Monthly Archives: March 2022

A juror in Ghislaine Maxwells criminal trial who apparently did not disclose childhood sexual abuse during jury selection may receive immunity to testify before the judge deciding whether the verdict will stand.

Prosecutors said in a submission to US district judge Alison J Nathan on Wednesday that they were in the process of seeking approvals to offer immunity to the man to compel his testimony at a hearing next Tuesday. They said the immunity offer was considered after the jurors lawyer told the judge that his client planned to invoke his fifth amendment privilege against self-incrimination at the hearing.

Thejuror, who is named Scotty David, was on 24 February ordered to appear in court for questioning about his answers on a screening questionnaire for then-prospective jurors.

Davids completed questionnaire, which was made public last week, shows that he marked the no box in response to the question that asked: Have you or a friend ever been the victim of sexual harassment, sexual abuse, or sexual assault?

The fact that David apparently marked no has spurred extensive controversy as he has claimed in post-trial interviews that he was victimized in his youth.

The British former socialite Maxwell was convicted on 29 December on sex trafficking and other related charges for facilitating financier Jeffrey Epsteins sexual abuse of minor girls, some just 14 years old.

Epstein, a convicted sex offender whose associates once included rich and powerful figures such as Prince Andrew, was apprehended in July 2019 for sex trafficking of minor teens. Epstein killed himself about one month later while jailed in Manhattan awaiting trial.

The controversy surrounding David took off after Maxwells trial.

David claimed in media interviews that he endured sexual abuse in childhood. David said that he told other jurors about this abuse enabling them to understand facts from a victims perspective. When those reports emerged, prosecutors asked Nathan to conduct an inquiry into his comments. Maxwells legal team made that request shortly thereafter.

Nathan agreed to do so, writing in her recent decision: Following trial, Juror 50 made several direct, unambiguous statements to multiple media outlets about his own experience that do not pertain to jury deliberations and that cast doubt on the accuracy of his responses during jury selection.

She said: Juror 50s post-trial statements are clear, strong, substantial and incontrovertible evidence that a specific, non-speculative impropriety namely, a false statement during jury selection has occurred.

In a letter to Nathan filed on Wednesday morning, Davids lawyer, Todd Spodek, said: I write to inform the court that Juror 50 will invoke his fifth amendment privilege against self-incrimination at the hearing.

Later on Wednesday, Maxwells attorney Bobbi Sternheim wrote to the judge, saying Spodek should explain why his client wants to assert the fifth amendment and prosecutors should tell why they are willing to provide immunity to the juror. She noted that the juror had said publicly that he answered all questions honestly.

Prosecutors responded shortly thereafter, saying in a letter that they would try to compel Davids testimony.

The government writes to notify the court that it is in the process of seeking internal approval to seek an order compelling Juror 50s testimony at the hearing, they said. The government will, subject to internal approval, submit a proposed order to the court in advance of the hearing.

Defense lawyers asked the judge to toss out the verdict based on the jurors revelations and order a new trial. They said if she did not do so, she should question other jurors as well, especially after a second juror reportedly revealed post-trial a history of sex abuse. And they asked to explore Davids online and email communications.

But Nathan said last week she would limit the inquiry to her posing questions to David about his answers to the two questions she deemed relevant.The rest of the requests, she said, were vexatious, intrusive, unjustified, and a fishing expedition.

Link:
Ghislaine Maxwell trial juror may receive immunity to testify - The Guardian

The Tech Executive-1 in John Durhams indictment of a Democratic cybersecurity lawyer testified in a lawsuit that he had invoked his Fifth Amendment rights when asked to testify by the special counsel.

Rodney Joffe, former senior vice president at Neustar, coordinated in 2016 with Clinton campaign lawyer Michael Sussmann, who was indicted last year for allegedly concealing his clients, including Hillary Clinton's campaign and Joffe, from the FBI in September 2016 when he pushed debunked claims of a secret back channel between the Trump Organization and Russia's Alfa Bank.

Alfa Bank filed a John Doe lawsuit and deposed Joffe in February. A common refrain from Joffe was: As a result of the ongoing investigation of the Office of the Special Counsel, on the advice of my counsel, Im going to decline to answer the question on the basis of my rights under the Fifth Amendment to the Constitution.

They did serve me with a grand jury subpoena, and I did invoke my Fifth Amendment rights, Joffe said, saying that the subpoena was for testimony and documents and that the subpoenas came after a request for an interview.

Joffe said Sussmann became an attorney for Neustar around 2010, and it continued until September when the indictment occurred. He pleaded the Fifth on whether Sussmann ever represented him personally. Joffe said he retired in mid-September.

Sussmann pleaded not guilty, with Durham revealing last month he has evidence Joffe exploited DNS internet traffic at Trump Tower, Donald Trumps Central Park West apartment building, and the Executive Office of the President.

CLINTON CONDEMNS 'CONSPIRACY THEORIES' RELATED TO DURHAM INVESTIGATION

Durham said in October that Joffe exploited his own companys access to the sensitive internet data of a high-ranking executive branch office of the U.S. government, both before and after the Presidential election." Joffe pleaded the Fifth when asked to identify the executive office. Joffes attorney said "that should not be interpreted as an admission that the ... allegations, which are just allegations in the indictment, are accurate.

Joffe said he had never heard of the Alfa Bank allegations prior to the summer of 2016.

When asked if it was possible to cause pings from a DNS perspective to make it look like a communication, he said, I have no idea. He denied manipulating the DNS data in the Alfa Bank allegations or creating false pings.

Durhams indictment of Sussmann alleged Joffe tasked researchers with mining internet data to establish a narrative tying then-candidate Trump to Russia. Durham said Joffe indicated he was doing this to please Clinton campaign VIPs."

Joffe said he was not paid by Clinton's campaign. He declined to say whether Clinton campaign lawyer Marc Elias or Fusion GPS were present when he discussed the Alfa Bank allegations with Sussmann in July 2016 and said he had never heard of Fusion before 2016.

Durham said that, shortly after Clintons loss, Joffe wrote in an email: "I was tentatively offered the top [cybersecurity] job by the Democrats when it looked like they'd win. I definitely would not take the job under Trump."

Joffe testified, Ive never been interested in politics. Ive never been involved in politics. ... I havent donated to any parties or given any kind of benefit to any parties, but I certainly over the last few years have had an interest in the politics of the country I live in. Joffe pleaded the Fifth on his thoughts about Trump.

He appears to have referred to himself as Max in a 2018 article pushing the Alfa Bank claims. Max described himself as a John McCain Republican. Joffe declined to say whether that was him.

Joffe claimed he did not anticipate holding any job in the Clinton administration and was not offered the top cybersecurity job if Democrats won. Joffe said he had no possible interest in joining Clinton's administration.

He denied knowing British ex-spy Christopher Steele and said he "had no firsthand knowledge" when asked if he knew Sussmann met with Steele about Alfa Bank claims.

Joffe also declined to answer which businesses he owns, and whether he knew the identity of a person dubbed "Originator-1," who Durham says collaborated with Joffe on the Alfa Bank claims. It is April Lorenzen of Zetalytics.

Joffe said Neustar has provided DNS data outside the company in the past, including "a set of DNS data that has no terms and conditions around it, and that data is provided to a number of parties including security researchers. He declined to say whether he believed DNS data is nonconfidential.

Joffe also said, I take the Fifth, when asked if he knows Daniel Jones, lead author of the Senate Intelligence Committees report on the CIAs interrogation program who founded the Democracy Integrity Project in January 2017. Tax records show he funded Steele, Fusion, and others.

Court records show Jones was asked by the Senate Armed Services Committee in 2017 to look into Alfa Bank allegations, and his 2018 report concluded that "there was a special relationship between the Trump Organization server and servers associated with Alfa Bank.

Cybersecurity expert Robert Graham wrote that "the allegation that this proves a secret connect between Alfa Bank and a Trump server is clearly false.

Joffe said Kirk McConnell is the only person with the Senate committee he could recall.

CLICK HERE TO READ MORE FROM THE WASHINGTON EXAMINER

The special counsel has said Sussmann claimed to another agency, believed to be the CIA, in February 2017 that data he had access to demonstrated that Trump and/or his associates were using supposedly rare Russian-made wireless phones in the vicinity of the White House. Durham found "no support for these allegations." Joffe declined to answer whether Neustar provided the Russian phone data to university researchers.

Joffe testified he had gone through chemotherapy and used the drug Prednisone, claiming: I still have, you know, some effect with memory so, you know, my memory during the period when I was ill, which was from 2012 through 2017.

Original post:
'Tech Exec-1' says he pleaded the Fifth to John Durham's grand jury - Washington Examiner

Cade Cothren, speaking on phone, attends a meeting with lawmakers and fellow staffers on the balcony ouside the House chamber on April 29, 2019. (Erik Schelzig, Tenenssee Journal)

Cade Cothren, the onetime chief of staff to former House Speaker Glen Casada, intends to invoke his Fifth Amendment right against self incrimination at a Registry of Election Finance hearing on Wednesday, the Chattanooga Times Free Press reports.

Cade Cothren objects to and will not respond to your subpoena, his attorney, Cynthia A. Sherwood, wrote to the Registry last month. This objection is based on the grounds that these subpoenas were made in bad faith and are an abuse of process.

Furthermore, she added, Mr. Cothren invokes his Fifth Amendment privilege against self-incrimination.

The probe involves the role of the Faith Family Freedom Fund in attacking then-Rep. Rick Tillis of Lewisburg during his Republican primary in 2020. The PACs treasurer testified to the Registry by telephone in January that she had registered the group on behalf of Cothren, whom she had been dating at the time. Friedopfer said she had been young and dumb and didnt know she would be liable for the PACs activities. Cothren advised her not to respond to a Registry audit of the PAC, she said.

The Registry responded by issuing subpoenas of Cothren, Casada, and the winning candidate in the 2020 race, Rep. Todd Warner (R-Chapel Hill).

Read more:
Cothren to take the Fifth in Registry probe TNJ - TN Journal

CASE PREVIEW ByHoward M. Wasserman on Mar 1, 2022 at 10:24 am

Egbert v. Boule is a lawsuit seeking damages for alleged constitutional violations by a Border Patrol agent. (DCStockPhotography via Shutterstock)

The Supreme Court on Wednesday will consider the continued vitality and expansion of lawsuits for damages against federal officers under Bivens v. Six Unknown Named Agents. Egbert v. Boule considers whether to extend the Bivens cause of action to First Amendment retaliation claims and Fourth Amendment claims arising from immigration enforcement near the U.S.-Canada border.

Robert Boule is a U.S. citizen who owns and runs the Smugglers Inn, a bed-and-breakfast abutting the Canadian border in Blaine, Washington. The town is a reputed locus of cross-border criminal activity, and the Smugglers Inn purportedly attracts drug traffickers and people seeking to illegally cross the border.

Blaine, Washington (Arkyan via Wikipedia)

In 2014, Erik Egbert, a Customs and Border Patrol agent, approached Boule in town and asked about guests at his inn. Boule told Egbert of a guest who had flown from Turkey to New York the previous day and was flying to Washington and driving to the inn. Later that day, Egbert followed the vehicle transporting the guest onto the inns driveway and tried to speak with him. Boule sought to intervene and asked Egbert to leave his property. Egbert twice shoved Boule out of his way, pushing him to the ground. After confirming that the guest was lawfully in the country, Egbert and two other agents (who had been called to the scene when Boule confronted Egbert) left. Boule complained to Egberts superiors, after which Egbert allegedly contacted the Internal Revenue Service and state agencies, resulting in a tax audit and investigations of Boules activities.

Boule filed a Bivens lawsuit in federal district court, alleging that Egbert retaliated against him for complaining about Egberts behavior in violation of the First Amendment and used excessive force in violation of the Fourth Amendment. The district court granted summary judgment in favor of Egbert. The U.S. Court of Appeals for the 9th Circuit reversed, and the Supreme Court granted review.

Subsequent to the events giving rise to this case, Boule pleaded guilty to aiding and abetting violations of Canadian immigration law over human smuggling and was sentenced to time served.

The judicially created Bivens cause of action functions as the counterpart to 42 U.S.C. 1983, allowing suits for damages against federal officers for past constitutional violations. The Supreme Court has allowed three Bivens claims to proceed a Fourth Amendment claim against law enforcement, a Fifth Amendment due-process employment-discrimination claim, and an Eighth Amendment claim involving medical care in prison. But the court has described Bivens actions as disfavored judicial activity, rejecting recent claims in Ziglar v. Abbasi against high-level executive officials enacting post-9/11 national-security policy and in Hernandez v. Mesa against a Border Patrol agent over a cross-border shooting of a Mexican national.

Recent cases establish a two-step inquiry. First, the court asks whether the case involves an extension of Bivens into a new context that is different in a meaningful way from previous Bivens cases decided by this Court, even if that extension is modest. If the case extends Bivens into a new context, the court considers special factors that counsel hesitation about granting the extension. Central to this analysis is the presumption that Congress, not the courts, should decide whether a cause of action should be available against federal officers or on a set of facts.

Egbert begins by urging the court to categorically reject future extensions of Bivens. While the court has not closed the door to extensions, he argues that judicially created causes of action are relics of a discredited view of federal courts authority, reflected in the Supreme Courts refusal to recognize a new Bivens claim in 10 cases over 40 years. Egbert argues that courts should hesitate before granting a Bivens extension because every extension threatens the separation of powers by usurping congressional power to create private causes of action, to evaluate the far-reaching policy involved in allowing people to sue for money damages, and to make policy judgments about how best to hold federal officers accountable for constitutional misconduct. He argues that extending Bivens in this or any new context breathe[s] new life into doctrines this Court has extinguished.

If Bivens extensions remain permissible, Egbert argues that both claims in this case entail extensions into new contexts, and special factors counsel hesitation, compelling the court to reject both.

As for the First Amendment retaliation claim, the context is new because the court has never recognized a First Amendment Bivens claim, particularly not in the context of retaliation by Border Patrol agents along an international border. A host of special factors counsel hesitation. Egbert argues that retaliation claims (in which lawful action becomes unlawful if done for the wrong reason) are nebulous and amorphous, producing difficult and complex litigation. Claims against Border Patrol agents working near the border raise national-security and immigration-enforcement concerns, different from claims against other federal agents. And a plaintiff in Boules position has alternative remedies, including claims under the Privacy Act, proceedings through the IRS and federal tax code, state tort law, and federal administrative investigations. These remedies reflect congressional consideration of the best way to deter constitutional violations by federal officers, and none involves a claim for damages based on retaliation for speech.

Fourth Amendment claims are available, as Bivens itself involved a Fourth Amendment violation for unlawful search and excessive force. But Egbert argues that the context of this case involves a new class of defendants (Border Patrol agents), a new location (an area along the border), and a new enforcement scheme (the application of immigration laws to foreign nationals). Similar special factors counsel hesitation, particularly the national-security concerns arising from claims challenging enforcement of immigration laws. And Congress provided for alternative remedies, including a claim against the United States under the Federal Tort Claims Act (which Boule began but did not pursue) and complaints to the Department of Homeland Security triggering employment sanctions for the misconduct.

The United States appears as amicus and has been given argument time. Unlike Egbert, the government does not argue that courts cannot extend Bivens. But it insists that extensions are unwarranted in this case.

Like Egbert, the government emphasizes that the Court has never recognized a First Amendment Bivens claim and that this Fourth Amendment claim is meaningfully different in several respects from the claim recognized in Bivens. Egbert is a Border Patrol agent and was investigating a foreign national who might have been involved in cross-border smuggling or immigration violations. It occurred steps away from an international border in an area known for illegal smuggling of persons, drugs, and money. The government insists these facts implicate an element of national security absent in Bivens.

The government identifies a similar list of special factors counseling hesitation and compelling the court to leave to Congress the choice to create a cause of action. It highlights past failure to extend Bivens to First Amendment claims, then emphasizes the special concerns for extending to retaliation claims against law enforcement. And it identifies a series of available alternative remedies for Egberts alleged misconduct: complaints through the IRS for false reporting of tax issues, a claim under the Privacy Act for disclosure of private information, state tort claims, administrative claims through the Customs and Border Patrol, and departmental disciplinary proceedings.

Boule filed his brief under seal with the courts permission, leaving a redacted brief publicly available.

Boule emphasizes that Bivens is not dead or long-buried, extinguished, or demolished, contrary to Egberts arguments. Egberts cert petition asked the court to reconsider Bivens, but the court declined to review that issue. And Boule argues that Abbasi did not reject Bivens as a relic or retreat from all applications of Bivens. Rather, Abbasi left room for cases that are the same or trivially different from the courts prior cases.

Boule argues that is this case. The Fourth Amendment claim involves an unlawful search and seizure by a federal officer on private property, materially indistinguishable from Bivens. And this lawsuit challenges conduct by a ground-level official on U.S. soil against a U.S. citizen at his dwelling. Boule argues that this case does not involve national-security policy or the actions of an officer stationed on the border trying to prevent unlawful entry into the United States. Boule also argues that he has no alternative remedies, as the Federal Tort Claims Act does not replace Bivens and administrative procedures do not provide substantive remedies.

Without holding so, Boule argues, several cases have assumed that First Amendment claims, including First Amendment retaliation claims, are cognizable under Bivens. And the court has established that the First Amendment prohibits government officials from retaliating against persons for speaking out about government misconduct. As with the Fourth Amendment claim, this claim does not implicate separation of powers; it involves ground-level, non-policymaking conduct by an individual officer. Moreover, Egberts alleged retaliation has no nexus to the conduct of agents at the border. Rather, Boules claim involves conduct away from the border, following completion of the initial encounter, when Egbert contacted numerous agencies to investigate Boule. Boule argues that this is not the typical complicated retaliation claim in which a search, arrest, or prosecution may have been retaliatory or may have been independently justified, requiring a court to parse the officers state of mind and the line between lawful and unlawful conduct. Instead, his is a straightforward retaliation claim, in which the causal connection between Egberts animus and Boules injury is obvious and not bound in complex inquiries into causation or probable cause.

Here is the original post:
Border agents, the First Amendment, and the continued vitality of Bivens - SCOTUSblog