Daily Archives: August 26, 2020

A viral video claims that one can use the Fifth Amendment to get out of completing the census. This is false.

Is a viral video claiming that the Fifth Amendment can be used to get out of doing the Census legit?

No. The Fifth Amendment protects people from incriminating themselves. However, the information provided in a census form would not incriminate someone. For that reason, the Fifth Amendment doesn't apply, according to legal experts.

Peter J. Smith, The George Washington University Law School

A viral video, published in 2010, has popped up yet again as people fill out their 2020 census forms. In the video, the narrator claims that people can choose not to answer questions on the census, simply by writing Fifth Amendment instead.

"As you can see here," the narrator said. "I've actually written in Fifth Amendment as each answer."

The Verify team turned to legal expert Peter J. Smith, a law professor at The George Washington University, to get his response to this viral video.

"I think the answer is no," Smith said.

Smith pointed out that the Fifth Amendment protects people from self incriminating, something which doesn't relate to the Census questions.

"Writing Fifth Amendment isn't some sort of magic solution," he said. "That would avoid having to answer questions that the government calls mandatory."

Michael C. Cook Sr. from the Census Bureau agreed, adding that filling out the census is important because it can decide voting power and funding for the next decade.

"I'm talking about funding for schools," he said. "Funding for roads, funding for health care."

For more information on the census, visit here.

More here:
VERIFY: No, the Fifth Amendment can't be used to opt-out of the census - KENS5.com

The Trump Organization and its legal teamhave stalled, withheld documents, and instructed witnesses, including Eric Trump, to refuse to answer questions under oath,announced New York Attorney General Letitia James.Thats why weve filed a motion to compel the Trump Organization to comply.

The allegation that the Trump Organization, Trumps personal business and one also employingthe rest of Trumps nonprofit-embezzling family, inflated their alleged assets in order to secure new loans, have been credibly swirling for years. The accusations gained new potency when longtime Trump lawyer Michael Cohen testified to Congress that yes, actually, Trump had very much been doing exactly that. Attorney General James tells the court in her filing that the OAG determined that Eric Trump likely possessed information relevant to OAGs inquiryfollowed by several blacked-out linesand served a subpoena to Eric in late May. Eric originally agreed to be interviewed, only to later change his mind; that, too, might have been intended as a stalling tactic.

To clarify, note again that this is a New Yorkstateinvestigation. Its separate from the unknown Trump-linked investigations still percolating inside the Department of Justice, in the Southern District of New York, the ones William Barr has dedicated himself to tamping out as apparent top leadership priority. Presidents cannot pardon state crimes.

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Is Eric Trump invoking the Fifth Amendment to dodge testifying about Trump Organization finances? - AlterNet

The president of the United States is relentlessly threatening the right of citizens to exercise their right to vote. He is also saying that he might not leave office if he loses the election, and that the election is "rigged" unless he wins. He also spends most of his days watching television, raging, fulminating, lying, demanding loyalty of those around him, demeaning his political opponentsand trading in conspiracy theories, while creating chaos instead of a plan to addressa pandemic that could take300,000 American lives by the end of the year.

Is such a person fit for this office?Anyoffice?

As has been the caseevery single dayfrom the beginning of this horrific tweet-fest mockery of a presidency: It's 25th Amendment time.

No, of course it won't happen not with the loyalist, anti-democratic ideologues the president has methodically surrounded himself with in his cabinet, likely to this very purpose. But by any objective (i.e., non-cultist) view it should happen before the upcoming election is furtherthrown into chaos to frighten off voters.

It won't happen. But wewould fail our duty to this country if we did not pause to note this fearful moment in time, did not look again at the purpose of this critical amendment, and did not call out the Trump administration's cabinet members who failed to take this step to protect an election and save this democratic republic.

In "The Twenty-Fifth Amendment: Its Complete History and Earliest Applications," by John D. Feerick, the author notes that the framers of the Constitution did not spend much time at the Constitutional Convention in 1787 onthe subject of presidential succession:

They seem to have thought they handled the matter adequately by providing for the office of Vice President and by inserting in the Constitution the following clause on presidential succession:

"In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the same shall devolve on the Vice President, and the Congress may by Law provide the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Office shall act accordingly, until the Disability be removed, or a President shall be elected."

Thisvague language in the Constitution was unworkable in practice and hampered decisions in terms of both presidential inability and vice presidential vacancies. Feerick notes: "For the first 52 years of the existence of the presidency, our nation was remarkably fortunate. No President died in office, although three vacancies did occur in the vice presidency."

As to what constituted "incapacity" of a president, no one could really say. Andin an American tradition, this became a can that would be kicked down the road time and again after each crisis.

Questions on this score arose numerous times. There wasJames Madison, who in the summer of 1813 was "indisposed by illness" for weeks; James Garfield, who survived, incapacitated, for an excruciating 80 days after being shot; Chester Arthur, who was diagnosed with Bright's disease and suffered from "spasmodic nausea, mental depression, and indolence" and who, as a result, developed a very casual approach to his presidency, often not beginning work until noon or one o'clock (which sounds like someone we know); Grover Cleveland, who in the summer of 1893 took a cruise on a yacht and secretly underwent an operation to remove a cancerous growth on the roof of his mouth, which entailed removing a large portion of his upper jaw; William McKinley, who survived an assassin's bullet for about a week; Woodrow Wilson, who fell ill while on a speaking tour in late September 1919 and then, after returning to the capital, suffered a stroke that paralyzed the left side of his body; Franklin D. Roosevelt, who entered his fourth term in 1945 gravely ill and not able to function to his previous level, dying soon after; and Dwight Eisenhower, who had a heart attackin 1955, and then a strokein 1957.

Presidents will, due to ego or a sense of duty, often do anything to hide their incapacities from the public, and even their own cabinet members. Cleveland essentially disappeared for an entiresummer, undergoing two procedures and being fitted with an artificial jaw. (When a letter was published in thePhiladelphia Pressdetailing the operations, it was called a "hoax.") According to Feerick, the first operation took place "while Cleveland was unconscious and strapped to a chair propped up against the yacht's mast." Wilson's condition was hidden from the public, from Congressand from members of his cabinet. Feerick points out thatfrom that time "until the inauguration of Warren G. Harding on March 4, 1921, the country was without the services of an able President." Before running for his fourth term, FDR is said to have made his own new deal with his physician to simply not tell him any bad news.

The need for more clarity as to presidential succession was ultimately prompted by the assassination of John F. Kennedy and the need for a protocol for naming a new vice president once the current vice president had assumed the White Hous. Feerick writes: "Despite vacancies totaling more than thirty-seven years, no serious effort was made to devise a means for filling a vice presidential vacancy until after the assassination of President Kennedy."

The 25th Amendment, written and adopted in 1965 to address this issue, was ratified by the necessary 37 states in February 1967. But the question about what constitutes "inability" remained it was purposely not defined, allowing for interpretation of how a president could become unable to carry out his duties, including due to mental illness.

Sections 1 and 2 deal with succession of the vice president; sections 3 and 4, with the question of inability to carry out the duties of the office.

Section 3 allows for a president who is cognizant of his own impairment to personally inform Congress in writing that he is unable to carry out his duties. Perhaps one might stretch the interpretation of his writing to Congress. Mightthat include writingto the worldendless missives in ALL CAPS rife with misspellings, bad punctuationand excessive use of exclamation points, all of which pointto a level of derangementfar beyond the grammatical?

Seriously, we have a person in the office of the presidency who ismentally and temperamentally unfit for serving the office, as attested to by a petition that wassigned by 350 psychiatrists and mental health experts, and delivered to members of Congress in December 2019.

Yale Medical School professor Dr. Bandy Lee, one of the three authors of the petition (and a frequent interview subject at Salon), described Trump'scontinued embrace of conspiracy theories as actually a public health issue because of his ability to draw members of the public into a "shared psychosis at the national level."

Speaking of mental health experts, Mary Trump, who is the president's niece and a clinical psychologist, and who recently published the bestseller "Too Much and Never Enough: How My Family Created the World's Most Dangerous Man," has said in recent interviews that the best thing anyone could do for Donald Trumpwould be to remove him from office.

And it's not just mental health experts who are worried. National security experts are as well. Just hours before Joe Biden gave his acceptance speech at the Democratic Convention, 73 senior national security officials, nearly all of them Republican, attested to the unfitness of the current occupant of the White House.

In the infamous "Anonymous"2017 op-edpublished inThe New York Times, a senior Trump official wrote: "From the White House to executive branch departments and agencies, senior officials will privately admit their daily disbelief at the commander in chief's comments and actions. Most are working to insulate their operations from his whims."

But in the spinning wheel of the Trump administration, many of those officials are gone now,and it is not enough(norwas it ever) to try to shield the country from his worst impulses, which have both deepened and darkened. White supremacists and QAnon followers are just fine folks to him and he openly appeals to them. He and members of his campaign staff worked, sometimes gleefully, with Russian agents to win the last election. It didn't take a three-year bipartisan investigation to tell us that; any moderately intelligent child would have come to this conclusion from the moment candidate Trump said during a press conference, "Russia, if you're listening " (No, he wasn't joking.) He has continued to make such appeals to foreign leaders to interfere in our election.

Finding himself behind in the polls, Trump'sauthoritarian impulses are running hot, and he repeatedly broadcasts his threats to bring down our democracy. He speaks privately with Russian President Vladimir Putin, who no doubt is providing guidance to an eager disciple on the dismal arts of demagoguery and authoritarian rule.

Trump not only threatens mail-in voting, he is now threatening in-person voting, saying he will be sending thugs of one sort or another to oversee matters.

There's not time enough before the election for another impeachment, and, really, what would be the point?

Like Alexandria Ocasio-Cortez, I was a bartender in New York City (in my few years trying to be an actor), and I still know when the time has come for a last call. Section 4 of the amendment provides for the vice president and a majority of principal officers of the executive departments to make a formal declaration to Congress of a president's inability to serve. It gets complicated from that point. Essentially the president can counter, and the vice president and amajority of the cabinet must then re-counter. And then two-thirds of both houses of Congress have to agree.

So, to you, Vice President Pence, secretaries Pompeo, Mnuchin, Esper, Barr, Bernhardt, Perdue, Ross, Scalia, Azar, Carson, Chao, Brouillette, DeVos andWilke:

Last call for the 25th Amendment. Do your duty. Give up on this election for the sake of having future elections in the country you profess to love, before all is lost.

We well understand that you won't. But that's not to say that it should not be done. Because it should. We cannot wait for the election, because the president himself has put the electionin peril. Thiswould give Congress one last chance to do its duty, too though at an evenhigher standard thanimpeachment, which only requires a majority in the House.

When Benjamin Franklin was asked by Elizabeth Willing Powel of Philadelphia a "lady remarkable for her understanding and wit," according to a contemporary what kind of government he had helped to found, he told her: "A republic,ifyou can keep it." Now the question must be asked again: Can we?

More here:
Last call for the 25th Amendment? Trump's Cabinet won't depose him but they should - Salon

An Egg Harbor Township man arrested on the Atlantic City Boardwalk with a gun and drugs while on parole will be held pending trial.Curtis Drinks, 24, was just released from prison in March. Since then, he has been arrested twice, Assistant Prosecutor Aaron Witherspoon told the judge at a detention hearing Wednesday.Drinks who is listed as Curtis Drakes by the state Department of Corrections was released from prison March 30, records show.He was then one of eight people arrested by Atlantic City police in July on drug charges.The latest arrest happened Friday, after Drinks was allegedly seen rolling a marijuana cigarette on the Boardwalk around South Carolina Avenue.An officer then found a gun, ammunition and drugs in his backpack, according to the charges.Drinks was cooperative with police by telling them about the gun, defense attorney Yvonne Maher noted to the judge, adding that the gun was not loaded.But there was ammunition in a sock, Judge John Rauh said.In arguing for release, Maher said her client has lifelong ties to Atlantic City and, while he had a gun, there is no indication he would use it for violence.Was he going target shooting? Rauh asked. Is it safe to say the gun was to protect him or protect his (drugs)?Drinks tried to briefly address the court, saying that his father died of COVID-19 about a month and a half after he got out of prison. I understand Im probably going to prison, he began before Rauh stopped him, noting he has a Fifth Amendment right not to incriminate himself.Candidly, I dont think youre helping at this particular point, the judge told him.While Rauh said he doesnt think Drinks is a risk not to appear, he does believe the defendant is a danger to the community.He appears to be a gentleman, but he cant get out of his own way, Rauh said. I let him go again, theres going to be a gun and somebodys going to get shot.

Link:
EHT man with gun on Atlantic City Boardwalk ordered held - breakingac.com

Earlier this month, the U.S. Court of Appeals for the Fifth Circuit held in National Coalition for Men v. Selective Service that requiring men but not women to register for the draft is compatible with the Due Process Clause of the Fifth Amendment (which reverse-incorporates the Equal Protection Clause of the Fourteenth Amendment). The reasoning is essentially that the U.S. Supreme Court in 1981 upheld male-only registration in Rostker v. Goldberg, and courts of appeals must follow Supreme Court precedents (though Professor Michael Dorf writes a persuasive critique of that reasoning here). I want to ask a different question. On the assumption that the U.S. Supreme Court takes this case, what should it do? And more narrowly, do the motives of the mens rights group pressing the equality claim bear on how the case ought to come out?

In the law, motives matter. If you fire a man because he is a man, then you have engaged in sex discrimination, even if he happens also to be an incompetent worker. The mans incompetence may go to remedy, so a court would not compel you to rehire him at the expense of your business. And offering a good reason for firing a person might even help prove that the good reason is what actually drove the termination. If the jury concludes, however, that sex or race or membership in some other protected category motivated the adverse employment action, then the employer will be liable for discrimination.

So the motives of defendants matter, but what about the people bringing the complaint? Is it important that a man or a group of men brought their lawsuit claiming sex discrimination because the man or group of men hates women? I have had at least one exchange with a man who was a regular litigant in the U.S. Supreme Court on behalf of men. He believed that giving only women the legal ability to have an abortion violated the rights of men. He argued that if either of the biological parents wants to terminate a pregnancy, he or she is entitled to do so. The position is so extreme that I had not before heard anyone articulate it as their own (as opposed to as a controversial law school hypothetical). Even this gentleman did not make the argument in court, but he did convey it to me. And though I cannot be certain, I had the impression that his disdain for women led him to believe that forcing his ex-wife to terminate a pregnancy against her will would have been morally equivalent to his ex-wife deciding to have an abortion.

Why do I bring up this story? Because sometimes people, perhaps including the man to whom I spoke, process a legal problem through a filter that asks what we (men, in this case) lose by not getting the exact same rights as they (women) do? If the answer is a lot, then some will conclude that they necessarily have suffered objectionable discrimination. In this mans case, he thought about how having a child you dont want is a major imposition, especially as it entails paying child support for at least 18 years. Given that women confronting this possibility could have an abortion and escape the financial burden, the government must extend that same escape option to men. The considerable additional harm to women if men acquire a right to abort against a womans will doesnt necessarily factor into his equation.

This myopia that tends to ask how men may be getting a raw deal compared to women seems inconsistent with what the fight for equality is about. And the mens rights movement in particular sometimes seems less interested in gender equality than in male supremacy and power over women. According to the Southern Poverty Law Center (SPLC), Warren Farrell, the father of the Mens Rights Movement and member of the Board of the National Coalition for Men (NCM), challenger of male-only draft registration, has said that [w]omen ha[ve] become too powerful and dangerous because, on top of holding sexual power over men, they c[an] then lead to mens downfall with accusations of sexual harassment and assault.

The claim that any policy regarding sexual harassment or assault should (continue to) rest on the notion that women have sexual power over men is troubling. And according to the SPLC, one of the main targets of the Mens Rights Movement has been the Violence Against Women Act of 1994 (because it, like the scourge at which it aims, disproportionately concerns women). The rhetoric of the Mens Rights Movement gets a lot more graphically violent and sexually explicit than the use of the phrase sexual power conveys, so consider the above a G-rated introduction. When NCM challenges male-only draft registration, it accordingly seems unlikely that the group cares about promoting gender equality.

The motive of a complaining party generally has no legal bearing on whether that party may sue or whether its substantive position is likely to succeed on the merits. If a case is meritorious, then the complainant can win, no matter how odious the plaintiff and its motives. Some of the most important free speech precedents involved racist and antisemitic plaintiffs hailing from neo-Nazi groups and the Ku Klux Klan (sometimes represented by Jewish lawyers). And in the criminal procedure area, nearly every significant protection against unreasonable search and seizure involved a proponent charged with a serious crime. Ernesto Miranda (a dead ringer for Al Franken) was convicted (twice) of rape and persuaded the Court to require the now-famous warnings in advance of custodial interrogation. The laws indifference to why a plaintiff or petitioner has brought a case may therefore be quite useful.

On the merits, the discriminatory draft registration requirements are suspect. In addition to dividing people on the basis of sex, the exclusively male draft registration reinforces sex-role stereotypes. What could be more stereotypically male, after all, than going off to war, fighting against an adversary, and using lethal force against the enemy? And the reason that women in the past have had to stay behind was at least in part to take care of the children while keeping the home fires burning, both part of the female stereotype. When a type of sex inequality reinforces stereotypes, it would seem that there is a strong case for eliminating the sex line. The Fifth Circuit upheld the statute because Rostker remains good law. That observation, though true, however, does not stop the Court from overruling or distinguishing Rostker now.

But why is a mens rights group challenging the line at all? In one sense, it sounds like a feminist venture because NCM is attempting to invalidate an invidiously discriminatory, stereotype-confirming line. And yet. It seems perhaps likely that NCMs members have no interest in military service. They may hope that they can eliminate draft registration altogether because Congress would prefer no registration at all than registration of women. And if Congress does decide to require registration from men and women alike, this move would add the entire population of eligible women to those currently available for a future draft. In other words, it is quite possible that this group simply wants to add women to the ranks of cannon fodder, thereby reducing the chances that a man would have to fight if registration leads to a draft.

The mens rights groups own reasons for bringing the case are perhaps offensive but ultimately immaterial. Because there is merit to their petition, I ambivalently support petitioners in this case. For the same reason, I would question the utility of standing doctrine for artificially limiting the universe of potential plaintiffs bringing meritorious claims. The best arguments for a position are no less likely to emerge when a talented attorney represents someone with the wrong sort of commitment to their position than they are when the client happens to have the right kind of skin in the game.

Read this article:
Drafted and Shafted: Who Should Complain About Male-Only Registration? - Justia Verdict

The American Civil Liberties Union has filed a lawsuit against the Trump administration on behalf of Black Lives Matter protesters in Portland, Oregon, who say they were shot with rubber bullets and pepper balls, hit with pepper spray, beaten with batons, and arrested and detained unlawfully.

In the lawsuit over federal agents' conduct during July protests in Portland, the ACLU is asking for monetary damages and a judgment that the administration and the federal agents violated the Constitution and federal statutes.

Filed against President Donald Trump and acting Homeland Security Secretary Chad Wolf, the lawsuit pertains to Operation Diligent Valor, which involved sending more than 100 federal law enforcement officers to Portland in an attempt to suppress Black Lives Matter protests in the city.

Andre Miller, a 36-year-old facilities and warehouse manager from Portland, said federal officers shot him in the head with a tear gas canister during a protest on July 22.

The protests in Portland gave me a way to voice my concerns as a Black Oregonian, and were a place where my family found community, Miller said in a statement. The federal agents that came to Portland called us 'thugs,' and attacked protesters night after night. But they wont stop us from working to make our city and state better for Black people.

The complaint alleges that federal officers, who were heavily armed and clad in military-type camouflage or dark uniforms, used excessive force, facilitated illegal detentions of protesters, and violated protesters First, Fourth, and Fifth Amendment rights.

According to the complaint, federal agents used brutal tactics against protesters, including shooting them in the head and body with less lethal impact munitions and pepper balls, spraying them directly in the face with pepper spray, shoving them to the ground, hitting and beating them with batons, firing massive clouds of tear gas at them, and, in some instances, arresting and detaining them without any lawful basis.

During Operation Diligent Valor, tens of thousands of federal agents were sent to cities, including Portland, Chicago, and Albuquerque, New Mexico, to guard government buildings and Confederate statues. As a result, officers in plain clothes and unmarked vans drove through cities like Portland and arrested and detained demonstrators without probable cause, according to protesters.

James McNulty, a 42-year-old educational department manager at a university hospital in Portland, said he was shot with rubber bullets and pepper balls without warning as he tried to escape tear gas. Photographs included in the complaint show that the rubber bullets "pieced his skin, fat layer, and at least one layer of muscle."

"President Trump, Chad Wolf and this administration have attempted to silence a movement that dares to realize the American dream of a nation where everyone, not just white people, can live free, Kelly Simon, interim legal director of the ACLU of Oregon, said in a statement. This lawsuit seeks to hold the Trump administration accountable for its dangerous and profoundly unconstitutional actions in Portland. Black lives matter.

Read the rest here:
The ACLU Is Suing The Trump Administration Over Its Repression Of Portland Protests - BuzzFeed News