relevant here). And in such fairly circumscribed cases, the pardoned individual would still enjoy Fifth Amendment protection in discussing facts of relevance to those cases.

But I dont think this wrinkle should distract from the main point: The Presidents exercise of his pardon power is not a panacea. There are political costs to be sure. Many will ask, why do you need a pardon if no crime was committed similar to how President Trump discussed a grant of immunity: If youre not guilty of a crime, what do you need immunity for?

It will thereafter be a political cudgel and add to the narrative of a President hell-bent on covering up crimes he committed or that others committed on his behalf.

He fires Comey because of the Russia probe as President Trump himself made clear in the Lester Holt interview. He has confirmed his upset with Sessions because his recusal self-neutered the Attorney Generals ability to defend the President. He attacks Mueller in an attempt to discredit any future findings of wrongdoing. And if he pardons, the story will surely and understandably be that it is another attempt to evade accountability.

These political restraints, as in so many other areas, will not be sufficient to deter this President. However, the realization that anyone he pardons, unless also under jeopardy of state law prosecution, has lost the right against self-incrimination and can be compelled to testify truthfully under pain of contempt and perjury, may well explain this Presidents failure to pardon anyone thus far and may prove a continuing reason not to pardon associates in the future.

In this way, if the President exercises his pardon power down the road, it may signal a certain desperation. It may mean that the investigation is getting close. It will mean he has calculated that whatever the pardoned individual is compelled to testify under oath is less damaging to him and his interests than if the individual was not pardoned but squeezed by prosecutors. It will mean that the political weight of nothing to see here has been overcome by the legal weight of personal and family legal jeopardy.

Keith Harper is a Partner at Kilpatrick, Townsend & Stockton LLP. From 2014 to 2017, he served as United States Ambassador and Permanent Representative to the U.N. Human Rights Council.

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Why Hasn't Trump Already Pardoned Kushner, Flynn, Page and Manafort? - Newsweek

On July 19, 2017, the Second Circuit vacated the convictions and dismissed the indictments of two individuals accused of playing a role in the manipulation of the London Interbank Offered Rate (LIBOR). United States v. Allen, No. 16-898-cr, Slip Op. at 3 (2d Cir. July 19, 2017). The ruling was based on the Fifth Amendment to the US Constitution, which provides that [n]o person... shall be compelled in any criminal case to be a witness against himself. US Const. amend. V. The Second Circuits decision clarifies that this protection against self-incrimination is an absolute trial right that applies to all criminal defendants in US courts (including non-citizens) and to all compelled testimony (including testimony given during a foreign governments investigation). United States v. Allen, No. 16-898-cr, Slip Op. at 55. The courts clarification of the Fifth Amendments scope has important implications for US antitrust enforcers prosecuting international cartels and for individuals ensnared in cross-border criminal investigations alike.

The charges against the defendants in United States v. Allen stemmed from government investigations by the United States, the United Kingdom and others, concerning allegations that several banks had manipulated the LIBOR, a benchmark interest rate for short-term inter-bank loans that is also used as a reference rate for a variety of globally traded financial instruments. The defendants were initially investigated by the United Kingdoms Financial Conduct Authority (FCA) and made self-incriminating statements during compulsory interviews with FCA officials. The FCA provided transcripts of defendants compelled testimony to a third individual under investigation, Paul Robson, who reviewed the transcripts in detail. For reasons unknown, the FCA then dropped the charges against Robson, and his case was picked up by the United States Department of Justice (DOJ). Robson pleaded guilty and then cooperated with the DOJ by providing information about the defendants that led to their indictment and by testifying against them at trial.

On appeal, the Second Circuit threw out both defendants convictions and dismissed their indictments, holding that the Fifth Amendments prohibition on the use of compelled testimony in American criminal proceedings applies even when a foreign sovereign has compelled the testimony. Slip Op. at 80. The Fifth Amendments protection against self-incrimination is an absolute trial right that applies in any American criminal proceeding, and so the defendants status as non-citizens did not alter the courts analysis. Id. at 37-38. In short, the court explained, compelled testimony cannot be used to secure a conviction in an American court. This is so even when the testimony was compelled by a foreign government in full accordance with its own law. Id. at 38.

Cross-border government investigations into price-fixing and other matters of international scope are becoming increasingly common, and United States v. Allen serves as an important reminder that many jurisdictions outside the United States do not have the procedural safeguards in place that the United States Constitution demands. A foreign investigation that does not satisfy these safeguards may produce evidence that does not hold up in court. Where criminal proceedings have a foreign origin, discovery should be taken to reveal potential evidentiary shortcomings, such as witnesses who are tainted by exposure to compelled testimony. Consideration should also be given to the effect of such shortcomings, if any, in potential follow-on civil suits, where standards can be less demanding.

2017 McDermott Will & Emery

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Second Circuit Clarifies Fifth Amendment Law, with Implications for US Prosecution of International Cartels - The National Law Review

This article first appeared on the Just Security site.

On Monday night, the leaders of the Senate Judiciary Committee issued a subpoena to compel Paul Manafort, the former chairman of the Trump presidential campaign, to testify at a public hearing on Wednesday.

The subpoena came as a surprise because just days earlier, Manafort and Donald Trump Jr. had reached a deal with the panel where they would provide records and be interviewed privately (versus in open session) in order to avoid being subponeaed at that time.

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Paul Manafort, former Trump's campaign manager, at the Mayflower Hotel April 27, 2016 in Washington, DC. Chip Somodevilla/Getty

According to the statement from Senate Judiciary Committee Chairman Chuck Grassley and Ranking Member Dianne Feinstein, negotiations with Manafort broke down over who in Congress would be able to access his transcribed interview:

Mr. Manafort, through his attorney, said that he would be willing to provide only a single transcribed interview to Congress, which would not be available to the Judiciary Committee members or staff. While the Judiciary Committee was willing to cooperate on equal terms with any other committee to accommodate Mr. Manaforts request, ultimately that was not possible.

To better understand this latest development, I turned to Andy Wright, Just Security s in-house expert on congressional investigations, to help explain it.

Manafort made demands that the committee, and likely the broader Congress, could not accept.

The committee wanted to get a transcribed interview of Manafort and Trump, Jr. before any subsequent public hearing. Sen. Grassley, as committee chair, had threatened to issue subpoenas for a public hearing, and used that leverage to obtain agreements to voluntarily appear for transcribed interviews.

However, unlike a hearing under subpoena compulsion, someone who voluntarily appears can seek to extract some procedural concessions from the investigating committee. For example, witnesses might seek commitments on the duration, format, legal representation, and transcript access (so the witness can review for error).

Once negotiations broke down, the committee reverted to its compulsory subpoena power.

First, Manafort wanted to do only one transcribed interview before all of Congress.

From his perspective, one interview minimizes the risk that differences in his answers, whether semantic or material, would be used as a perjury trap.

However, its a terrible deal for Congress. A single shot would mean that other committees, including the Senate Intelligence Committee, the House Intelligence Committee, and the House Oversight Committee would all have to rely on the Senate Judiciarys single transcript.

More important, they would have had to rely on Senate Judiciarys questions. Other committees have different jurisdictions, different interests, and different memberships that may want to take questioning in other directions. Also, it might risk losing the opportunity to get Manafort on the record about facts we learn later.

It appears from the statement that the Senate Judiciary Committee was open to trying to play the pool reporter role for the other committees. I cant imagine any other committee would agree without being able to participate in the questions, and Senate Judiciary has no authority to extinguish other committees interests, especially in the House.

Perhaps Senate leadership could engage in deconfliction, but the House has its own prerogatives and constitutional role.

Second, Manafort sought to get an agreement that Grassley and Feinstein would restrict committee staff and member access to the interview transcript. That was a bridge too far. The transcript would then be of little utility to the investigators. Im not convinced that the committees or Senates rules would allow restrictions on Member access to non-classified materials, especially other committee members.

Confining Manaforts interview transcript within one committee would significantly hamper Congresss investigations.

Committees have different jurisdictions, interests, and agendas. For example, the Senate Intelligence Committee has interests in counterintelligence and Russian election interference. They have access to intelligence products that the Senate Judiciary Members do not.

Naturally, Senate Intelligence will have different questions for Manafort than Senate Judiciary. And those questions are critical to the overall inquiry.

Adding to the confusion, Manafort met with the Senate Intelligence Committee on Tuesday.

It is not unusual for witnesses to make requests that their transcripts, or certain topics covered, be kept confidential by a congressional committee. However, Congress almost never agrees. The problem here isnt that Manafort made the request, but that his legal team believed it was gettable.

Under both House and Senate rules, congressional subpoenas can command two things: production of documents and appearance to testify at a formal hearing or deposition. The rules do not permit compelled transcribed interviews.

That is why Congress uses its subpoena power threat, which raises the specter of public shaming, to extract agreements to sit for nonpublic transcribed interviews. That was the process here, but it apparently went off the rails.

Those negotiations would be separate, although Im sure his legal team is acutely monitoring these developments. We still dont know the terms of Trump, Jr.s interview.

If they dont strike a last-minute bargain, Manafort will need to appear at the hearing ready to testify on Wednesday. If he does not show, the Committee could find him in contempt.

I would not be surprised if Manafort pleads the Fifth at this point. However, given his meeting with the Senate Intelligence Committee, Manafort may have waived the Fifth at this point.

If he does show and testify, I anticipate he will get extremely rough treatment by members of both parties.

Kate Brannen is the deputy managing editor of Just Security and a nonresident senior fellow at the Brent Scowcroft Center on International Security at the Atlantic Council.

Andy Wright is a professor at Savannah Law School and former Associate Counsel to the President in the White House Counsels Office.

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Will Manafort claim the Fifth Amendment? Where does this leave Donald Jr.? - Newsweek