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Category Archives: Fifth Amendment

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

Posted: October 24, 2019 at 10:41 am

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Posted: at 10:41 am

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

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

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

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

Lewis has maintained that their relationship was completely consensual.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The defense took over shortly before noon.

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

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

Willis told the judge he intended to testify.

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

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

The court agreed to that for time being.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

This suggestion led to the budget meeting in Charlotte.

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

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

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

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

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

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

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

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

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

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

Lewis said he and Nabors

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Posted: at 10:41 am

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

IICA to conduct self-assessment test for independent directors

The move ensures the competence of the director

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

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

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

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

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

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

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

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

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Report: 2016 messages suggest Boeing misled FAA on 737 MAX – The Mercury News

Posted: October 19, 2019 at 1:44 am

By David Sharpton | Reuters

WASHINGTON Boeing Co turned over instant messages from 2016 between two employees that suggest the airplane maker may have misled the Federal Aviation Administration about a key safety system on the grounded 737 MAX, according to documents seen by Reuters.

The FAA confirmed Friday that Boeing told it a day earlier about internal messages it had discovered some months ago that characterize certain communications with the FAA during the original certification of the 737 MAX in 2016.

The FAA said it found the messages concerning and is reviewing this information to determine what action is appropriate. It prompted a letter from FAA Administrator Steve Dickson to Boeing Chief Executive Dennis Muilenburg demanding an immediate explanation for the delay in turning over the documents.

A person briefed on the matter said Boeing failed to turn over the documents to the FAA for four months and that the Justice Department is also in possession of the messages.

The Boeing internal messages raised questions about the performance of the so-called MCAS anti-stall system that has been tied to the two fatal crashes in five months.

The messages are between the MAXs then-chief technical pilot, Mark Forkner, and another Boeing pilot, the sources said, and raised questions about the MCASs performance in the simulator in which he said it was running rampant.

Forkner has since left Boeing. The Seattle Times reported in September that Forkner repeatedly invoked his Fifth Amendment right to not turn over documents subpoenaed by the Justice Department.

Boeing said in a statement the company brought to the Committees attention a document containing statements by a former Boeing employee.

Forkner said in one text message, I basically lied to the regulators (unknowingly). The other employee responded that it wasnt a lie, no one told us that was the case of an issue with MCAS.

Forkner responded soon after: Granted I suck at flying, but even this was egregious.

The FAA plans to turn over more communications from Forkner to Congress later on Friday, sources said.

Boeing is revising the 737 MAX software to add more safeguards and require the MCAS system to receive input from two key sensors.

The FAA reiterated that it is following a thorough process, not a prescribed timeline, for returning the Boeing 737 MAX to passenger service. The agency will lift the grounding order only after we have determined the aircraft is safe.

Earlier this week, Southwest Airlines Co delayed the return of the plane to its flight schedule until February.

Separately, the U.S. Senate Commerce Committee confirmed it will question Muilenburg at an Oct. 29 hearing, one day before a House of Representatives panel is scheduled to question him.

Boeing shares fell 3.9% after the Reuters report, helping to drag down the Dow Jones industrial average to a session low.

Federal prosecutors aided by the FBI, the Department of Transportations inspector general and several blue-ribbon panels are investigating the 737 MAXs certification.

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Driver in road rage incident gets a year of probation – Gloucester Daily Times

Posted: at 1:44 am

A Gloucester woman caught on cell phone video tussling with a Beverly woman on Route 128 in Danvers during a road rage incident in March will be on probation for a year.

Catherine Bergen, 33,admitted tosufficientfacts to be found guilty on four charges of assault, assault and battery, disorderly conduct, and reckless driving, during a hearing Friday in Salem District Court.

Do you agree those are true? asked Salem District Court Judge Randy Chapman.

Yes, said Bergen in a small voice afterAssistant District Attorney Michael Varone read out a summary of facts. In doing so, Bergen, with her attorney Stephen Neyman by her side, waived her right to a trial.

Chapmancontinued the charges without a finding.He placed on filea charge of stopping or parking on a highway, which is a civil infraction.

Prosecutors agreed toreduce the original charge of assault and battery on a person 60 and over, a felony, to a lesser charge of assault and battery, which is a misdemeanor.

Bergen agreed to a plea deal and the prosecutors recommendation of oneyear of probation and 40 hours of community service. She also agreed toenter and complete theState Courts Against Road Rage course. She was also ordered to paya $50 victim/witness assessment and $50 a month probation fee.

Bergen declined to make a statement in court, and declined comment to a reporter outside of the courtroom. The other woman involved in the March 29 incident, Susan Lavoie, 64, of Beverly, was recently found not guilty by a jury after a one-day trial last month, and it was noted during thehearing she also did not wish to make a statement.

In that earlier trial, Bergen had invoked her Fifth Amendment right against self-incrimination and did not testify. DuringLavoies trial, witnesses testified that it appeared Bergen was the initial aggressor after coming to a dead stop in the right-hand travel lane of Route 128 south near Conant Street and Exit 21, close to the Beverly-Danvers line.

According to Trooper Scott Hayes report, he had been dispatched that day for multiple calls of cars stopped in the right-hand travel lane, and that two women had left their cars and were fighting.

The cars had left by the time the trooper and Danvers police arrived.

Later, Hayes learned that Katherine Deleo, of Gloucester, had captured a portion of the incident on her cell phone, and that other videos were circulating on news channels and on social media.

Hayes was able to identifythe first car stopped in the right lane as a 2015 Subaru Outback registered to Bergen, andthe second as a 2013 Nissan Altima registered to Lavoie. A third car stopped behind these two was that of a good Samaritan.

The video shows Bergen outside her car and Lavoie stumbling as she gets out of her car, the trooper said in his report.

The two are then standing outside their vehicles in the right travel lane as traffic is actively passing them on both sides and they appear to be slapping and grabbing one another, Hayes said in his report. Motorists were honking at them and others were yelling at them to get out of the road as traffic piled up.

Hayes, in his report, said the incident was triggered by a lane change in which the two vehicles nearly made contact but never did.As a result, Bergen ... stopped abruptly in the right travel lane and approached the drivers side window of Lavoie ... who stopped behind her. Bergen then began to hit the drivers side window and door with her hand. Lavoie then exited her vehicle, at which point the two engaged in a physical altercation. All witnesses stated that Bergen appeared to be the instigator.

Varone, the prosecutor, said witnesses saw Bergen had suddenly slammed on her brakes in front of Ms. Lavoies car.

Lavoie called state police hours after seeing herself on the news. She was interviewed by Hayes and toldhim she had inadvertently cut off Bergens car, whichthen slammed on its brakes and forced Lavoie to do the same to avoid a collision.

The operator of (the Subaru) then approached the drivers side window and started punching same, while yelling and swearing at her, Hayes report states. She was afraid the window was going to shatter and she had no intention of fighting with the operator of (the Subaru). She told the trooper she got out of her car in self defense though in retrospect she knew she probably shouldnt have.

Lavoie testified last month that after she opened the door, Bergen punched her, causing her to fall to the ground before she caught herself. She testified she tried to grab Bergens hands to keep her from hitting her.

Ethan Forman can be reached at 978-338-2673, eforman@gloucestertimes.com or on Twitter at @TannerSalemNews.

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Driver in road rage incident gets a year of probation - Gloucester Daily Times

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The Life-Changing Magic of Impeaching Donald Trump – The New Yorker

Posted: at 1:44 am

Over the past five years, millions of Americans have ascended to a higher plane of fulfillment by tidying up their homes. By talking to our possessions, one by one, and asking if they spark joy, we have achieved a kind of contentment we never dreamed possible.

Now its time to tidy up a residence that belongs to all of us: the White House.

At first, this seems like a daunting task. After all, the White House has a hundred and thirty-two rooms. There is much culling to be done.

But theres no reason to despair. Many useless things have already been hauled away. Reince Priebus, John Kelly, Steve Bannon, Kirstjen Nielsen, Michael Flynn, John Bolton, Sean Spicer, Hope Hicks, Sarah Huckabee Sandersnone of them sparked joy. And now they are all gone. And Anthony Scaramucci, who sparked joy as briefly as those paisley pants you immediately regretted buying at H&Mhe is gone, too.

Clearly, though, more culling remains to be done.

We must look at Donald Trump and ask ourselves, Does this spark joy? And, although the answer to that question might be somewhat different in Russia, North Korea, and Turkey, the answer here is a resounding no.

Remember how, once you tidied up your dwelling, you discovered hidden treasures buried under all of those needless possessions? Well, once that garish orange thing that sparks no joy has been removed from the Oval Office, youll be amazed what youll find underneath. Things you forgot you even had, like democracy.

In the video above, from last weekends New Yorker Festival, I speak about the happiness we can attain by decluttering the country of Trump. Much like Marie Kondo, the authors of the United States Constitution gave us a unique tool for improving our surroundings: impeachment. And the Twenty-fifth Amendment is pretty good, too.

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The Life-Changing Magic of Impeaching Donald Trump - The New Yorker

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Trump Threatens To Sue CNN Over Coverage 10/21/2019 – MediaPost Communications

Posted: at 1:44 am

A lawyer representing President Donald Trump and his campaign are threatening to sueCNN over its coverage of the current administration.

Never in the history of this country has a President been the subject of such a sustained barrage of unfair, unfounded, unethicaland unlawful attacks by so-called 'mainstream' news, as the current situation, attorney Charles Harder writes to CNN President Jeff Zucker.

In the letter, Harder accuses CNN ofviolating the Lanham Act, which prohibits trademark infringement as well as false advertising.

My clients intend to file legal action against you, to seek compensatory damages, trebledamages, punitive damages, injunctive relief, reimbursement of legal costs, and all other available legal and equitable remedies, to the maximum extent permitted by law, Harder writes.

Harder cites a recent Project Veritas video, in which an employee alleges that Zucker is biased against Trump.

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Your own employees appear to state that CNN is focused on trying to'take down President Trump,' driven by a 'personal vendetta' that Mr. Zucker purportedly has against him, rather than reporting the news in an objective manner, the letter states.

Harder previously represented wrestler Hulk Hogan in his successfulinvasion-of-privacy lawsuit against Gawker, which drove the company into bankruptcy.

It's not clear whether Trump actually plans to follow through with a lawsuit. But some observers arealready expressing skepticism that such a suit would get very far.

If the legal claims in his letter are any indication, I would think CNN will want him to sue and have a court decide this one, Neal Katyal, actingU.S. Solicitor General during the Obama administration, says on Twitter.

Bob Corn-Revere, a First Amendment attorneywho is currently representing Pen America in a lawsuit against Trump, tells MediaPost that Harder's letter doesn't spell out the basis of any potential claims against CNN.

The presidentis going to bring a Lanham Act claim against CNN because he doesn't like their reporting? he says. It's really hard to follow the thread of it.

He adds that even a validLanham Act claim wouldn't override the First Amendment, which prohibits the government from censoring news organizations.

Government officials don't get to use the power of civil law tosilence critics, he says.

If Trump does sue, it won't be the first time CNN and the White House have faced off in court. Last year, CNN took the administration to court after the WhiteHouse revoked journalist Jim Acosta's press credentials.

CNN argued in a lawsuit filed Tuesday that Acosta's First Amendment and Fifth Amendment rights were violated by the decision to revokehis press pass. U.S. District Court Judge Timothy Kelly in the District of Columbia, a Trump appointee, sided with CNN. Kelly ordered the credentials restored on the grounds that the White Housefailed to give Acosta due process of law when it summarily revoked his press pass.

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EDA’s amended lawsuit approved | Nvdaily | nvdaily.com – Northern Virginia Daily

Posted: at 1:44 am

FRONT ROYAL A variety of issues were tackled regarding the Front Royal-Warren County Economic Development Authoritys civil case during a hearing Thursday in Warren County Circuit Court hearing.

Judge Bruce Albertson approved a request to amend the authoritys complaint, which outlines a series of alleged embezzlements during former EDA Executive Director Jennifer McDonalds tenure. This amendment increased the alleged damages from $17.6 million to $21.3 million and added six defendants.

The defendants added were: McDonalds husband Samuel North; McDonalds mother Linda Hassenplug and her Little Rugratz Daycare LLC; former EDA Administrative Assistant Michelle Missy Henry; former B&G Goods store owner William Lambert; and Jesse Poe, who the complaint describes as an associate in the financial affairs of McDonald and Henry.

Albertson denied the EDAs request to add April Petty, who once sold a house with McDonald as her real estate agent, as a defendant.

William Schmidheiser, Pettys lawyer, reasserted the argument outlined in a recently filed motion that Petty is a victim of McDonalds embezzlement rather than a co-conspirator. He asked the court to not include Petty as a defendant in the case without further investigation.

Albertson said he will consider the EDAs request to add Petty as a defendant in two to three weeks.

Also during the hearing, Albertson granted BerlikLaw lawyers Jay McDannell and Lee Berlik their request to withdraw as counsel for McDonald and her LLCs.

This comes as the EDAs amended civil suit alleges that McDonald used $10,000 of stolen money to pay the firm.

The EDAs attorneys requested that BerlikLaw turn over documents related to that payment.

McDannell said the documents should be exempt due to attorney-client privilege, which EDA attorney Cullen Seltzer said is not applicable when fraud is involved.

Seltzer added that how she pays her fees is not legal advice.

He noted two forged documents, which were entered into court during previous hearings after McDonald was criminally charged, illustrate her consciousness of guilt.

The alleged forged documents, Seltzer said, include a forged EDA resolution authorizing McDonalds real estate deals and forged EDA meeting minutes stating that McDonald disclosed her familial relations to property owners involved in a workforce housing project land dead.

Seltzer requested that BerlikLaw turn over related documentation because while he does not believe McDannell forged the paperwork, it happened and it happened somehow.

Albertson did not rule whether BerlikLaw must comply with those document requests and a decision will be made during a future hearing.

Also discussed was the recent discovery that McDonald conveyed 68 Pine Hills Road to her sister, although that property was previously seized by order of former Circuit Court Judge Clifford L. Athey.

While the EDAs lawyers argued that McDonald should be held in contempt of civil court, McDannell said McDonald did not know that was one of the properties seized. McDannell said McDonald consulted a title settlement agency regarding the land conveyance and the company did not find a lien on the property.

McDannell said this must mean that although McDonald was orally told not to sell that land, a written order was not submitted.

It was an honest mistake, he said.

McDannell added that McDonald gifted the property to her sister so it could be sold in attempts to pay legal fees.

She is under enormous financial stress. She needs to be able to pay her attorneys, McDannell said.

Albertson set an 8 a.m. Dec. 12 hearing regarding the alleged contempt. At that point in the proceedings, Berliks and McDannells withdrawal requests had been granted and McDonald was representing herself.

Albertson told McDonald that if she does not receive a written notice of the Dec. 12 hearing, she still must appear because she has been orally ordered to do so.

Before his recusal was granted, McDannell said that continuing with the civil lawsuit amid related ongoing criminal proceedings is inappropriate and a logistical nightmare as the Fifth Amendment to the U.S. Constitution grants the right against self-incrimination. Individuals indicted by a special grand jury investigating EDA-related matters include McDonald, North, Lambert, Poe and Henry, all of whom are defendants in the civil case.

McDannell added that some of the EDA board members who approved filing the civil case Tom Patteson, Greg Drescher, Mark Baker, Ron Llewellyn, Bruce Drummond and Gray Blanton have since been indicted. Each stands charged on two misdemeanor counts of misfeasance and one misdemeanor count of nonfeasance.

This is not to suggest the case should be put off forever, McDannell said.

* * *

Correction: This story has been updated to correct the last name of EDA board member Mark Baker, who was among board members who approved the filing of the civil case and who was recently indicted.

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The Fifth Amendment administration – Opinion – The Register-Guard

Posted: September 30, 2019 at 9:46 am

WednesdaySep25,2019at12:01AM

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

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

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

Larry Koenigsberg, Eugene

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Flynn pleads the Fifth, rejecting House Intel appearance: report | TheHill – The Hill

Posted: at 9:46 am

Former National Security Advisor Michael Flynn will invoke his Fifth Amendment rights rather than testify before the House Intelligence Committee, Flynns lawyer Sidney Powell said in a letter Monday, according to The Washington Examiner.

Powell, who replaced Flynns previous attorneys in June, wrote that Flynn refuses to be paraded, harassed or disparaged by Committee Chair Adam SchiffAdam Bennett SchiffLawyers express concern for whistleblower's safety Schiff says he plans to subpoena Giuliani for documents Trump demands to meet whistleblower, warns of 'Big Consequences' MORE (D-Calif.), according to the Times.

Powell has previously accused federal prosecutors of withholding evidence favorable to Flynn, who pleaded guilty to lying to the FBI about his conversations with the Russian ambassador. Flynns sentencing on the false statements charges was previously delayed to allow him to continue cooperating in the investigation into a former business partners foreign lobbying.

District Judge Emmet Sullivan, an Obama appointee, has proposed a Dec. 18 sentencing date for Flynn, while Powell has pushed for more time before sentencing, saying she needs additional time to seek a court order for the supposed exculpatory material. Powell said in early September that Flynn has no plans to withdraw from his plea deal.

The Hill has reached out to Schiffs office for comment.

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