From the Nothing New Under the Sun files, I bring you a former president whose concern over leaks to the press eventually blew his entire administration straight to hell.

President Nixons staffers formed the White House Plumbers, explains Time, a secret unit tasked with digging up dirt on Pentagon Papers leaker Daniel Ellsberg. The Plumbers went on to commit crimes for the Committee for the Re-Election of the President, including the Watergate burglaries. Although Nixon denied knowledge of the Plumbers activities, tapes subpoenaed during the Watergate investigation revealed years of political espionage and illegal surveillance. The Smoking Gun tape revealed that Nixon was involved in the cover up. On August 8, 1974, Nixon became the only American president to resign the office.

Nothing so dramatic as that is in the offing today; Donald Trump whose own surveillance program against journalists, Democratic politicians and their families, and even his own lawyer, is roiling Washington, D.C., once again is already out of office. He has been quacking about getting reinstated as president from his funnel hole in New Jersey. Sure, put him back in, and then impeach him a third time. Maybe this one will stick.

The first reports of Trumps administration running its own ham-fisted Plumbers operation landed late last week with a rolling boom. As the Justice Department investigated who was behind leaks of classified information early in the Trump administration, it took a highly unusual step: Prosecutors subpoenaed Apple for data from the accounts of at least two Democrats on the House Intelligence Committee, aides and family members, reported The New York Times. One was a minor.

The roll call of people affected is a perfect match to another Nixonian throwback, the enemies list. Atop Trumps effective corollary to Nixons list was House Intelligence Committee Chairman Adam Schiff, who was a regular target of Trumps tirades. All told, Apple received subpoenas that covered 73 phone numbers and 36 email addresses. A number of the people swept up in this metadata search were not in government, including the aforementioned minor.

Along with the subpoena came a nondisclosure order which barred Apple from informing its customers that the Justice Department was digging into their data. The nondisclosure order was extended three times, reports CNN, each time for a year, Apple said. When it was not extended for a fourth time, Apple said it informed the affected customers on May 5, 2021.

Concurrently, the Trump administration also seized communications data from CNN, The New York Times and The Washington Post. This revelation landed more than a week ago, tangling the Biden administration up in the mess, because his Justice Department apparently continued this surveillance after Trump left office. The Biden White House has disavowed these activities, and the policy regarding leak investigations over at Justice has been changed.

The wildest revelation came this weekend, when it was revealed that one of Trumps targets was his own White House counsel, Doug McGahn. Apple told Mr. McGahn about the subpoena last month, said one of the people, who spoke on the condition of anonymity to discuss the matter. Mr. McGahns wife also received a similar notice from Apple, reports the Times.

The time frame for this is easy enough to recall. Not long after Trump took office, his administration sprang more leaks than a badly wrapped diaper. Nobody in the administrations lower echelons had the courage to resign in protest over the terrifying things they were seeing Anonymous, your table is ready but they were more than happy to spray that cheese into the wind for the news media to collect, and collect it they did.

There were weeks when one could not walk around the block without tripping over 10 heavily sourced news reports about White House shenanigans regarding the southern border, the ceaseless infighting within the administration that was usually inspired by Trump himself, and the administrations dealings with Russia both before and after the election. The Russia questions, it appears, hit a tender spot with Trump, initially prompting the broad and surreptitious data harvest.

Fallout from these revelations is just beginning. House Democrats intend to hold hearings on the matter and will subpoena any witnesses who dont come voluntarily. This includes former Attorney General William Barr, who was running Justice when all of this went down. Barr is trying to put as much daylight as he can between himself and these subpoenas, but that will be challenging.

In May of 2019, then-Sen. Kamala Harris asked Barr directly if the president or anyone at the White House ever asked or suggested you open an investigation into anyone? Barrs reply was a tap-dancing clinic, but if and when he appears at a hearing on this matter, he will not have many places to hide besides an invocation of his Fifth Amendment rights.

The House will not be the only entity involved in this investigation. The Justice Departments internal watchdog announced Friday that he would review how officials sought the data of reporters, lawmakers and others as part of an aggressive crackdown on leaks during the Trump administration, reports the Post, a day after it was revealed the department years ago had secretly obtained the data of two congressmen well known for their criticism of President Donald Trump.

For their part, congressional Republicans are putting on their best What, me worry? faces as these revelations continue to roll in, and why not? Few of them have paid a price for loyalty to Trump, even now that he is out of office. As far as the public stance of the GOP goes, its all blue skies.

but I do wonder. At present, the Republican Party has tasked itself to defeat several wildly popular pieces of Democratic legislation, bury the sacking of the Capitol by Trump supporters under a compost pile of They were just tourists excuses even as they block an investigation into the incident, and now this, a scandal straight out of central casting with an eerily familiar historical hook to boot. There are only so many running chainsaws a person can juggle before limbs start getting lopped off.

The reason this latest issue is so important is that it appears to show the executive branch of the government wielding presidential power to target the legislative branch, reports CNNs Stephen Collinson, and the Presidents personal political enemies. It would be hard to find a more clear and flagrant abuse of presidential power. This behavior would not only be a perversion of the DOJs critical role in ensuring the neutral and apolitical application of justice a key requirement for a democratic society. It would also mirror the actions of autocrats across the world, many of whom Trump openly admired.

The GOPs worst enemy in this? Trump himself, of course. Does anyone think he will sit quietly while this investigation unfolds daily on the television he watches relentlessly? I would be not at all surprised if at some point he winds up pulling a Colonel Jessup from A Few Good Men: Did you order the Code Red? YOURE GOD DAMNED RIGHT I DID!

One of these days not today or tomorrow, but someday I have to believe the GOP will be forced to wise up and toss this hot potato back into the pot. They are whistling past the political graveyard now because Trumps base still has the back of the loyal, but there are not enough voters in that base to make a winning national coalition. As these treacherous stories about the former president continue to pile up, that loyalty may come only to be worth the price of a bus ticket home.

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In His Wild Bid to Stop Leaks to the Press, Trump Even Spied on His Own Lawyer - Truthout

Law360 (June 9, 2021, 10:03 PM EDT) -- A lawful permanent resident of the U.S. sued the Department of Homeland Security in Maryland federal court Wednesday, claiming an unreasonable delay in processing his wife's spousal visa application, which he says has not been acted on since it was filed in January 2020.

Preet Kamal says the failure to process the application of his wife, Vishal Thakur, a citizen of India living in Australia, constitutes a violation of the Administrative Procedures Act, which requires the government agencies to conclude matters "within a reasonable time," and of the due process clause of the Fifth Amendment.

"Preet Kamal has made repeated attempts...

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DHS Hit With Suit Over Spousal Visa Processing Delay - Law360

Confirmed Judges, Confirmed Fears is a blog series documenting the harmful impact of President Trumps judges on Americans rights and liberties. Cases in the series can be found by issue and by judge at this link

Trump Ninth Circuit judges Patrick Bumatay, Mark Bennett, Ryan Nelson, Daniel Bress, and Lawrence VanDyke argued in dissent that police failure to give someone Miranda warnings before interrogation, as required by the Supreme Court, does not violate the Constitution and subject officers to liability for violating constitutional rights. The majority, including Trump judge Eric Miller, rejected that view and let stand a panel decision holding exactly the opposite in Tekoh v County of Los Angeles.

Terence Tekoh, a Black immigrant from Cameroon, was working at a medical center in Los Angeles when a patient accused him of sexual assault. An LA County police detective found Tekoh working in the hospital and began to question him, but never gave him the Miranda warnings required by the Supreme Court before interrogation. According to Tekoh, the deputy brought him into a small windowless office, blocked his path to the exit, and accused him of the sexual assault. After Tekoh maintained his innocence during more than 35 minutes of questioning, the detective falsely told him that the alleged incident had been captured on videotape, but Tekoh continued to state that he was innocent. The deputy ignored Tekohs request for a lawyer and Tekoh then got up to leave. The deputy then stepped on Tekohs toes, put his hand on his gun, and used racial epithets in threatening to have Tekoh and his family deported and put your black ass where it belongs. Tekoh later explained that this left him shaking and triggered flashbacks of police brutality incidents in Cameroon. The deputy then handed Tekoh a pen and paper, and essentially dictated a confession that he demanded that he sign.

Although Tekoh was charged with sexual assault and the statement was used against him, a jury acquitted him on all charges. He then sued the deputy for damages for violating his Fifth Amendment rights. The trial judge refused to instruct the jury that the deputys failure to provide Miranda warnings violated the Fifth Amendment, the jury found against Tekoh, and he appealed. A three-judge Ninth Circuit panel, including Trump judge Miller, unanimously reversed, holding that the trial court erroneously refused to explain to the jury that, if proven, the deputys failure to provide Tekoh with Miranda warnings and the use of his statement at trial deprived him of his Fifth Amendment right against self-incrimination, for which the deputy could be held accountable.

When the deputy requested that the Ninth Circuit reconsider the decision, a majority of the judges who voted, including Trump judge Miller, declined. But Trump judge Bumatay, joined by Trump judges Bennett, Nelson, Bress, and VanDyke, joined by a few others, harshly dissented. Based on their own view of the history of the Fifth Amendment and the right against self-incrimination, they maintained that Miranda is only a prophylactic rule, as the Supreme Court has often referred to it, and that failure to provide Miranda warnings does not violate the Constitution. The dissent made clear that this question is much more than theoretical. Since police officers can be held liable only for violating a constitutional right, Bumatay stated, the dissents view means that the deputy in this case, or any police officer in any case, cannot be held liable under federal civil rights law for violating the prophylactic rule of Miranda. According to the dissenters, the panel decision was an example of brazen judicial overreach that contradicts the text and history of the Fifth Amendment and the weight of precedent.

Although agreeing with some of the dissents analysis, Trump judge Miller explained why the dissents proposed result was unacceptable. Even assuming that Bumatay was correct about the history of the Fifth Amendment, and agreeing that Miranda was not an originalist decision, Miller wrote that Ninth Circuit judges lack authority to disregard the Supreme Courts precedent. As Miller explained, in striking down a Congressional law that tried to overturn Miranda in the Dickerson case, the Supreme Court specifically held that Miranda announced a constitutional rule and, as the Court indicated in another case, established a personal constitutional right. Federal civil rights law thus provides a remedy, Miller stated, when police like the deputy in this case fail to provide Miranda warnings before interrogating a suspect like Tekoh. The dissents arguments may help the deputy in preparing a writ of certiorari to try to persuade the current Supreme Court to change the law, Miller concluded, but they are a poor reason for the Ninth Circuit to reconsider the panel decision.

As a result of the Ninth Circuits decision, Terence Tekoh will have a proper opportunity to get justice and accountability for the deputys misconduct in interrogating him, including the failure to provide Miranda warnings. Yet the opinions of the Trump judges in the case, including even Judge Miller who agreed with the result, are extremely troubling. Putting aside what the Supreme Court may or may not do on the issue, the Trump judges views suggest significant disregard for the importance of holding police accountable for the violation of constitutional rights as in Miranda. Indeed, a few more votes would have allowed the dissenting Trump judges to reconsider the case and rule against Tekoh.

To help preserve and extend the principle of police accountability for violating constitutional rights, it is crucial to our fight for our courts that President Biden nominate and the Senate promptly confirm judges for the Ninth Circuit who recognize the importance of this principle. Four judges on that court have stated that they will be taking senior status upon confirmation of their successors, who have yet to be nominated.

See original here:

Trump Judges Try to Rule that Failure to Provide Miranda Warnings Does Not Violate the Constitution and Allow Lawsuits Against Police: Confirmed...

Throughout the United States, old railroad corridors are being abandoned and converted into other uses, such as hiking, biking or other trail purposes. This converted use makes sense, as it is difficult to otherwise compile a long stretch of right-of-way that would be needed to create such trails. But are adjacent property owners entitled to some sort of just compensation when this conversion takes place? The answer is maybe.

Before a railroad operator can abandon its right-of-way, it must first secure approvals by the Surface Transportation Board. When that abandonment process takes place, public agencies can agree to railbank the corridor--essentially convert it to a trail until the railroad might need the corridor again for rail service. If there is no interim trail use conversion, then the abandonment will proceed, and in such cases, once the abandonment is finalized, adjacent property owners may be entitled to a return of their property (i.e., to the middle of the rail corridor) if the railroad held an easement. Similarly, if the trail conversion proceeds, adjacent property owners may be entitled to just compensation for the area that would have otherwise been returned to them in the event of an abandonment. The concept is that by converting an abandoned railroad into a trail use, the government is depriving the adjacent owner of property that would have otherwise been returned to the owner.

One of the leading cases discussing this concept of a taking in the context of converting an abandoned rail corridor to a public trail system is Toews v. United States, 376 F.3d 1371 (Fed. Cir. 2004). In Toews, the City of Clovis converted the abandoned railroad right of way to a public recreational trail under the federal Rails to Trails Act. The adjacent landowners filed complaints in the U.S. Court of Federal Claims seeking just compensation for the alleged taking of their property in violation of the Fifth Amendment of the Constitution. The court held that the railroad only held an easement for rail purposes, and the government could not convert that railroad easement into a recreational trail without paying just compensation:

According to an article in the Times Standard, Own land adjacent to Great Redwood Trail line? You might be entitled to compensation, this situation is again playing out in Humboldt and Mendocino counties, where landowners with property adjacent to the defunct Northwest Pacific Railroad could receive compensation from the federal government following the North Coast Railroad Authoritys request to railbank a section of the railbed for the proposed Great Redwood Trail.

If you are interested in learning more about the rail conversion process, you can check out the Rails to Trails Conservancy website, or feel free to reach out with any questions.

More here:

What Happens When Railroad Right-of-Way is Abandoned and Turned into a Public Trail System? - JD Supra

EAU CLAIRE Wisconsin Gov. Tony Evers will appoint a special commissioner to hold a hearing on Eau Claire County District Attorney Gary Kings behavior, a step that could lead to an attempt to remove King from office.

Concerns about Kings behavior became public last week after incidents both in the courtroom and the district attorneys office. Coworkers accused King of sexually harassing a woman. An independent investigation by the county led County Administrator Kathryn Schauf to send King a letter instructing him not to have individual contact with employees.

When these employees are in the office, you are not to have any direct one-to-one contact with them until further notice, Schauf wrote. In addition, you are not to approach or question any Eau Claire County employee regarding this investigation or take any retaliatory action against any Eau Claire County employee who you may perceive to be a part of this investigation or believe may have made allegations against you.

Kings courtroom behavior has also been under scrutiny. Eau Claire County Sheriff Ron Cramer submitted a report in February after he saw King behaving oddly, and a hearing last week was postponed after a judge ordered King to have a breath test for alcohol and received the results.

The commissioner will have the authority to determine whether investigations are needed and will report on the findings.

Wisconsin law does allow for a governor to remove a district attorney, but only for cause. It requires written verified charges brought by a taxpayer who lives in the area covered by the attorney, followed by a speedy public hearing which must allow for presentation of a defense.

Witnesses at the hearing are not allowed to assert a Fifth Amendment right to silence, but neither can a witness be prosecuted for anything they say aside from perjury.

Read more here:

Commissioner will head King investigation | Local News | leadertelegram.com - Leader-Telegram

In March, I wrote about National Coalition for Men v. Selective Service System. This petition challenged the federal policy that excludes women from the draft. At the time, I considered whether the Biden Administration would defend the constitutionality of the policy. Ultimately, after several extensions, the SG filed a brief that punted on the constitutional question. Rather, the SG asked the Court to deny the petition so that Congress can change the policy. Sensible enough.

Today, the Court denied cert. And there was a statement respecting the denial of certiorari. It was written by Justice Sotomayor, and joined by Justices Breyer and Kagan. Scratch that. Justice Kagan did not join. It was Justice Kavanaugh. On quick read, I simply assumed it was Justice Kagan. The team at SCOTUSBlog made the same error. But no, it was Justice Kavanaugh.

Let's walk through the statement. Justice Sotomayor begins with a rousing statement about the original meaning of the Due Process Clause of the Fifth Amendment. Scratch that. Justice Sotomayor writes about the Fifth Amendment's Equal Protection Clause:

The Fifth Amendment to the United States Constitution prohibits the Federal Government from discriminating on the basis of sex absent an "'exceedingly persuasive justification.'" Sessions v. Morales-Santana, 582 U. S. ___, ___ (2017) (slip op., at 9) (quoting United States v. Virginia, 518U. S. 515, 531 (1996)); see Califano v. Westcott, 443 U. S. 76 (1979); Califano v. Goldfarb, 430 U. S. 199 (1977); Weinberger v. Wiesenfeld, 420 U. S. 636 (1975); Frontiero v. Richardson, 411 U. S. 677 (1973). Cf. Bolling v. Sharpe, 347U. S. 497 (1954).

Next, the statement expressed agnosticism about how Congress was addressing that issue. Scratch that. Justice Sotomayor quoted legislative history (!) describing the "hope" (!) of one member that a provision may be "incorporated" (!) in a future bill.

Just a few months ago, the Senate Armed Services Committee held a hearing on the report, where Chairman Jack Reed expressed his "hope" that a gender-neutral registration requirement will be "incorporated into the next national defense bill." Tr. of Hearing on Final Recommendations and Report of the [NCMNPS] before the Senate Committee on Armed Services, 117th Cong., 1st Sess., 21 (Mar. 11, 2021).

I need to check Reading Law to see what Justice Scalia thought about citing aspirational statements of legislative history.

The statement concludes with a firm deference to Congress on matters of national affairs. Scratch that. The dissenters will give Congress a bit of time to resolve this issue, but if they don't reach the right result, the Court will.

It remains to be seen, of course, whether Congress will end gender-based registration under the Military Selective Service Act. But at least for now, the Court's longstandingdeference to Congress on matters of national defense and military affairs cautions against granting review while Congress actively weighs the issue. I agree with the Court's decision to deny the petition for a writ of certiorari.

That's a really nice bicameralism-and-presentment you got there. It would be a shame if something happened to it.

This statement is entirely predictable from Justice Sotomayor. Ditto for Justice Breyer.So let's talk about Justice Kavanaugh's join.

First, I am no longer convinced that Justice Kavanaugh is an actual originalist. Sure, he can talk the talk, but time and again, he writes and joins opinions that have no grounding in the original meaning of the Constitution. In a granted case, he would follow non-originalist precedent. But when writing about the denial of certiorari, he is free to write about the Constitution's original meaning. Here, he endorsed one of the most atextual opinions in modern Supreme Court history, Bolling v. Sharpe. And this citation was not a one-off. Justice Kavanaugh also cited Bolling, along withBrownin hisBostockdissent. Now I think the outcome in Bollingcan be justified on originalist groundsRandy and I talk about that case in our book. But an unexplained citation to Bollingdoes not reflect the work of a careful originalist. And his brief footnote in Bostock doesn't cut it. (Democratic Senators wasted so much time asking judicial nominees ifBrownwas correctly decided; they should have asked aboutBolling to watch the noms squirm).

Second, I fear that Justice Kavanuagh will forever try to prove that he is fair to women. In the past, his jurisprudence was not exactly pro-feminist.SeeAzar v. Garza. But the Blasey-Ford allegations, coupled with his contentious second confirmation hearing, may have changed that calculus. This join is a useful way for Justice Kavanaugh to virtue signal he favors gender equality.

Third, I think this opinion reflects another savvy move from Justice Kagan. Why didn't she join the statement? It was basically a tribute to Justice Ginsburg. I'm sure Justice Kagan agreed with it. But when four Justices join a statement respecting the denial of cert, that suggests there are four votes to grant in the future. Justice Kagan's decision to sit out gave Justice Kavanaugh a lane to join.

The past few weeks have been very sleepy. The Court has issued a string of unanimous decisions in relatively unimportant cases. A storm is brewing for the end of the term. Will it be Red June? Or more likely, Purple June?

See the original post here:

Let's talk about Justice Kavanaugh's vote in National Coalition for Men v. Selective Service System - Reason

A senior finance executive at Donald J. Trumps family business has testified before a state grand jury in Manhattan as prosecutors ramp up their investigation of Mr. Trump and his company, according to people with knowledge of the matter.

The executive, Jeffrey McConney, has long served as the Trump Organizations controller, making him one of a handful of high-ranking executives to oversee the companys finances.

The testimony comes as the prosecutors have trained their focus on one of Mr. McConneys colleagues, Allen H. Weisselberg, the Trump Organizations long-serving chief financial officer. The prosecutors, who are working for the Manhattan district attorney, Cyrus R. Vance Jr., have examined the extent to which Mr. Trump handed out valuable benefits to Mr. Weisselbergs family and whether taxes were paid on those perks, The New York Times has reported.

Mr. Vances office has mounted an aggressive effort to gain Mr. Weisselbergs cooperation against Mr. Trump and the Trump Organization, people with knowledge of that effort have said. When seeking to turn an insider into a cooperating witness, prosecutors often seek leverage over the person, including any evidence of past wrongdoing, and then typically offer leniency in exchange for testimony or assistance.

The decision to subpoena Mr. McConney, who has worked at the company for nearly 35 years, suggests that the examination of Mr. Weisselbergs conduct has reached a new phase, with the grand jury hearing evidence about him.

Under state law, witnesses such as Mr. McConney who appear before the grand jury are granted immunity on the subject of their testimony. They cannot exercise their Fifth Amendment right to refuse to answer questions on the grounds that they might incriminate themselves. (If they lie, they still can be prosecuted for perjury.)

A lawyer for Mr. McConney could not be reached for comment. Mary E. Mulligan, a lawyer for Mr. Weisselberg, declined to comment, as did the Trump Organization.

ABC News first reported that Mr. McConney had testified before the grand jury. Other witnesses have also been also been called to testify in recent days.

Mr. Vances office recently convened a special grand jury to hear evidence about Mr. Trump, Mr. Weisselberg and the Trump Organization, according to a person with knowledge of the matter. While Mr. Vances office was already using grand juries to issue subpoenas, obtain documents and hear some testimony, the new grand jury is expected to hear from a range of witnesses in the coming months and could eventually vote on an indictment.

There is, however, no indication that the investigation has reached such an advanced stage or that prosecutors have decided to seek charges against Mr. Trump or his company.

Mr. Trump, a Republican, has argued that the investigation is a politically motivated fishing expedition. A spokesman for Mr. Vance, a Democrat, declined to comment.

The investigation into Mr. Weisselberg centers on the valuable benefits that Mr. Trump provided him and his family over the years, including tens of thousands of dollars in private school tuition for at least one of Mr. Weisselbergs grandchildren, free apartments and leased cars, The Times has reported.

In general, those types of benefits are taxable although there are some exceptions and the prosecutors appear to be scrutinizing whether Mr. Weisselberg failed to pay those taxes.

More broadly, the investigation into the Trump Organization has focused on whether Mr. Trump and the company manipulated property values to obtain certain loans and tax benefits, among other potential financial crimes.

Earlier in the investigation, the prosecutors had focused on hush money payments made during the 2016 presidential campaign to two women who said they had affairs with Mr. Trump.

Mr. McConneys name surfaced in those early stages in a subpoena issued to the Trump Organization in August 2019. The prosecutors, seeking records related to the investigation into the hush money records, sought documents and communications involving a number of people, including Mr. McConney, Mr. Weisselberg and other Trump Organization employees.

Mr. McConney, 66, graduated from Baruch College in 1978 after studying accounting and finance, and joined the Trump Organization about a decade later.

He kept a low profile for years even as he rose to become the companys controller and a senior vice president. But during the 2016 presidential campaign, he appeared in news reports to answer questions about how Mr. Trumps charitable foundation was raising and spending its money.

Asked in September 2016 to account for why the foundation had donated $25,000 to a campaign group associated with a Florida prosecutor who was reportedly weighing an investigation into Trump University, Mr. McConney told The Washington Post, That was just a complete mess-up on names. Anything that could go wrong did go wrong.

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Senior Trump Organization Official to Testify Before Grand Jury - The New York Times

The U.S. Department of Justice (DOJ) is cracking down on healthcare fraud, and many providers are finding themselves facing serious allegations. This includes criminal allegations in many cases. If these allegations lead to a conviction, not only can providers face Medicare and Medicaid exclusion, recoupments, fines, and other financial penalties, but they can face federal imprisonment as well.

When federal prosecutors at the DOJ believe they have sufficient evidence to pursue criminal charges, their next step is usually to seek an indictment before a federal grand jury. While an indictment can ultimately lead to trial and the risk of conviction, there are several intermediate stepsand there are several opportunities for healthcare providers to seek favorable pre-trial resolutions.

An indictment is not a conviction. There are many possible ways to defend against federal healthcare fraud charges following an indictmentincluding ways that can result in a favorable pre-trial outcome. Dr. Nick Oberheiden, Founding Attorney of Oberheiden P.C.

What Happens After a Federal Indictment in a Healthcare Fraud and Abuse Case

In the federal criminal justice system, the purpose of empaneling a grand jury is to determine whether prosecutors have sufficient evidence to pursue charges. The grand jury hears the prosecutions evidence and determines whether there is probable cause to believe that the defendant has committed an indictable crime. If the grand jury finds probable cause, the court will issue an indictment, and the case will be set on the path toward trial.

But, while some federal healthcare fraud cases go to trial, many are resolved during pre-trial proceedings. This can be achieved through either a plea bargain or a successful effort to have the charges dismissed. Following a healthcare fraud indictment, efforts to secure a plea bargain or dismissal should begin immediately. This requires defense counsel who are experienced in handling healthcare fraud cases at all phases of the federal criminal justice process. These phases are:

1. Arraignment

Following a federal indictment on healthcare fraud charges, the next formal step in the process is the arraignment, also referred to as the initial hearing. During an arraignment, the judge reads the charges against the defendant, asks the defendant to enter a plea, and determines whether the defendant will be released on bail or detained until trial.

As a defendant, entering the right plea (not guilty in virtually all cases) and successfully arguing for bail are essential at this stage. Your defense counsel can represent you in court during your arraignment; and, prior to your arraignment, you can (and should) work with your defense counsel to ensure that you know what to expect, what to say, and how your attorneys will argue for bail on your behalf.

2. Discovery

Criminal cases involve a discovery phase similar to civil litigation. However, prosecutors are limited in the information they can obtain, as criminal defendants cannot be forced to share any information that would result in a waiver of their Fifth Amendment privilege against self-incrimination. For defendants in healthcare fraud cases, making strategic use of the discovery phase can be essentialand it can often set the stage for subsequent plea deal negotiations or a motion to dismiss.

During discovery, federal prosecutors are required by law to disclose all evidence and other materials that they intend to use at trial. This includes exculpatory evidence (evidence which suggests that the defendant may be innocent). If prosecutors withhold or otherwise fail to disclose any material evidence, this can potentially support a motion to suppress, motion to dismiss, or motion for a new trial.

3. Preliminary Hearing

The preliminary hearing in a federal healthcare fraud case takes place while the parties are engaged in discovery. While it is often referred to as a mini trial, the rules for preliminary hearings are very different from those that apply to trials.

Prosecutors can introduce evidence that would not be admissible at trial, and the purpose of the preliminary hearing is to allow the presiding judge to determine whether the case should move forward.

A strategic and effective defense at the preliminary hearing phase can result in dismissal of the charges contained in the indictment. While prosecutors have a certain amount of leeway to present their case, defendants have significant opportunities at this stage as well. Even if a preliminary hearing does not result in a dismissal, it may still serve to expose flaws in the prosecutions case which suggest that a jury will not find the defendant guilty beyond a reasonable doubt.

4. Plea Bargaining

By exposing flaws in the prosecutions case, defendants can set the stage for successful plea bargain negotiations in many cases. Healthcare fraud cases tend to be exceedingly complex; and, when prosecutors do not have clear evidence of guilt, they will often be open to considering deal terms that are favorable to the defendant. Even if prosecutors believe they have a strong case, they may be willing to negotiate a deal in order to conserve the DOJs resources and pursue other cases.

When pursuing plea deal negotiations, there are several important factors that healthcare providers need to consider. There are also several different types of plea deal negotiation strategies. Here, too, making informed decisions and communicating effectively with prosecutors requires highly-experienced federal healthcare fraud defense counsel.

5. Pre-Trial Motions and Trial

Prior to trial, defendants in federal healthcare fraud cases have the ability to file various types of motions. These pre-trial motions can serve a variety of purposes, including: (i) establishing leverage in plea deal negotiations, (ii) limiting the scope of the issues or the evidence that will be presented at trial, and (iii) having charges dismissed prior to trial. When filing pre-trial motions, defendants must be able to establish specific and discrete grounds for the arguments they are putting forth, as filing frivolous motions is not only ineffective and wasteful, but can potentially have adverse consequences.

If a healthcare fraud case is not resolved through a plea deal or pre-trial motion to dismiss, then the case will go to trial. The prosecution will present its case first; and, after it does so, the defendant will have an opportunity to file a motion arguing that the prosecution has not met its burden of proof. If this motion fails, defense counsel will then present the defendants case in chief; and, at the end of the trial proceedings, the jury (or the judge, in the case of a bench trial) will render a verdict.

Prosecutors and defendants can and often do negotiate plea deals during trial; and, if a federal healthcare fraud case goes to verdict and sentencing, this is not necessarily the end of the process. There are various grounds for filing appeals and petitions for post-conviction relief, and cases can go on for months, if not years, following trial if the circumstances warrant.

Potential Outcomes Following a Federal Indictment for Healthcare Fraud

In terms of potential outcomes following a federal indictment for healthcare fraud, there are three primary possibilities. These are: (i) pre-trial dismissal, (ii) plea deal, and (iii) trial.

1. Pre-Trial Dismissal

Securing a pre-trial dismissal is generally the best-case scenario following a federal grand jury indictment on healthcare fraud charges. If your case is dismissed, it will be over, and you will be able to return to devoting your full time and attention to running your healthcare business or practice. Potential grounds for seeking pre-trial dismissal in a healthcare fraud case include:

As you can see, these grounds are not based on innocence. Generally speaking, questions of guilt are reserved for the factfinder at trial. However, if there are procedural issues that warrant a not guilty verdict regardless of the facts at hand, then it may be possible to secure a pre-trial dismissal.

2. Plea Deal

Negotiating a plea deal affords the opportunity to avoid the uncertainty of trial. Deciding whether to pursue (and to accept) a plea deal requires a clear understanding of the relevant facts and the relevant lawand this requires experienced federal healthcare fraud defense counsel.

Under appropriate circumstances, negotiating a plea deal can facilitate a favorable outcome to a criminal healthcare fraud case. With that said, prior to approaching prosecutors about a possible plea deal, it is imperative to ensure that this is the best option you have available. If you have grounds to seek a pre-trial dismissal, negotiating a plea could result in unnecessary adverse consequences.

3. Trial

While going to trial is often viewed as a means of last resort, providers facing federal healthcare fraud allegations should not accept unfavorable plea deals solely for the purpose of avoiding trial. Experienced defense counsel will be able to approach trial strategically, fight for a not guilty verdict, and set the stage for post-trial practice if necessary.

Regardless of the circumstances involved, facing allegations of healthcare fraud is an extremely serious matter that requires a strategic and targeted defense. Providers facing these allegations need to engage experienced defense counsel promptly, and they must work with their attorneys to achieve a favorable resolution by all means available.

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Indicted on Healthcare Fraud Charges? 5 Things to Expect & 3 Potential Outcomes - JD Supra

When FBI agents asked for permission to rip hundreds of safe deposit boxes from the walls of a Beverly Hills business and haul them away, U.S. Magistrate Steve Kim set some strict limits on the raid.

The business, U.S. Private Vaults, had been charged in a sealed indictment with conspiring to sell drugs and launder money. Its customers had not.

So the FBI could seize the boxes themselves, Kim decided, but had to return what was inside to the owners.

This warrant does not authorize a criminal search or seizure of the contents of the safety deposit boxes, Kims March 17 seizure warrant declared.

Yet the FBI is now trying to confiscate $86 million in cash and millions of dollars more in jewelry and other valuables that agents found in 369 of the boxes.

Prosecutors claim the forfeiture is justified because the unnamed box holders were engaged in criminal activity. They have disclosed no evidence to support the allegation.

Box holders and their lawyers denounced the ploy as a brazen abuse of forfeiture laws, saying prosecutors and the FBI were trampling on the rights of people who thought theyd found a safe place to stash confidential documents, heirlooms, gold, rare coins and cash.

If the FBI wanted to search the boxes, the lawyers say, it first needed to meet the standard for a court-issued warrant: Probable cause that evidence of specific crimes would be found.

The government cant take stuff without evidence in the hopes that youre going to get it later, said Benjamin Gluck, an attorney who represents box holders suing the government to retrieve their property. The 4th Amendment and the forfeiture laws require the opposite that you have the evidence first, and then you can take property.

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Forfeiture laws enable the government to confiscate assets tied to criminal activity. The generally low standard of proof makes it an appealing tool for prosecutors, who in criminal trials must prove guilt beyond a reasonable doubt.

FBI spokeswoman Laura Eimiller referred questions to the U.S. attorneys office in Los Angeles.

A video screen capture taken from U.S. District Court documents shows agents during the raid of U.S. Private Vaults in Beverly Hills

(U.S. District Court)

Thom Mrozek, a spokesman for the office, denied the government was misusing its powers by trying to confiscate box holders belongings.

We have some basis to believe that the items are related to criminal activity, he said.

In general, Mrozek said, a number of factors would lead the FBI to pursue forfeiture of the boxes contents such as large stacks of cash kept by a person with a criminal record or no known source of income.

Possession of cash in any amount is legal.

Beyond the $86 million in cash, the FBI is seeking to confiscate thousands of gold and silver bars, Patek Philippe and Rolex watches, and gem-studded earrings, bracelets and necklaces, many of them in felt or velvet pouches. The FBI also wants to take a box holders $1.3 million in poker chips from the Aria casino in Las Vegas.

The money and goods are among the contents of about 800 safe deposit boxes the FBI seized in late March during a five-day raid of the U.S. Private Vaults store in an Olympic Boulevard strip mall known for its kosher vegan Thai restaurant.

Federal agents spent five days in late March searching the U.S. Private Vaults store where customers stored valuables in roughly 800 safe deposit boxes. A magistrate authorized the FBIs seizure of the stores business equipment for a drugs and money laundering investigation, but barred searches of the boxes contents.

(Irfan Khan / Los Angeles Times)

The FBI has returned the contents of about 75 boxes and plans to give back the items found in at least 175 more, because there was no evidence of criminality, Mrozek said. Federal agents have not determined who owns what was stored in many other boxes.

The indictment says U.S. Private Vaults marketed itself to attract criminals who wanted to store valuables anonymously and keep tax authorities at bay. An owner and a manager of U.S. Private Vaults were involved in drug sales, it says, and co-conspirators helped customers convert cash into gold to evade government suspicion.

Among those ensnared in the governments dragnet was Joseph Ruiz, who lost his life savings in the raid: $57,000 in cash. An unemployed food service worker who lives near Crenshaw Boulevard and the 10 Freeway, Ruiz, 47, distrusts banks and sees world affairs as deeply unstable, so he kept his money at U.S. Private Vaults.

He obtained the money in two legal settlements, one for a spinal injury in a car accident and another for chronic housing code violations in his apartment building, Ruiz said.

The FBI seized it, rejected his requests to return it and is now moving to confiscate it without explanation.

They just kind of stole my money, said Ruiz, whose most recent job was at Gate Gourmet, an airline caterer.

When he stopped by U.S. Private Vaults during the FBI raid to claim his money, Ruiz said, a federal agent asked if he belonged to a drug cartel.

Im made out to be a criminal, and I didnt do anything, said Ruiz, the son of a retired Los Angeles police officer. Im a law-abiding citizen.

Ruiz has joined Jennifer and Paul Snitko, a Pacific Palisades couple who kept jewelry and baptism certificates in their U.S. Private Vaults box, in filing a class-action complaint against Tracy L. Wilkison, the acting U.S. attorney in Los Angeles, and Kristi Koons Johnson, who heads the FBIs L.A. field office.

It is one of 11 suits filed by box holders that seek the return of their property and court orders declaring the seizures unconstitutional.

They throw people like Joseph into this upside-down world where they did nothing wrong, but theyre forced to come forward to litigate against the government just to get their property back and prove their own innocence, said Robert Frommer, an attorney for Ruiz and the Snitkos.

Frommer is a senior attorney at the libertarian Institute for Justice in Virginia, where he specializes in challenging government forfeitures.

Forfeiture is a controversial tool used heavily in recent decades by federal, state and local law enforcement agencies nationwide. Proponents say it deters crime with the threat that cash, cars and other property acquired illegally, or used for illicit purposes, might be confiscated.

Critics, however, say it is often abused by police and prosecutors who can seize peoples property even if they lack evidence to prove their guilt in a criminal trial. Many jurisdictions have faced accusations of excessive use of forfeiture to fund law enforcement operations.

From 2000 to 2019, forfeitures generated $46 billion for the federal government, an Institute for Justice report found.

Robert Frommer, a senior attorney at the libertarian Institute for Justice, represents Robert Ruiz, left, in a class-action suit against the U.S. government to retrieve cash and valuables seized by the FBI from safe deposit boxes at U.S. Private Vaults in Beverly Hills.

(Al Seib / Los Angeles Times)

In the U.S. Private Vaults case, the FBIs May 20 notice of forfeiture against 369 safe deposit boxes marked a major escalation of what was already a raw display of power by the FBI and U.S. attorneys office in Los Angeles.

This definitely doesnt smell good, said former federal prosecutor David B. Smith, the author of Prosecution and Defense of Forfeiture Cases. They cant say, you show me this is legitimate money thats not the law, and no judge is going to let them do that.

The FBI is trying to confiscate $86 million in cash and millions of dollars in jewelry and other valuables that it seized from 386 safe deposit boxes that a magistrate ordered the government not to search at U.S. Private Vaults in Beverly Hills.

(Christina House / Los Angeles Times)

Box holders who fail to claim their property in the next few weeks will automatically lose it. Those who challenge the confiscation have two choices.

One route is to concede that the FBI has a right to take their money or valuables and request return of at least a portion. The other is to contest the forfeiture by June 24, which would require the government to show evidence in court linking the property to crime. The risk of high legal fees often deters people from filing claims.

Jeffrey B. Isaacs, an attorney for box holders, said prosecutors were trying to extort people into exposing their identities in order to investigate them. Its unprecedented, and I think its very dangerous, he said.

In their lawsuits, box holders claim the FBI is forcing them to give up either their Fourth Amendment protection against unreasonable searches and seizures or their Fifth Amendment right not to incriminate themselves.

The governments intent all along, their lawyers say, was to search every box in defiance of the magistrates warrants for evidence against the customers.

From the start, the raid on U.S. Private Vaults posed challenges for the FBI.

The case that agents built against the business appeared to offer ample grounds for a court to authorize seizure of the companys computers, security cameras and other business equipment including the hundreds of safe deposit boxes lining its walls.

In seeking warrants for the raid, prosecutors and FBI agents acknowledged they had no legal power to search each box for evidence of crimes. They assured the magistrate they would not overstep constitutional limits.

The warrants authorize the seizure of the nests of the boxes themselves, not their contents, FBI agent Lynne Zellhart told Kim, underlining not in her sworn statement requesting search and seizure warrants. By seizing the nests of safety deposit boxes, the government will necessarily end up with custody of what is inside those boxes initially.

A video screen capture taken from U.S. District Court documents shows an agent open a sealed envelope that appears to contain coins during the raid of U.S. Private Vaults in Beverly Hills.

(U.S. District Court)

Zellhart vowed the FBI would make a careful record of each boxs contents, following its written inventory policies to protect the government against claims of theft or damage and to ensure nothing hazardous was stored.

She told the magistrate that agents would inspect the property as necessary to identify the owner and preserve the property for safekeeping. Under FBI policy, she wrote, the inspection should extend no further than necessary to determine ownership.

The FBIs legal handbook for agents describes inventory searches as a caretaking function. Agents must not use them as a ruse for a general rummaging to find evidence of crimes, the Supreme Court has ruled.

They are allowed to seize contraband or evidence that can clearly lead to the apprehension and conviction of a suspect for a specific crime. Fentanyl, OxyContin, and guns were found in boxes at U.S. Private Vaults, according to the FBI.

Still, Gluck said a 44-minute video inventory of FBI agents rifling through the box of an 80-year-old client puts the lie to the governments promises to the magistrate. In the first minute, he said in court papers, agents hold up a document with the womans contact information to the camera, then go on to open a series of sealed envelopes and carefully photograph every page and Post-It note in the box.

In addition, he said, the FBIs chaotic and slapdash inventory of her valuables neglected to include $75,000 in gold coins that she has now sued to recover.

The government, which returned everything else she said was in her box, disputes the claim of missing coins, Mrozek said. At least two FBI agents were present for all box inspections, which were each photographed or videotaped, he added.

We think that weve done the best job possible in accounting for all of the items, he said.

Drug-sniffing dogs at the store during the raid alerted to traces of drugs on most of the money found in boxes, FBI agent Justin Palmerton claimed in a court statement. The boxes containing that cash are subject to criminal investigation, he said.

The reliability of dogs sniffing cash for drug residue is a longtime source of court disputes.

A dog alert alone is insufficient evidence of a drug crime to warrant forfeiture of cash, the U.S. 9th Circuit Court of Appeals ruled in 1994. The court cited testimony that 75% of the currency circulating in Los Angeles was tainted with cocaine or other illegal drugs.

The cash the government is trying to confiscate was taken from 353 boxes in amounts ranging from $5,000 to $2 million, according to the FBI. Mrozek declined to say if any of the allegations of criminal activity were based solely on dog alerts.

Daniel Paluch, 38, was living near the U.S. Private Vaults store a couple years ago when he decided it would be a good spot to store his passport, Social Security card, vaccination records and a few family treasures.

A week after the raid, he told assistant U.S. Attorney Andrew Brown, who is prosecuting U.S. Private Vaults, that he was eager to recover a bracelet his grandmother hid from the Nazis during her internment at Majdanek concentration camp.

It will be difficult for my family and me to stomach damage or loss of most of the items in my box, Paluch wrote in an email.

Brown responded: Please rest assured that the contents of your box are safe and secure, and that we want to return all legitimately held items to their rightful owners. He told Paluch the FBI was vetting all box holders claims and urged him to gather records on the items he stored.

Paluch, a Century City lawyer, had no receipt for the bracelet. He told Brown he was at a bit of a loss as to what records I need to get it back. He requested a copy of the warrant agents had used to seize his property and of the receipt for what was taken both standard documents in any government search.

Brown replied that Paluch was not entitled to a copy of the warrant served on U.S. Private Vaults and that he would need to plead his case to the FBI.

I was not offering to be a liaison between you and the FBI, Brown wrote. My suggestion that you gather relevant records was mere common sense. I do not know what procedures the FBI will employ to vet claims; your ideas are as good as mine.

The FBI ultimately returned Paluchs valuables. But like Ruiz, he felt violated. While he has nothing to hide, he said, I dont like the governments magnifying glass being on me.

They went on a fishing expedition, Paluch said. They painted us all with this broad brush as criminals.

Times Staff Writer Maloy Moore contributed to this report.

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FBI's $86-million cash seizure in Beverly Hills sparks outcry - Los Angeles Times

Summary

The Republican Party pushing the big lie of Donald Trump that the election was stolen and making it the party`s policy. Russia`s Vladimir Putin even says the Capitol riot was legitimate. Rep. Madeleine Dean (D-PA) in interviewed and answers questions regarding the new policy of the Republican Party which is pushing the big lie of Donald Trump. The United States added 559,000 new jobs last month. The unemployment rate dropped below 6 percent for the first time since the start of the pandemic going from 6.1 percent to 5.8 percent as more Americans get vaccinated and states relax COVID restrictions.

(COMMERCIAL BREAK)

RACHEL MADDOW, MSNBC HOST: Thanks for being with us on this Friday night. That`s going to do it for us for now, but I will see you again here on Monday night. Now it`s time for "The Last Word" where the great Ali Velshi in for Lawrence tonight. Good evening, Ali.

ALI VELSHI, MSNBC HOST: Good to see you, my friend. Have yourself an excellent weekend and we will see you next week.

MADDOW: I will do. Thank you, Ali.

VELSHI: Well, breaking tonight in the criminal investigation of Donald Trump, "The New York Times" reports that a senior finance executive at the Trump Organization has testified before the grand jury impaneled by the Manhattan District Attorney`s Office.

Former federal prosecutor Joyce Vance and Pulitzer Prize winning journalist David Cay Johnston will join us later to discuss what this means for defendant Trump. But first, Donald Trump is a weakened man. No longer in office, no longer protected by presidential immunity.

But while the man himself has been diminished, his anti-Democratic ideas are gaining strength, and that should worry all of us. Donald Trump`s lie about the election continues to spread because it`s not just Donald Trump`s lie anymore. It is a lie backed by the Republican Party.

The GOP is a party dedicated to one man right now and to that one man`s lies. But they`re not just repeating the lies. They`re acting on the lies. It is now harder to vote in Arizona, Florida, Georgia, and almost a dozen other states because Republicans are making policy based on Trump`s lie.

The Brennan Center for Justice reports "between January 1st and May 14th, 2021, Republicans had at least 14 states enacted 22 new laws that restrict access to the vote. And at least 61 bills with restrictive provisions are moving through 18 state legislatures."

In states like Texas, Republicans are even trying to make it easier to overturn elections. And the bogus fraudit in Arizona has inspired Republicans in other states to demand similar recounts, including in Pennsylvania.

We`ll discuss that soon with Democratic Congresswoman Madeleine Dean of Pennsylvania. The Republican Party is causing long-term damage to our democracy all because it wants to keep power and please a megalomaniacal former president. Here`s the voting rights attorney Marc Elias.

(BEGIN VIDEO CLIP)

MARC ELIAS, FOUNDER, DEMOCRACY DOCKET: The big lie has moved from a political category, something that Trump and his allies were saying for political purposes, and it is now turning into a pillar of the state. It is becoming a part of state policy and that`s really dangerous.

And one of the ways it`s doing it is through these audits because it is giving the veneer of officialness. They`re being done through state legislatures, through state officials. And it is allowing the big lie to have the imprimatur of the state.

(END VIDEO CLIP)

VELSHI: Today, federal prosecutors said they expect to charge at least 550 people for their roles in the Capitol insurrection. But what`s the message that we are sending to those insurrectionists when Trump`s big lie has been given, as Marc Elias said, the imprimatur of the state by senate Republicans who voted against the commission to learn about the truth on that horrible day?

We cannot rely on institutions and norms to save us. Did we learn that after four years of Trump? Just because Trump is out of office doesn`t mean that everything goes back to the way it was before. The January 6th commission vote is proof of that. The rights of voters are being weakened all the time.

But some say the Democrats won`t take action because they want to preserve an institution like the undemocratic filibuster. Is that how institutions are supposed to work? Facebook is banning Donald Trump until January 2023, just in time for him to run for re-election if he so chooses.

Is that how institutions are supposed to work? Republicans who know better are allowing Trump`s lies to poison minds just because they want to remain in power. Is that how institutions are supposed to work? American democracy must be saved, but it`s not going to be saved by the so-called institutions, not when one party doesn`t play by the rules that those institutions lay out. Institutions failed us for the last four years under Trump. They are not going to save us now. The question is, what will?

Leading off our discussion tonight, Democratic Congresswoman Madeleine Dean of Pennsylvania. She is a member of the House Judiciary Committee. She served as a House Impeachment Manager in the second impeachment of Donald Trump. Also joining us tonight, Professor Eddie Glaude, Jr., the chairman of African American Studies at Princeton University. Eddie is an MSNBC contributor. Good evening to both of you.

Congresswoman Dean, I want to play for you what the attorney general of the state that you and I share, of Pennsylvania said to Rachel just a short time ago talking about the connection between what`s going on in Arizona and what`s going on in other states, including Pennsylvania. Let`s listen to Josh Shapiro.

(BEGIN VIDEO CLIP)

JOSH SHAPIRO, PENNSYLVANIA ATTORNEY GENERAL: I don`t think we can just simply dismiss these folks as fringe. This is who the modern GOP is, certainly who the modern GOP is here in Pennsylvania. Heck, one of those three people who went down there is the leading Republican candidate for governor.

(END VIDEO CLIP)

VELSHI: And he`s talking about somebody who`s running for governor in Pennsylvania. This has now moved from fringe into mainstream, and it is definitely looking like policy of the GOP. You`ve been up close and personal with this in the impeachment. What do we do about this now?

REP. MADELEINE DEAN (D-PA): Well, number one, I`m delighted to be with you, and professor, I`m delighted to be with you. I have to tell you that your book graces my coffee table and it`s heavily marked up. Josh Shapiro is a friend of mine. He`s my mentor. He served in the Pennsylvania House and I had the honor of serving in the Pennsylvania House in his very seat for six and a half years, so I know the Pennsylvania legislature and those legislators very, very well.

Attorney General Shapiro said it very, very well. We`re at a moment of just trying to figure out whether we want to rely upon truth or lies. You know, democracy is not about certainty, it`s about possibility. And so what we have to decide is whether or not we will stand behind the truth and search for the truth as we did today with Mr. McGahn in front of the judiciary committee, or we allow these elected leaders, would-be leaders, to continue the big lie.

I reject the big lie. I think it`s extraordinarily dangerous and for the Pennsylvania Republican legislators who went down Arizona to take a look at the Cyber Ninja fraud of an audit, shame on them. Sadly, I hear they know no shame.

VELSHI: Professor Glaude, I echo the congresswoman`s sentiments. Reading your material makes us a whole lot smarter. This big lie thing which a lot of people thought was sort of done with or maybe behind us isn`t.

Today, Vladimir Putin actually commented on the insurrectionists. He said, "These are not looters or thieves. These people came with political requests," which is just one different from what Representative Andrew Clyde of Georgia said. He said, "There was no insurrection. It was a normal tourist visit." This is the problem. It gets said, it gets repeated, and to some people in America and around the world, it sounds like the truth.

EDDIE GLAUDE, JR., CHAIR, AFRICAN AMERICAN STUDIES, PRINCETON UNIVERSITY: Well, thank you, Ali, and Congresswoman Dean for your kind remarks about my work. But let`s be clear. We have to understand what the shorthand big lie represents. It`s not just simply that the election was stolen, but it`s how the election was stolen, right.

Atlanta, Detroit, Philadelphia, Milwaukee, right? It`s about black and brown voters in Arizona. It`s about young voters, right? And so the big lie is really about this browning of America. There`s a through line from January 6th to the voting laws passed around the country, to anti -- to the violence against Asian-Americans, to the anti-immigration -- to immigration debate.

Some people want us to go back to the Immigration Act of 1924, which was basically constructed by the Klan. So the true lies that there is this deep paranoia about the country becoming, right, a multi-racial democracy. And until we are honest about that, it`s easy to displace it onto Trump.

But Trump is just an avatar for an overwhelming sense that some people feel like they`re being replaced. That`s the big lie. And we need to name it, I think, because it has historical precedent.

VELSHI: Congresswoman Dean, the question of the institutions on which we can rely, we have tried this. You led -- you were part of a team that led the impeachment of Donald Trump. We tried to get a commission to look into January 6th, a bipartisan commission. What Marc Elias was saying is worrisome, the idea that these audits, these fringe audits, these fraudulent audits now have the stamp of being a tool of the state.

It would become normal in places like Texas to be able to have the legislature overturn the will of the people if the will of the people is not what the legislature wants it to be. It worries some people that where does this end and how does it end?

DEAN: It worries me. It`s infectious. We`re seeing it spread across the country in Republican legislatures, again, with highly elected officials continuing the big lie. I`ve that had debate on the floor of the House. It`s quite toxic to talk to Republican legislators who still can`t say that this was a free and fair election, that the courts and the rule of law matters.

I keep thinking back to the funeral of John Lewis where we heard from President Barack Obama. And he talked about democracy is a fragile thing. It`s not a certainty. Democracy is not a certainty. I think maybe for decades we kind of thought it was. It was a given. And Barack Obama talked about we must tend to it.

Democracy is not a certainty, it is a possibility. And until we tell the truth about ourselves as Baldwin argued, as you write in your book, until we tell the truth about ourselves, we`re in danger of succumbing to these lies.

VELSHI: So, Eddie, as you have studied these things both historically and in the current context, what looks like success to you on this front? Is it what we saw in Georgia, a grassroots movement which told people they are trying to take your vote away, they cannot do that under law and under this constitution, but they`re trying to, so you have to fight back, you have to tend to democracy by ensuring that your ballot is cast. Is that what this going to look like, a battle between people who insist on having their vote and those who would try and shut them down?

GLAUDE: Absolutely. It`s going to be a battle, Ali for those who are committed to democracy against those who aren`t. And we need to understand that battle as such. And, you know, it seems to me that someone needs to walk directly to Senator Joe Manchin`s office, Senator Kyrsten Sinema`s office and give them a copy of the letter from the Birmingham jail.

They need to figure out what their positions are, right, because right now we need to ask them, what is your position on the John Lewis Act? What is your position on the For the People Act? We need to understand why are they in some ways hiding behind the institution and not in some ways defending democracy?

And I have a sneaking suspicion, Ali, and you can tell me if I`m wrong, that they are actually providing cover because we should hear a chorus of Democrats, right, asking them this question. We should hear a chorus of Democrats demanding, right, that Sinema and Manchin come out and support what we`re trying to do in terms of definitive democracy.

But I would suggest this, that perhaps our problem isn`t just the Republican Party. Our problem is an ideological frame that in some ways limits how we think of this country as a generally multiracial democracy.

VELSHI: Congresswoman Dean, I want to ask you. I know that you are a member of the Judiciary Committee. You were there to hear testimony from Don McGahn today. Chairman Nadler made the following statement.

He said, "Mr. McGahn testified at length to an extremely dangerous period in our nation`s history in which President Trump increasingly unhinged and fearful of his own liability attempted to obstruct the Mueller investigation at every turn. Mr. McGahn was clearly distressed by President Trump`s refusal to follow his legal advice again and again and he shed new light on several troubling events today."

I know I can`t tell us some things that happen behind closed doors, but what can you characterize for us?

DEAN: A couple of sayings. Number one, this was a good day for democracy. Long time in the coming. You know that we subpoenaed him, the Judiciary Committee subpoenaed him in April of 2019. But here we finally came to the point where we were able to continue our co-equal branch of government, our oversight responsibility.

I found Mr. McGahn to be forthcoming. Certainly, the testimony that he went through was troubling. He brought to life volume two and his part on in volume two of the Mueller report, the extraordinary chaos in that White House.

The pressure on him over and over again by a president in a panic over Special Counsel Mueller`s investigation of Russia`s interference in the election, Russia`s work with or without his campaign, extraordinary pressure about obstructing justice or attempts to obstruct justice.

Asking over and over that Mr. McGahn talk to Rod Rosenstein and direct him to oust Mueller as special counsel. It tells me a lot. Number one, that again, democracy is fragile. We are a co-equal branch of government. We were able to perform our duties in part today, but I hope that with urgency, we will face reform.

I have a bill that was actually introduced by a Republican, Darrell Issa, two Congresses ago which would expedite subpoenas so that we would never go through this nonsense of almost 2-1/2 years before judiciary could do its oversight responsibility and be able to enforce our subpoenas.

So, I will say that I think this was a good day for democracy. A restoration of our co-equal branch of government, of our jurisdiction as members of judiciary, to oversee the extraordinary wrongdoing of a rogue administration.

VELSHI: Well, in the interest of leaving the conversation on a good note then, if you`ve said it`s been a good day for democracy, we shall end there. Congresswoman Madeleine Dean, thank you for joining us. Professor Eddie Glaude, always a pleasure to see you, my friend. Thank you for joining us as well.

Coming up, breaking news in the criminal investigation into Donald Trump and his business. Prosecutors subpoenaed a high-ranking financial officer. Joyce Vance and David Cay Johnston join me next.

(COMMERCIAL BREAK)

VELSHI: Breaking news in the criminal investigation into Donald Trump. The "New York Times" reports that a senior finance executive at the Trump Organization has testified before the grand jury impaneled by the Manhattan District Attorney to decide whether to indict Donald Trump, executives at his company, or the business itself.

That executive is Jeffrey McConney who the "Times" explains "has long served as the Trump Organization`s controller, making him one of a handful of high-ranking executives to oversee the company`s finances."

This comes as prosecutors have ramped up pressure on Trump`s longtime accountant, Allen Weisselberg to cooperate with their investigation. The "Times" reports, "The decision to subpoena Mr. McConney who has worked at the company for nearly 35 years suggests that the examination of Mr. Weisselberg`s conduct has reached a new phase."

Joining us now, Joyce Vance, former United States attorney and a professor at the University Of Alabama School Of Law. She is an MSNBC legal contributor. And David Cay Johnston, Pulitzer prize-winning investigative reporter. He`s done extensive reporting on Trump`s finances. He`s the author of "The Making of Donald Trump."

Welcome to both of you. Good to see you. Let`s start with you, David. You know ins and outs of Trump and the organization and the people who worked for him. This is not a name, McConney that a lot of our viewers will be familiar with. It is still a new and an emerging name. Who is this guy?

DAVID CAY JOHNSTON, AUTHOR, THE MAKING OF DONALD TRUMP: Well, this is a very small organization that Donald Trump runs at the top. And directly under Donald is his finance guy, Allen Weisselberg, who knows where all the bodies are buried and all the money is. And right beneath him is Jeffrey McConney.

And that he has come before the grand jury, which under New York law means he has immunity for anything he testified about, transactional immunity, indicates that they are trying very hard to flip Allen Weisselberg because that`s where he would be most helpful to them in all likelihood, is what did Allen Weisselberg knows, which is everything.

And it will be much easier to make a case, whether it`s a garden variety tax case or, as I believe is likely, a New York State racketeering charge.

VELSHI: Let me ask, let`s go a little deeper into this, Joyce, this transactional immunity. "The New York Times" reporting that "Under state law, witnesses such as Mr. McConney who appear before the grand jury are granted immunity on the subject of their testimony. They cannot exercise their Fifth Amendment right to refuse to answer questions on the grounds that they may incriminate themselves." Tell me what that means and why that is significant to this testimony.

JOYCE VANCE, MSNBC LEGAL CONTRIBUTOR: This is different from federal grand jury practice and it`s really important in this situation because it means that McConney testified in the grand jury without the ability to assert a Fifth Amendment right to avoid self-incrimination. He already had immunity. He had no further risk.

The problem that he faced in that setting, though, was if he failed to answer truthfully, he could be prosecuted down the road for perjury. And of course we know that Cy Vance has at least eight years of Trump`s tax records and underlying documentation, so it`s possible that Mr. McConney was asked to explain much of that paperwork, effectively putting him in a box.

And here`s why it matters. McConney, it looks like, is not the target for prosecution here. Possible that he has a deal with prosecutors already and that he`s cooperating, you know, but this is clearly a tightly knit corporation and one can imagine how awkward it would be to be cooperating and then to go into work the next day.

So prosecutors are looking up the chain here. They`re looking at Allen Weisselberg. It`s possible that McConney had testimony to offer directly about perhaps one of the Trump children or the former president himself. But this is all building up so prosecutors are able to take a hard look at the people who they believe are most culpable for whatever criminal conduct may have occurred.

VELSHI: So, that`s good question, David. The culpability. To some degree, McConney`s been with Trump for a long time, so has Weisselberg. Weisselberg was with Trump`s father. These people are loyal or have been in the past loyal to Donald Trump. You often point out that loyalty with Donald Trump only goes one way. He`ll throw anybody under the bus if it suits him.

So what do they have that would cause McConney to talk? Is it just the idea that this guy has seen how the business runs for more than three decades and can explain that to them and tell them what Weisselberg probably knows or saw?

JOHNSTON: Well, I`d say there`s a high likelihood the prosecutors have something on McConney that is unrelated to the testimony they need for the case they`re trying to build, the Trump organization and some others. So, being around Donald Trump for a long time, there`s a fairly high likelihood that he is engaged in some other kind of behavior that gave the Manhattan prosecutors some leverage on him apart from the testimony he`s given that he has transactional immunity for.

This is a man who`s been with Donald longer than I`ve known him, and I`ve known Donald for 33 years, so he has a long track record with him. And Donald mentioned him in one of his books as the guy who was to check invoices to make sure Donald wasn`t being cheated.

There`s pretty good evidence that Donald has been cheated out of lots of money over various deals over the years. And that also make me wonder about what it was that got the prosecutors to feel confident that granting transactional immunity to McConney was going to be useful to building their case.

VELSHI: Joyce, you and I probably talk about this case about once a week. And our viewers, who probably have, you know, a better legal knowledge than I do, are probably curious as about as to where we are in this process. From your reckoning, where is this in the process? Do they just keep on gathering evidence until they have enough to either move forward with or decline to do anything with?

VANCE: That`s really the point that prosecutors are at here. They`re looking towards making a prosecutive decision. Do they go? Do they decide there is some sort of an evidentiary failure or maybe even that they just can`t find any crimes that were committed?

But this special grand jury that Vance has summoned goes through November. It can be extended, and as a prosecutor you`re often not working on the clock. You don`t set an artificial deadline. You just keep investigating to the point where you`re confident that you either have sufficient evidence to indict or you realize you`re at a dead end where you can`t.

But this grand jury was summoned after an intensive investigation of a lot of financial paperwork, tax paperwork, and now they`re talking to the controller, the guy who knows the day-to-day operations. It looks like they`re getting ready to go.

VELSHI: Thank you to both of you for spending some time with us this evening. Joyce Vance and David Cay Johnston.

Coming up, today`s jobs report showed good news as America climbs out of the pandemic recession. But Republicans claim that relief funds that helped people survive this last year are hurting businesses because workers do not want to accept low-wage jobs. Imagine that. Biden economic adviser Jared Bernstein responds to that next.

(COMMERCIAL BREAK)

VELSHI: The United States added 559,000 new jobs last month. The unemployment rate dropped below 6 percent for the first time since the start of the pandemic going from 6.1 percent to 5.8 percent as more Americans get vaccinated and states relax COVID restrictions.

It was the fifth straight month of job creation. Today President Biden praised the news but urged caution.

(BEGIN VIDEO CLIP)

JOE BIDEN, PRESIDENT OF THE UNITED STATES: America is finally on the move again. As we continue this recovery, we`re going to hit some bumps along the way. Of course that`ll happen.

We can`t reboot the world`s largest economy like flipping on a light switch. There`s going to be ups and downs, and jobs and economic reports, but we`re going to be a supply chain issues and place pressures on the way back to stability and steady growth.

(END VIDEO CLIP)

VELSHI: I spoke earlier today with Jared Bernstein, a member of the president`s Council of Economic Advisers.

(BEGIN VIDEOTAPE)

VELSHI: Jared, good to see you. Thank you for being with us. When we look at these job creation numbers that we saw today for the month of May, it was short of what a number of economists had expected it to be. And you know, you were one of those economists at one time making these predictions based on analysis and data about how many jobs would be created. So a good number, it was strong job creation but short of what was expected. How do you explain that?

JARED BERNSTEIN, WHITE HOUSE COUNCIL OF ECONOMIC ADVISERS: I think we`re in the midst of an historic labor market recovery. I think you really have to recognize that forecasting any numbers right now, especially in the job market and especially these volatile monthly numbers is pretty much impossible.

So, therefore, you really have to look at the underlying trend. Over the past four months, since President Biden took office, this labor market has added 2 million jobs to payrolls. That`s an underlying pace of 540,000 jobs per month. There is no administration that had an opening four months like that in terms of job gains.

We saw the unemployment rate tick down three-tenths of a percent to the lowest rate we`ve seen since before the pandemic. Over 400,000 people moved out of long-term unemployment a decline there, which is very welcome.

I think very importantly you don`t always see these two together -- we`re seeing the strong labor demand met by people coming into the job market and getting some wage bumps. And that`s also really important to the residents in that big White House behind me.

Joe Biden has long believed that if a labor market isn`t generating paycheck gains for working class people, there`s a problem. And so we do this as a very important indicator that we are solidly on a good track here.

VELSHI: So wage bumps are what most people care about, right? Obviously getting a job is the most important but if you`re employed and the unemployment rate goes down, it generally puts pressure on wages to go up.

We`ve seen among a subset of workers called the average hourly earnings of private sector production and nonsupervisory employees. That was up 14 cents to $25.60 an hour in America.

I guess my question is, when folks are saying that there are people who are not taking jobs because of the $300 a month federal benefit, a supplement to unemployment insurance, you add $300 to $300, you get $600 a week, that`s $15 an hour and yet we`re seeing average wages at $25 an hour.

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Transcript: The Last Word with Lawrence O'Donnell, 6/4/21 - MSNBC

Law360 (January 3, 2021, 12:02 PM EST) -- The U.S. Supreme Court is set to decide whether a California regulation requiring farms to allow organizers onto their properties violates the Fifth Amendment, a new wave of litigation over profane outbursts by workers could find its way to the National Labor Relations Board and the board doctrine that shields unions from being ousted while collective bargaining agreements are in effect is under the microscope in 2021.

Here, Law360 looks at the notable labor cases and trends to watch in the upcoming year.

High Court Mulling Union Access

The Supreme Court will soon decide whether a California regulation requiring agricultural businesses...

In the legal profession, information is the key to success. You have to know whats happening with clients, competitors, practice areas, and industries. Law360 provides the intelligence you need to remain an expert and beat the competition.

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Labor Cases And Trends To Watch In 2021 - Law360

A federal judge issued a nationwide injunction on Dec. 22 to block enforcement of an executive order that would have effectively prohibited workplace trainings on implicit bias by federal contractors, federal agencies and the military.

President Trump said in Executive Order 13950 that it was issued to combat so-called offensive and anti-American race and sex stereotyping and scapegoating. The EO cited alleged concerns of a pervasive and malign ideology rooted in the pernicious and false belief that America is an irredeemably racist and sexist country.

Specifically, the EO forbids promoting a list of divisive concepts in workplace diversity trainings conducted by the U.S. Uniformed Services, federal agencies and federal contractors.

In a court challenge, a coalition of nonprofits and consultants argued that the EO would frustrate their efforts to train employees about systemic bias, racism, anti-LGBTQ bias, white privilege, implicit bias and intersectionality.

The suit alleges that the EO would require the plaintiffs to either censor or cease the trainings that are fundamental to their mission of breaking down barriers that underserved communities face or risk losing federal funding in the form of contracts and grants. The suit also alleged that the EO is so vague that it fails to provide notice of what speech is actually subject to penalty.

In a 34-page order, U.S. District Judge Beth Labson Freeman of the Northern District of California issued aninjunction that blocks the key provisions targeted by the plaintiffs.

The EO consists of 10 sections. Section 4 would require that all government contracts include certain express provisions providing that during the performance of the contract, [t]he contractor shall not use any workplace training that inculcates in its employees any form of race or sex stereotyping or any form of race or sex scapegoating. A violation of Section 4 could result in the cancelation, termination, suspension, in whole or in part, of federal contracts.

Section 5 directed the heads of all federal agencies to review their respective grant programs and identify programs for which the agency may, as a condition of receiving such a grant, require the recipient to certify that it will not use federal funds to promote certain divisive concepts.

Initially, the plaintiffs asked for a nationwide injunction against the EO in its entirety, but they later narrowed their request to an injunction limited to Section 4 and Section 5.

Judge Freemans nationwide preliminary injunction prohibits the federal government from implementing or enforcing Sections 4 and 5 of the EO against any federal grant recipient or federal contractor. The court found that requiring federal grantees to certify that they will not use grant funds to promote concepts the Government considers divisive, even where the grant program is wholly unrelated to such concepts, violates the grantees free speech rights.

The judge also found that the EO was so vague that it was impossible for plaintiffs to determine what conduct is prohibited. She noted that the ambiguity regarding the conduct prohibited by Sections 4 and 5 was only exacerbated by the FAQsissued by the Department of Labors Office of Federal Contract Compliance Programs, which failed to narrow prohibited action. Such ambiguity further violated the Due Process Clause of the Fifth Amendment, Judge Freeman found.

The Department of Justice has yet to announce whether it will appeal the injunction, and a new administration will take office at noon on January 20, 2021. While the incoming administration is widely expected to rescind the EO, this ruling was highly anticipated and celebrated by diversity and inclusion professionals, social justice organizations and employers in many different industries. This is particularly noteworthy given the number of employers that have publicly committed to enhance their diversity and inclusion efforts in light of the racial unrest that has unfolded nationally throughout 2020.

It remains important for employers, particularly federal contractors and federal grant recipients, to stay informed of developments in this area as they augment and modify their diversity and inclusion efforts in 2021 and beyond. We will continue to monitor this case and provide any updates on any future developments regarding this Executive Order.

[View source.]

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Court Enjoins Trump Executive Order On Divisive Concepts In Workplace Trainings - JD Supra

Item 5.02 Departure of Directors or Certain Officers; Election of Directors;Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.(e) On November 2, 2020, the Board of Directors (the "Board") of CommunityHealthcare Trust Incorporated (the "Company"), at the recommendation of thecompensation committee of the Board (the "Committee"), authorized and approvedthe Fifth Amendment (the "Wallace Fifth Amendment") to the Employment Agreementby and between the Company and Timothy G. Wallace (the "Wallace EmploymentAgreement"), the Second Amendment (the "Dupuy Second Amendment") to theEmployment Agreement by and between the Company and David H. Dupuy (the "DupuyEmployment Agreement"), and the Second Amendment (the "Stach Second Amendment")to the Amended and Restated Employment Agreement by and between the Company andLeigh Ann Stach (the "Stach Employment Agreement"). These amendments to eachrespective employment agreements were executed on January 4, 2021 and wereeffective as of January 1, 2021.Wallace Employment AgreementThe principal change in the Wallace Employment Agreement resulting from theWallace Fifth Amendment is to increase the base salary paid by the Company toTimothy G. Wallace for his employment as President and Chief Executive Officer("Wallace Base Salary"). In 2020, the Wallace Base Salary was $645,000.00. TheWallace Fifth Amendment increases the Wallace Base Salary to $750,000.00 for2021, which is an $105,000.00 increase from 2020.The foregoing descriptions of the Wallace Fifth Amendment to the WallaceEmployment Agreement are qualified in their entirety by reference to theoriginal Wallace Employment Agreement, which is included as Exhibit 10.6 to theRegistration Statement on Form S-11 of the Company filed with the Securities andExchange Commission (the "SEC") on April 2, 2015, the first amendment to theWallace Employment Agreement, which is included as Exhibit 10.1 to the CurrentReport on Form 8-K filed with the SEC on January 18, 2017, the second amendmentto the Wallace Employment Agreement, which is included as Exhibit 10.1 to theCurrent Report on Form 8-K filed with the SEC on January 2, 2018, the thirdamendment to the Wallace Employment Agreement, which is included as Exhibit 10.1to the Current Report on Form 8-K filed with the SEC on January 3, 2019, thefourth amendment to the Wallace Employment Agreement, which is included asExhibit 10.1 to the Current Report on Form 8-K filed with the SEC on January 3,2020, and the Wallace Fifth Amendment, which is included as Exhibit 10.1 to thisCurrent Report on Form 8-K, and are incorporated by reference into this Item.The foregoing description of the Wallace Fifth Amendment does not purport to becomplete and is qualified in its entirety by reference to such exhibits.Dupuy Employment AgreementThe principal change in the Dupuy Employment Agreement resulting from the DupuySecond Amendment is to increase the base salary paid by the Company to David H.Dupuy for his employment as Executive Vice President and Chief Financial Officer("Dupuy Base Salary"). In 2020, the Dupuy Base Salary was $392,000.00. The DupuySecond Amendment increases the Dupuy Base Salary to $460,000.00 for 2021, whichis a $68,000.00 increase from 2020.The foregoing descriptions of the Dupuy Second Amendment to the Dupuy EmploymentAgreement are qualified in their entirety by reference to the Dupuy EmploymentAgreement, which is included as Exhibit 10.1 to the Current Report on Form 8-Kfiled with the SEC on March 11, 2019, the first amendment to the DupuyEmployment Agreement, which is included as Exhibit 10.2 to the Current Report onForm 8-K filed with the SEC on January 3, 2020, and the Dupuy Second Amendment,which is included as Exhibit 10.2 to this Current Report on Form 8-K, and areincorporated by reference into this Item. The foregoing description of the DupuySecond Amendment does not purport to be complete and is qualified in itsentirety by reference to such exhibits.Stach Employment AgreementThe principal change in the Stach Employment Agreement resulting from the StachSecond Amendment is to increase the base salary paid by the Company to Leigh AnnStach for her employment as Executive Vice President and Chief AccountingOfficer ("Stach Base Salary"). In 2020, the Stach Base Salary was $326,800.00.The Stach Second Amendment increases the Stach Base Salary to $387,600.00 for2021, which is a $60,800.00 increase from 2020.The foregoing descriptions of the Stach Second Amendment to the Stach EmploymentAgreement are qualified in their entirety by reference to the amended andrestated Stach Employment Agreement, which is included as Exhibit 10.1 to theCurrent Report on Form 8-K filed with the SEC on May 2, 2019, the firstamendment to the Stach Employment Agreement, which is included as Exhibit 10.4to the Current Report on Form 8-K filed with the SEC on January 3, 2020, and theStach Second Amendment, which is included as Exhibit 10.3 to this Current Reporton Form 8-K, and are incorporated by reference 2--------------------------------------------------------------------------------

into this Item. The foregoing description of the Stach Second Amendment does notpurport to be complete and is qualified in its entirety by reference to suchexhibits.

Item 9.01 Financial Statements and Exhibits

--------------------------------------------------------------------------------

Edgar Online, source Glimpses

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COMMUNITY HEALTHCARE TRUST INC : Change in Directors or Principal Officers, Financial Statements and Exhibits (form 8-K) - marketscreener.com

More than 800 years ago, an agreement was made between the king and his subjects in England that nobody would be deprived of their liberty without the due process of law and even the king would be subjected to restraint by written words. This agreement, over a period of time came to be known in history as the Magna Carta. After the loss of land to France in a war, King John of England imposed extraordinary taxes and forcibly confiscated lands of the powerful barons, which resulted in a revolt against the monarch and finally, by the mediation of the church of Canterbury, a truce was declared between the king and the barons and a written document was signed between the two, with an understanding that the king would abide by it.

This document, which was signed on June 15, 1215, was the declaration of the rights of the liberty and equality of the common man; and everybody would be equal before the law. The king was the ruler but not a law unto himself. Lord Denning described it as ...the greatest constitutional document of all times - the foundation of the freedom of the individual against the arbitrary authority of the despot. The Magna Carta replaced the concept of absolutism and paved the way for constitutionalism.

Checks and balances

When American freedom fighters decided to cast off the yoke of the British monarchy and spelt their intent to have their own government, the Magna Carta was a major source of inspiration for their constitution. Learning form the British experience, the founding fathers of the American Constitution ensured that no one man should become so powerful that he could trample on the rights of the individual, so they devised the Montesquieus theory of separation of powers and checks and balances. For the smooth functioning of the state, it is incumbent upon the three arms of the state to exercise their powers in harmony. The fifth amendment of the US constitution clearly states, no person shall be deprived of life, liberty or property, without the due process of law.

In 1947, when India attained Independence, a consensus was arrived at - that it would be a democratic state which would guarantee the rights of equality and liberty as spelt out in the Magna Carta and the constitutions of evolved democracies. The framers of our Constitution also ensured that except in an emergency, citizens' fundamental rights would not be suspended and if the executive tried to snatch these rights, the remedy was available in courts. Mrs Indira Gandhi did try to play with fire from 1975 to 1977 when she imposed Emergency, but, then she paid a heavy price.

Since then, no Government has dared to repeat the mistakes made by Mrs. Indira Gandhi but in the last few years, the state has become more discriminatory in the execution of laws; it has evolved more sophisticated institutional tools to curtail the fundamental rights of the citizens and legitimise their actions; and signs of an authoritarianism are acquiring a monstrosity of unmatched proportions which, if not checked in time, may lead to the destruction of the very ideals that our Constitution makers had dreamt of. It is in this context that 2020, in retrospect, depicts a grim picture of the state of affairs, with the rule of law finding itself in suspended animation and the Constitution, it seems, disbelievingly, has been hijacked by a powerful few.

State of suspension

A few years ago, it was unthinkable that an entire state would be put in a state of suspension without any remedy available. Jammu and Kashmir, throughout the year, remained under severe lockdown without any rights. Thousands of people were put behind bars for no fault of theirs. Hundreds of petitions of habeas corpus kept lying in the higher courts without any solution. The Press was ruthlessly muzzled and those who dared question authority were subjected to unqualified state repression and trauma. It was worse than the Emergency imposed by the Mrs Gandhi. But the worst was that the forces of nationalism outside the State rejoiced at their trauma. It was sadism at its best.

In a democratic state, the voice of dissent is respected and disagreements are resolved through peaceful means but when anti-CAA protesters hit the streets, they were brutalised and untold miseries were heaped on Muslims and their sympathisers, so much so that even pregnant women were not spared. In UP especially, they were targeted, their properties were confiscated, posters with their names and addresses were plastered on the walls of the city as if they were hardened criminals.

'Love Jihad' law

Now, a new law in the garb of love jihad has been pulled out, to target a particular community. Other BJP-ruled states are also marching on the same route. The Constitution clearly states that governments have no business to interfere in the private matters of the citizens -- whom they want to marry or mingle with or to what religion they want to belong or convert to. Despite repeated orders from the high court, governments, in their majoritarian zeal, continue to turn a blind eye.

The state has become so discriminatory in the execution of laws that Dr Kafeel Khan is put behind the bars for nine months under sedition laws, for a fictional offence of incitement to violence, but BJP leaders like Dilip Ghosh, Kapil Mishra, Anurag Thakur and others, are given free rein to incite people against the minority community. 83-year-old activist Stan Swamy, suffering from Parkinsons disease, is denied his basic need of a sipper and straw for more than three weeks, intellectuals like Sudha Bharadwaj and Anand Teltumbde are in jail without any charge sheet, for two years. Gautam Navlakha might as well live like a blind man but will not be allowed spects by the authorities for days.

Rule of the law?

When three premier investigative agencies of the country - the CBI, the ED and the NCB - are unleashed on a 26-year-old actor, Rhea Chakraborty, for months, to find out whether she or her family members conspired to kill Sushant Singh Rajput, to settle scores with the Maharashtra government with the help of TV channels then, why should it not be assumed that the Government has freed itself from the 'shackles' of the Constitution and the state no longer believes in the rule of the law.

It was believed that when investigative agencies turn rogue, the highest court will discipline them, but the conduct of the latter, to say the least, has been called judicial barbarism by the leading intellectuals of the country. There is outrage against the behaviour of the Supreme Court. It has revived the memories of the days of Emergency, when instead of protecting the rights of the citizens, it sided with the government. Today I am reminded of the law commission's 14th report that wrote about the qualification of the Chief Justice of India - A Chief Justice must be a judge of ability and experience ... a competent administrator... a shrewd judge of men and above all, a person of sturdy independence and towering personality who would ... be watchdog of the independence of the judiciary."

I can understand that enthusiasts of nationalism may find the Magna Carta a foreign concept, but they should certainly ponder over the words of Granville Austin in the context of Indian Constitution - Social revolution could not be sought or gained at the expense of democracy. Nor could India be truly democratic unless the social revolution had established a just society." A just society is key to the soul of the Constitution. Unfortunately, that very soul is threatened today.

The writer is an author and Editor, satyahindi.com

Continued here:

A just society is key to the soul of the Constitution but that very soul is threatened today, writes Ashutosh - Free Press Journal

Anyone interested in Hollywood crime thrillers or drama, has at least once come across a scene where an arrest is being made by the police. The officer while carrying out the arrest mandatorily utters the following words,

"You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be provided for you. Do you understand the rights I have just read to you? With these rights in mind, do you wish to speak to me?"

I am sure this rings a bell. While these rights are known by every American and even Indian, since they are in place in India as well (in some form), their origin story is not much discussed. These rights arose from the famous case of Miranda v. Arizona and were hence, called the Miranda Rights. The twists and turns of the case, make it suitable for an independent movie or show of itself. In the present post, I shall take you through this important case.

Central to this case are two key amendments of the Constitution i.e., Fifth Amendment and the Fourteenth Amendment. They are briefly explained. The Fifth Amendment guarantees the right against self-incrimination by stating that no person shall be compelled in a criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law. Whereas, the Fourteenth Amendment contains the due process clause guaranteeing to every person that she/he shall not be deprived of her/his life, liberty or property without due process.

Background Facts:

On 3 March 1963, in Phoenix, Arizona an 18-year-old woman named Lois Ann Jameson (name changed) was walking home by herself. Suddenly, a car pulled up near her and the driver Ernesto Miranda, forcefully dragged her in the car. She was tied up using ropes and Miranda told her that he wouldn't hurt her if she remained quiet. Ann did not scream for help. He raped her and later dropped her to the spot she was picked from. Ann reached home and informed her sister, who called the police.

Ann described the rapist as a Mexican man, about 27 or 28 years old, about 5 feet 11 inches tall, about 175 pounds in weight, with short, black, curly hair and dark-rimmed glasses. The detectives identified three-four Hispanic men matching the description, which included Miranda as well. Ann was called to the station to identify the rapist. She did not positively identify Miranda and merely said that he looked similar. The detectives however told Miranda that he had failed the line-up and was identified by the victim. Thereafter, Ann was brought to the room and Miranda was asked, 'whether that was the girl?' to which he responded in the affirmative. Detectives asked Miranda if he would sign a confession, to which he agreed.

Years later, Miranda described his experience in the interrogation room as follows, "Once they get you in a little room and they start badgering you one way or the other, 'you better tell us, or we're going to throw the book at you' . . . that is what was told to me. They would throw the book at me. They would try to give me all the time they could. They thought there was even the possibility that there was something wrong with me. They would try to help me, get me medical care if I needed it. . . . And I haven't had any sleep since the day before. I'm tired. I just got off work, and they have me and they are interrogating me. They mention first one crime, then another one, they are certain I am the person . . . knowing what a penitentiary is like, a person has to be frightened, scared. And not knowing if he'll be able to get back and go home."

Nobody knew that these two hours of police interrogation would spark a legal battle that would result in one of the most important judgments on the rights of the accused.

In trial, his lawyer Alvin Moore argued that during the interrogation, Miranda did not know that he had any rights, much less the right not to witness against himself. His lawyer point blank asked the detectives, whether it was their practice to advise the arrested individuals that they are entitled to the services of an attorney before making any statements. The detectives answered in the negative. The jury's verdict was against Miranda and he was found guilty for the offences of kidnapping and rape.

An appeal was filed first before the Arizona Supreme Court and later before the United States Supreme Court. Miranda's lawyer had two key arguments i.e., (a) Miranda was coerced into confession and (b) an accused has a right to see an attorney before her/his trial. Emphasis was laid on the second argument. The lawyer justified his strategy in the following words, 'The rich and the educated know that they're entitled to counsel, that they don't have to testify against themselves. The poor and the ignorant and the foreign born don't know these things. I think that a legal system that is calibrated to take advantage of the ignorance of the ignorant is dreadful'

Case reaches the Supreme Court:

This case arose during the time of Chief Justice Earl Warren, known to be extremely progressive and liberal. The Court reached its verdict by a vote of 5:4, ultimately holding that prosecution cannot use statements that stem from the interrogation of the accused unless it has complied with certain procedural safeguards. The procedural safeguards were as follows,

'Prior to any questioning, the person must be advised that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive these rights, provided the waiver is made voluntarily, knowingly, and intelligently.'

Justice Harlan wrote a strong dissenting opinion wherein he argued that protection against self-incrimination does not forbid all pressure to extract a confession from the accused.

It is argued by many that the Court's decision was swayed by the individual Justice's political philosophies and they voted on class lines. For instance, judges born to families in humbler circumstances looked at the interrogation room through the eyes of the defendant, those born to privileged families looked at it from the eyes of the police officer.

Aftermath: Is Miranda Freed?

Miranda was confident that the Court's decision would be in his favour and he would be freed. In fact, his father had even bought a bottle of Scotch for his son, to celebrate his homecoming. However, the Court did not free Miranda and instead, ordered a fresh trial. In other words, the Court held that primary evidence against Miranda i.e., the signed confession was inadmissible.

A second trial was scheduled and Miranda's past came to haunt him. Miranda was in an unmarried relationship with one Twila Hoffman (known as common law wife). While Miranda was in prison, Hoffman met another man and had a child with him. When Miranda heard this news, he wrote to the authorities stating that Hoffman was an unfit mother and hence, he desired the custody of the child, once he was released.

Days before the trial, Hoffman approached the investigating officer and told him that on 16 March 1963, shortly after Miranda's arrest she had visited him in the jail and he had confessed his crime to her. Hoffman agreed to testify in Court as well. It was argued by Miranda's lawyer that Hoffman's story was made up, just to retain the custody of her child. However, the Judge was convinced with the testimony and allowed it. Subsequently, the jury found Miranda guilty of the crimes of kidnapping and rape. He was sentenced for 20 to 30 years. The appeals up to the Supreme Court failed.

Fate catches up:

Interestingly, Miranda was released from the prison early on good behaviour. He would often be found at the steps of the very Court that tried him, selling autographed 'Miranda Rights' cards for two dollars each. Despite trying to stay clean for a few months, Miranda started drinking and playing cards. In a bar called La Amapola, he got into a fight and was stabbed twice. Destiny caught up with him and he was taken to the very hospital (Good Samaritan Hospital) where Ann was taken after her rape. He passed away. When the police arrested the killer's accomplice, they took out a card and read, 'You have the right to remain silent'

See the original post here:

You Have The Right To Remain Silent- Story Behind Miranda Rights - Live Law - Indian Legal News

To the editor:

Where do I begin? In his letter, Gerald F. Chase, (A point of disagreement with Hodgson, Dec. 29) suggests that undocumented immigrants have no rights within this nation. But wait, theres more. Chase goes on to say that undocumented immigrants in the Bristol County jail are criminals and therefore have no rights under the Constitution regardless of the activists, lawyers and judges who claim that they do.

I wont go so far as to call this statement stupid. I will instead refer to it as masterfully ill informed. Actually, this statement would have to walk four steps to get to stupid. Criminals have no rights? Hasnt Chase every heard of the Miranda rights that are, by law, read to everyone arrested in our country? Has he never read about due process? Was he sleeping during history class the day they taught about the protection against self-incrimination? You know, the Fifth Amendment?

Our country has always prided itself as the bastion of civil rights. Although we have occasionally dropped the ball, America was founded on and has always fought for equality, justice and freedom from tyranny. We fought those fights not only on our own land, but in many wars on foreign soil in a valiant attempt to guarantee these freedoms around the world because civil rights are human rights.

Please inform Chase that these undocumented prisoners are human beings. This is obviously something both he and Sheriff Thomas Hodgson fail to understand.

Dave Kane

Johnston, R.I.

The writer, a longtime broadcaster, has a radio talk show at 9 a.m. Saturdays on 1320 WARA.

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Letter to the editor: Civil rights are human rights - The Sun Chronicle

On Dec. 14, Margin Walker, the largest independent live-music promoter in Texas, announced that it was permanently shutting down.

A business that booked more than 3,500 shows in Austin, Dallas, Houston and San Antonio over the past four years had collapsed.

It collapsed under the weight of a COVID-19 pandemic that has taken one of the great joys of life experiencing live music with a crowd of fellow enthusiasts away from us and driven countless club owners to (or past) the edge of financial ruin.

On Dec. 21, Congress passed a $900 billion COVID-relief bill that included the Save Our Stages Act, a $15 billion life raft for this countrys independent venues. Six days later, President Donald Trump signed it into law.

As Margin Walker painfully demonstrated, when it comes to music clubs and promoters, the condition is critical and the need is urgent. The Save Our Stages Act wont be a miracle cure, but it can buy some much-needed time until this country turns the corner on the coronavirus.

Blayne Tucker, a San Antonio attorney and co-owner of The Mix, played a pivotal role in getting the legislation passed.

Tucker helped lead the Texas lobbying effort for the National Independent Venue Association (NIVA), a 3,000-member organization which formed in April to represent the interests of music venues.

From the beginning, it was an arduous process, because a lot of it was educating various Congress people, calling up every one of them, Tucker said.

Tucker found a receptive audience with the staff members of U.S. Sen. John Cornyn, R-Texas. He explained to them that the federal Paycheck Protection Program (PPP), which had been crafted to provide loans to small businesses hurt by the pandemic, didnt serve the needs of music venues.

Under PPP, loans are fully forgiven only if businesses use at least 60 percent of the funds for payroll.

For a business thats completely shuttered, to base a forgivable loan on payroll, when you have no work to provide people, that program wasnt going to be effective, Tucker said.

Cornyn and U.S. Rep. Roger Williams, a fellow Texas Republican, agreed to lend their names to a letter calling for targeted legislative action to combat the unprecedented crisis afflicting independent venues.

In July, Cornyn and U.S. Sen. Amy Klobuchar, D-Minnesota, filed the Save Our Stages Act, a bill which proposed $10 billion in Small Business Administration grants for independent venues. (That figure subsequently got a $5 billion funding bump when small movie theaters and community museums were added to the bill.)

With NIVAs encouragement, music-loving constituents across the country sent 2.1 million emails to their senators and representatives. More than 1,200 artists including Foo Fighters, Miley Cyrus and The Roots advocated for the legislation through letters, social-media posts or donations of proceeds to the cause.

Tuckers lobbying effort for NIVA was shrewd, because it was rooted in bipartisanship. He and his NIVA colleagues worked on the assumption that the cultural and economic impact of live venues was something that members of both major parties could appreciate. That assumption proved correct.

What I found that resonated, at least on the Republican side, was this idea that these are small businesses that were mandated by government to shut down and ought to be entitled to some form of just compensation, Tucker said. Kind of analogizing it to the Takings Clause under the Fifth Amendment.

I think that constitutional argument was palatable to a lot of folks on the Republican side, where is wasnt as much couching things as handouts or assistance or bailouts.

For Democratic lawmakers, the argument was pretty clear. An overwhelming number of music venues are located in metropolitan areas, which tend to lean Democratic. Those elected officials have had a front-row ticket to the devastation that COVID-19 wreaked on music clubs.

Hundreds have had to close, Tucker said. Its a slow and steady bleed with every week that goes by, right up until funding comes about.

Folks are exhausting their savings, taking out loans, reaching out to family members. Its a matter of holding on, but nobody can hold on like this without some kind of relief. Because its not like the bills go away.

To help with the administration of the Save Our Stages Act, NIVA has created a task force which will provide policy recommendations for federal regulators.

All we can do is make recommendations, Tucker said. Its a new grant program and regulators themselves arent familiar with the business.

Its kind of educating them in order to distinguish between places that are more or less a restaurant and those that are intended to be helped by the bill.

Itll probably be a couple of months before independent venues start receiving funding help. It cant come soon enough.

ggarcia@express-news.net | Twitter: @gilgamesh470

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Garcia: S.A. club owner helped deliver $15 billion in relief to live venues - San Antonio Express-News

A judge has denied a request by former West Linn Dr. David Farley to put a two-year hold on a civil case filed against him by 29 patients who allege he sexually abused them.

Multnomah County Circuit Judge Melvin Oden-Orr noted in his ruling Monday that for some plaintiffs, 17 years have already passed. This consideration weighs heavily against granting the stay.

Four women initially filed a lawsuit against Farley and then another 25 women joined it last week. Together, the 29 women seek a total of $290 million in damages, alleging Farley performed unnecessary pelvic exams and engaged in sexual battery while they were in his care.

The Oregon Medical Board stripped Farley of his state medical license on Oct. 2 for dishonorable and unprofessional conduct and gross or repeated negligence. He remains under criminal investigation by West Linn police. A majority of the plaintiffs have made statements to police, according to their lawyers.

Karen OKasey, Farleys lawyer, argued that postponing the civil suit would protect Farleys Fifth Amendment right against self-incrimination in the police investigation.

My client is facing a criminal investigation based on the same conduct, if not more, alleged by these same defendants, she told the court.

OKasey also argued that a delay wouldnt prejudice the women suing, noting the alleged conduct occurred five to 17 years ago.

But the judge found the arguments werent sufficient to grant a hold on the civil suit.

Citing case law, Oden-Orr wrote, Defendant has no absolute right not to be forced to choose between testifying in a civil matter and asserting his Fifth Amendment privilege.

Further, Oden-Orr said Farleys request isnt to simply delay a civil trail but also to delay gathering evidence in the case.

Farley can still protect himself by asserting his Fifth Amendment right when necessary, the judge wrote.

Attorneys for the plaintiffs told the court that theyve heard from dozens of other women who have come forward since the initial lawsuit was filed.

Allowing a stay in a civil matter whenever there is a pending criminal proceeding would render these civil cause of actions worthless and would deny victims of sexual assault the right to seek and obtain compensation for their pain and suffering, the plaintiffs lawyers wrote to the court.

The judge said he agreed, allowing the civil case to proceed.

Tom DAmore and John Manly, lawyers for the plaintiffs, said they have been contacted by more than 70 women who have reported alleged abuse by Farley.

Obtaining documents and testimony from Dr. Farley and those who worked with him at West Linn Medical Center, Legacy Meridian Park Hospital and Providence Health Services is crucial to hold those responsible for the pain and suffering of the young women we represent, DAmore and Manly said in a statement.

No criminal charges have been filed against Farley.

Farley moved to Idaho after leaving the West Linn Family Health Center and sending a retirement letter to his patients Aug. 12. He failed to mention he was under board investigation at the time.

As the civil case proceeds, Farley also is fighting to keep confidential the investigative records from the Oregon State Medical Board.

The plaintiffs lawyers had petitioned the Oregon attorney general to order the medical board to release its investigative records involving Farley. The attorney general ordered some released but not all. Farleys lawyers have argued in court papers that the records should remain confidential and are exempt under state law from public disclosure. Theyre seeking a temporary restraining order that would block the records release.

-- Maxine Bernstein

Email at mbernstein@oregonian.com; 503-221-8212

Follow on Twitter @maxoregonian

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Lawsuit filed by 29 women can proceed against former West Linn doctor while criminal investigation continues, - OregonLive

Once the dust has settled, and Kentucky returns to a post-COVID-19 world, it will be time to address just compensation for those who suffered as a result of the executive orders and administrative regulations imposed on Kentuckians, orders and regulations which oftentimes picked winners and losers and those businesses and organizations which would survive the shutdowns across the Commonwealth. As that day arrives, it is appropriate to borrow from a couple of old English idioms, [soon] the chickens will come home to roost and [then] it will be time to pay the piper.

When the founding fathers wrote the Constitution, they were concerned about the arbitrary taking of their property without just compensation. This concern resulted in the Takings Clause which was included in the Fifth Amendment of the Constitution which reads, No person shall be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. Similarly, the Kentucky Constitution provides that [those] individuals invested with the privilege of taking private property for public use, shall make just compensation for property taken, injured or destroyed by them.

Although the original meaning of the takings clause was intended to protect the actual taking of property, the original meaning has evolved over the years to include administrative takings, even those takings which are temporary like those takings which have resulted from the executive orders of the governor and other state and local government officials throughout the COVID-19 crisis.

Certainly, one would have to agree that many of the executive orders were necessary to control the spread of COVID-19. While that may be true, the rhetorical question which necessarily begs an answer is why so many of the executive orders arbitrarily and harshly targeted small businesses and organizations across the Commonwealth. Could it be that the governor and other state and local officials recognized that these small businesses and organizations were less likely to have the resources to fight the executive orders in court, executive orders which would certainly have been challenged by other businesses and organizations with substantial resources?

So why should any of this matter? The reason it matters is that the legislature will be meeting in a few weeks which will provide an opportunity to reign in the unbridled power of a governor or any other state or local official now and in the future, regardless of their political affiliation. It will also provide the legislature with an opportunity to set aside funds in the budget, funds which would be available to compensate those small businesses and organizations which have suffered as a result of decisions, decisions which were often arbitrary.

More importantly, the time has come for all Kentuckians to have a lively discussion and decide whether the language of the takings clauses in the Constitution of the United States and the Kentucky Constitution are more than mere words. In 1987, in upholding the takings clause Chief Justice William Rehnquist wrote the following words, [W]here the government's activities have already worked a taking of all use of property, no subsequent action by the government can relieve it of the duty to provide compensation for the period during which the taking was effective. Finally, it is also time to consider and heed the words of Ronald Reagan when he wrote, Concentrated power has always been the enemy of liberty.

So, as I often do, I will ask all small business owners and organizations to join me on my imaginary mountaintop as we shout to Kentuckys legislature that it is time to reign in the unbridled power of the governor and other state and local officials to issue orders that result in the taking of property; it is time to shout that now that the chickens have come home to roost - it is time to pay the piper. And maybe, just maybe, if those small business owners and organizations shout loud enough others will join in the fight not only in Kentucky, but across America.

Mark Wohlander, a military veteran, former FBI agent and federal prosecutor, practices law in Lexington, Kentucky and throughout the mountains of Eastern Kentucky. Other of Marks columns are available at http://www.fivesmoothstonesky.com.

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The Takings Clause, executive orders and just compensation - Hazard Herald

When Carlos Flores filed suit against the Trump administration last summer, the Laredo-based attorney said he wanted to help his clients try to stave off border wall construction on their stretch of the Texas-Mexico border at least until the presidential election in hopes of seeing a new administration take over.

But with the election over and Trump set to give way to President-elect Joe Biden next month, Flores said the court battles over Trump's signature promise could stretch well past next month's inauguration.

"I could foresee that there are going to be some significant legal battles between now and at least Jan. 20 and possible further into 2021," he said. "It depends on how quickly and how decisively the Biden administration reacts to what's going on down here."

Flores represents Zapata County and two South Texas landowners in a lawsuit challenging Trump's 2017 executive order mandating construction of a physical barrier on the border. It also challenges a series of environmental waivers issued in May aimed at fast-tracking almost 70 miles of barrier from Webb County to Zapata County.

The lawsuit alleges the administration violated the Fifth Amendment's due process clause, which provides for equal protection under the law. The executive order "creates a 2nd Class United States citizen at the southern border who can have their land seized wholesale based on racist and white nationalist motives," the lawsuit states.

During the campaign, Biden said his administration would not build another mile of barrier should he win, and his campaign website states that during his first 100 days in office, he will end the "so-called National Emergency" that Trump declared in order to divert Department of Defense money to help build the barrier.

Still, Flores worries that the border barrier may not be among Biden's immediate priorities, which could allow the Department of Homeland Security to continue moving forward until it gets new marching orders.

"The thing I am really concerned about is that as we head into the winter months, the pandemic is going to get worse," Flores said. "And on day one he's going to have an economic crisis."

Jessica Bolter, a policy analyst with the Migration Policy Institute, said last month that Biden could immediately end Trump's emergency declaration, but it's unclear how that would affect ongoing construction projects and the money already dedicated to them.

"Ending the transfer of future funds doesn't mean in itself that wall construction stops," she said.

Meanwhile, the Trump administration shows no signs of slowing progress on one of his most high-profile campaign promises. A U.S. Customs and Border Protection online tracker of border wall construction indicates a 69-mile stretch of new barrier is under construction in Webb County, and another 52-mile project is in the "pre-construction" phase.

The government hasn't built anything on the land that's part of Flores' lawsuit; court documents show that last month the federal government was granted more time to file documents seeking to dismiss the lawsuit, which would allow the project to proceed. Flores said hearings are possible as late as next month.

"It's all going to depend how aggressive the feds are in moving forward with the construction," he said. "I just don't know why they would spend all this money. I guess people feel like they're going to get fired by President Trump between now and Jan. 20, I don't know."

The Texas Tribune is a nonprofit, nonpartisan media organization that informs Texans and engages with them about public policy, politics, government and statewide issues.

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Efforts to stop Trump's border wall construction could extend long past Inauguration Day - Salon