Category Archives: Fifth Amendment

Macon County Jail

The man awaiting trial in July's Highway 169 shooting in which a youth baseball coach was killed following a "traffic altercation" in the Plymouth area can only call his lawyers now.

The judge in the case,Nicole Engisch, has granted a request to restrict Jamal Smith's phone access, after he was accused of tampering with witnesses from jail.

According to court documents filed this past week, prosecutors argued that Smith, 33, has made a number of "problematic calls" while in pretrial detention, during which he allegedly asked someone to delete his Facebook account and advised witnesses to "no longer speak with law enforcement" or to "plead the fifth amendment."

Prosecutors said the calls were made at the jail in Macon County, Illinois where Smith, a Chicago resident, was apprehended in August as well as the Hennepin County jail, where he is currently being held.

The ruling notes that Smith, who has been "on notice" since September 16 that he is not permitted to have "direct or indirect" with witnesses, tried fighting the motion to cut his phone access, arguing that doing so is not within the court's power.

But the ruling argues that, "in exceptional cases," the court does have "limited but inherent" power to restrict mail or phone access in order to protect witnesses.

Under the judge's orders, Smith is now prohibited from calling anyone but his attorneys, while the Hennepin County Sheriff's Office is authorized to use "all necessary measures" to ensure the order.

Smith was charged in September withsecond-degree murder in the July 6 death of Jay Broughton, who was gunned down during an incident on Highway 169 while driving his son home from aLittle League game.

The killing spurred a search for the suspect as well as the vehicle he was in, a light-colored SUV. Smith was ultimately arrested in Decatur, Illinois, thanks partly to a Facebook Live video recorded prior to the shooting which allegedly shows him with a gun that matches the one used in the crime.

He's being held in Minneapolis on a $3.5 million bail.

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Accused Hwy 169 shooter loses phone privileges over alleged witness tampering - Bring Me The News

Editors note The Salt Lake Tribune and the PBS series FRONTLINE have collaborated on a documentary called Shots Fired. It will air Tuesday, Nov. 23, on PBS Utah at 9 p.m. It will also be available to stream at FRONTLINEs website and at sltrib.com.

Sandy At issue in the review of every police shooting, whether its at night or in daylight, whether its an officers first shooting or third, or whether the person has a gun, a knife or no weapon at all, is one factor.

Fear.

For Utah officers to legally fire, the law says they must believe their life or another persons life is in danger. And this fear must be reasonable.

Some reform-minded law enforcement leaders and experts argue the definition of reasonable fear has been stretched by police training that focuses on worst-case scenarios and overemphasizes officer safety.

Some question how reasonable ones fear can be when decades of research have shown that the general public, including officers, are preconditioned to see racial and ethnic minorities as scarier than white people.

Utahs police trainers defend their practices, saying they have just a few days to get cadets prepared for a world of dangerous possibilities.

When a shooting does happen, it gets reviewed by prosecutors. Nearly every time, they determine the officers actions meet the legal standard.

Utah prosecutors have found police officers unjustified in 12 of the 226 shootings between 2010 and 2020. In those cases, prosecutors charged officers three times, though they eventually dropped two of the cases. In the third, a judge dismissed the matter after a preliminary hearing.

Salt Lake County District Attorney Sim Gill, an advocate for criminal justice reform, has not only handled the most police shootings in Utah over the past decade, but his office also is the one that prosecuted the three cases where officers were criminally charged. Utahs Fraternal Order of Police, a group that advocates for officers, considers him an adversary and has encouraged members to exercise their Fifth Amendment rights against self-incrimination and not give interviews in his or other prosecutors police shooting investigations. That makes it more difficult for prosecutors to determine what a shooting officer perceived or felt.

Gill has also faced harsh criticism and widespread protests from activists after ruling some controversial shootings legally justified and for not filing criminal charges in a few cases he decided were unjustified.

(Francisco Kjolseth | The Salt Lake Tribune) The Salt Lake County District Attorney's Office is damaged by protesters reacting to the ruling by District Attorney Sim Gill on Thursday, July 9, 2020, that the police shooting death of 22-year-old Bernardo Palacios-Carbajal was legally justified.

These are shootings that end in deaths. Like Dillon Taylors in 2014, when an officer was 100% convinced that it was going to be a gunfight, but Taylor was unarmed. Or the 2018 shooting of Cody Belgard, who an officer believed would start firing any minute or any second and police later found had no weapons, just a cellphone. Gill ruled both cases legally justified.

Last year, Bryan Pena-Valencia was also unarmed, but the shooting officer was convinced he had a gun.The officer wrote in a statement to investigators that he immediately felt scared because Pena-Valencia was wide eyed and kept saying, OK...

Gill determined the shooting wasnt justified, but said there wasnt enough evidence to charge the officer with a crime.

As Gill has reviewed these shootings, he told The Salt Lake Tribune and the PBS series FRONTLINE, he has come to believe that the law, the reasonable fear standard itself, should be changed to require more from police before they pull the trigger.

What is the moral expectations of our citizens? And what do they expect from law enforcement, from prosecutors, from our criminal justice system? Gill asked. And how well does that align with the outcome that that system provides? And if there is an incongruence there...that is the seeds of injustice, and we have an ethical and legal responsibility to respond to that.

In 1989, the U.S. Supreme Court ruled that a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.

Gill cites that decision as a relevant legal standard in all of his police shooting findings.

Tracie Keesee, the senior vice president of justice initiatives at the Center for Policing Equity, said in an interview that most officers begin to realize in the academy how dangerous policing can be that there is a lot to be afraid of.

The problem, she said, is that most of the scenarios cadets train with are more violent and volatile than the calls theyll take once they get a badge and a gun.

If Im a new recruit, and I am going through scenario-based training, and that scenario-based training is based on just officer-involved shootings or scenarios where the outcome was not good, then I begin to build on my fear, of what do I need to do to protect myself and to stay alive, Keesee said. Again, not saying that the job of being a police officer is not dangerous. But the question becomes one of how dangerous is it?

(Paighten Harkins | The Salt Lake Tribune) Police cadets participate in simulation training on Dec. 2, 2020, at the Peace Officer Standards and Training academy at the Salt Lake Community College Miller Campus in Sandy.

She said that, nationally, a very small percentage a New York Times analysis found about 1% of police calls are about violent crimes. The majority are general calls for help.

Since 1853, 147 Utah officers have died in the line of duty. Fifteen officers died between 2010 and 2020, and 10 were killed in homicides.

Cadets in Utah get trained at Peace Officer Standards and Training, known as POST. Training Sgt. Scott Lauritzen said cadets learn from different, often worst-case, scenarios because trainers must distill lessons learned throughout entire careers into just five days or so.

While most police officers will never fire their weapon on duty, Lauritzen said its important trainees understand they may one day need to and not hesitate if they find themselves in that situation.To put on this badge, and to put a gun on your hip, to go into somebodys house to protect them, if you havent made that decision that taking someones life may be a possibility, he said, its too late then.

Last winter, Tribune and FRONTLINE reporters observed these drills. Normally, training scenario days began with a refresher on cadets priorities: officer safety and communication.

As were going through these different scenarios, Lauritzen said, were trying to get them to understand the importance of If Im going to be safe, I have to understand everything thats going on around me.

He started one of the days by asking cadets to think about dealing with someone in a mental health crisis whether theyre suicidal, whether they have a gun to their head, whether theyre in a delusion, whether theyre fighting dragons.

Understand your ability to communicate today is going to be crucial. So kinder, softer, gentler will be very successful, he said. But do we sacrifice that for officer safety?

The cadets responded no.

We do not, Lauritzen agreed. We go home. Those that were dealing with will go home if they choose to, right?

In one of these scenarios, which played out on a Wednesday in November 2020, a woman with short dark hair sat in an armchair and spun a fake gun made of rubber.

For this exercise, the woman is called Cassie, and the alcove where shes sitting near the elevator at Salt Lake City Community College is supposed to be her bedroom. Two police recruits approached her from a hallway after being told Cassie had come home sobbing and wouldnt come out of her room.

(Paighten Harkins | The Salt Lake Tribune) Police cadets prepare for a simulation training on Nov. 18, 2020, at the Peace Officer Standards and Training academy at the Salt Lake Community College Miller Campus in Sandy. These trainings often focus on worst-case scenarios.

The officers talked to Cassie and eventually entered, where they found her spinning the gun in front of her. She picked it up and waved it, with her finger on the trigger as she talked. The cadets pleaded for her to put it down, their own rubber guns drawn.

Trainer Casey Hadfield yelled out of role and the scenario ended. Hadfield asked the cadets why they let Cassie point a gun at them.

One cadet said her demeanor seemed casual, not threatening. Another said Cassie was spinning the gun, not pointing it.

Hadfield asked, And where was her finger?

On the trigger. Right, the cadet confirmed. Thats why it would have been hard for me.Hadfield said it shouldnt be. Its simple police dont let people point guns at them or their partners. Why is this so hard?

Because we have to live with it, the cadet answered.

Youre in the wrong profession, my friend, if you cant live with that.

Police cant control how a suspect acts, Hadfield told the cadets after an earlier scenario. But officers can control their own behavior and ensure they and their partners get home at the end of that shift. That may one day mean shooting someone.

Have you guys made that decision to shoot? Hadfield asked. If you havent, go home and do some soul-searching. Look in the mirror and ask yourself, Can I kill a kid? Can I shoot a grandma? Can I shoot a mom? Can I shoot a dad? Can I shoot a brother?

Because if you cant, its not you thats going to get hurt, its your partner. Can you live with that? Because you didnt act? Because you were staring down the barrel of the gun and you had second thoughts?

Randy Shrewsberry, the founder and executive director of The Institute for Criminal Justice Training Reform, reviewed footage from POST training and told FRONTLINE that this sort of fear-based scenario training focuses on the possibility of an action versus the probability of an action.

Shrewsberry said this exposes trainees to a constant level of threat that doesnt exist in the real world and can predispose officers to shoot when it isnt necessary.

Theres an old saying that if the only tool you have is a hammer, then everything looks like a nail, Shrewsberry said. I think that illustrates kind of perfectly one of the really big problems that we have when were only teaching force, and so little emphasis on de-escalation.

Maj. Scott Stephenson, who runs POST, said an outside observer may think POST is just training cadets to shoot, but the point is to show them how to avoid that possibility.

In scenarios The Tribune and FRONTLINE observed, trainers instructed role players to grab for a recruits gun if they werent paying attention, or pull a weapon on them and fire. Stephenson said cadets learn that any call could go from routine to deadly in a moment if an officer lets it.

If I can expose them to that situation, and they in the debrief, they pick up on the cues that may have led them to not shoot, then hopefully, Stephenson said, thats applied in the field.

When asked if the scenarios in training may make officers more fearful on the job, Stephenson said that its a valid observation but he didnt think so. Instead, he said it gives them some kind of experience, a reference point on which to look back.

(Paighten Harkins | The Salt Lake Tribune) Police cadets participate in simulation training on Dec. 2, 2020, at the Peace Officer Standards and Training academy at the Salt Lake Community College Miller Campus in Sandy, Utah. This took place days before their graduation.

And Stephenson posed his own question.

How would you want us to train? If those situations are so infrequent, do you want somebody going in without any type of experience at all? And if so, he asked, how do you expect them to perform?

Police havent always been trained this way. There has been a shift over time, and it was documented in 2015 by 40-year law enforcement veteran Sue Rahr, who worked for the Washington State Criminal Justice Training Commission, and Seattle University criminal justice professor Stephen K. Rice.

In some communities, they wrote, the friendly neighborhood beat cop community guardian has been replaced with the urban warrior, trained for battle and equipped with the accouterments and weaponry of modern warfare.

Professor emerita Dolores Jones-Brown, who worked at the John Jay College of Criminal Justice in New York City, said officers mindsets have shifted from trying to protect civilians lives to focusing more on saving their own lives. And, she said, racial and ethnic minorities feel the brunt of that shift.

She cited research that found officers in the U.S. are conditioned to see racial and ethnic minorities as more threatening, or scarier, than white people, regardless of whether officers are aware of that perception.

A Tribune analysis of a decade of Utah policing data showed racial and ethnic minorities are disproportionately impacted by police shootings. These groups make up about a quarter of the population, yet accounted for a third of police shootings between 2010 and 2020.

There are fewer people of color to be shot [in Utah], but they are still being disproportionately shot, in the same way as places where there are more people of color to potentially be shot, Jones-Brown said. So, yeah, this pattern of disproportionality is consistent across any investigation that Ive seen of this issue.

(Christopher Cherrington | The Salt Lake Tribune)

Justin Nix, a criminology professor at the University of Nebraska Omaha, said that disparity may be the product of police bias, but it is also influenced by other factors, like who is calling the police.

There are myriad reasons for institutional disparities, he said, including officer bias and societal forces that extend way beyond whatever any individual officer believes.POST objected to The Tribunes analysis comparing police shooting race data to Utahs population, saying it was an inaccurate depiction of law enforcements contact with communities of color.

POST said the most accurate depiction would be comparing police shootings to the number of interactions police have with people from each racial and ethnic background. That data does not exist.

The most reasonable available data, POST said, would be to compare shootings to arrest data. Nix said that, too, can be problematic, since research has shown police are more likely to stop and feel threatened by Black people.

Rahr and Rice, in their study, suggested that law enforcement could change the warrior mindset if training focused as much on teaching officers how to think critically about and communicate with the people theyre policing as it does on tactics for high-risk, low-frequency attacks.

Seasoned cops and statistics tell us, they wrote, that the officers intellect and social dexterity are often the most effective officer safety tools.

Utah lawmakers, responding to protests of police violence in 2020, passed a bill earlier this year that requires POST to spend more time teaching cadets de-escalation techniques and how to respond to calls about people experiencing a mental health crisis. This and other reforms came as the state tied a record high 30 shootings in 2020.

One thing lawmakers havent touched: the fear standard.

One Utah legislator did try to raise that bar last year. Rep. Jennifer Dailey-Provost, D-Salt Lake City, pushed a bill that would have allowed police to use deadly force when it was reasonable and necessary, not just reasonable. Her proposal had the support of Gill, the Salt Lake County district attorney.

While Dailey-Provost spent weeks in negotiations with law enforcement groups on the legislation, she got nowhere.

Other states have also been grappling with when police are justified in using deadly force. Colorado Gov. Jared Polis signed a bill into law in June 2020 that required police to be facing an imminent threat before they fired their weapons. Minnesota also recently upped its standard, but the law is currently on hold after multiple state police lobbying groups sued, saying it violated officers rights by forcing them to give statements about their shootings.

Rep. Paul Ray, R-Clearfield, sits on Utahs House Law Enforcement and Criminal Justice Committee. He told The Tribune he doesnt think lawmakers, who in Utah are overwhelmingly Republican, will pass a law that changes the deadly use of force standard and they shouldnt.If they did, he said: Youre going to lose lives.

The current law, Ray said, is rightly skewed toward officers, bystanders or victims because officers have seconds to make the decision to shoot someone.

Gill argues that police training conditions officers to be suspicious and fearful. And when hes ruling on a shooting, he has to decide it based on the perception of a reasonable officer at the scene. It leads him to ask, Are we systemically creating a definition of a reasonable officer which is, by its own process, unreasonable?

(Paighten Harkins|The Salt Lake Tribune) Cadets participate in simulation training on Dec. 2, 2020, at Peace Officer Standards and Training at the Salt Lake Community College Miller Campus in Sandy.

In a training sequence in early December, days before cadets finished the academy, Hadfield led a group in the community colleges parking lot. That day, cadets and role players used real cars as props. The firearms on the training officers hips fired less-lethal rounds.

Run at them with your hands up, Hadfield told a role player, just run at them with your hands up and say, Why you stopping? Its Black Lives Matter. Blah, blah, blah. Do all that.

When the cadets pulled up in a police cruiser, the role players went toward the car yelling that their friends were filming. That they know their rights.

Get on the ground, a cadet shouted. The man continued walking slowly. He held his hands up.Get on the ground or Im going to shoot you, she said again. He took a step. She fired multiple times.

Hadfield said it was a bad shooting. She had used her gun as a panic button, and the role player had done nothing that would make her reasonably fear death or serious bodily injury.

That panic button could cost you a lot. It could send you to jail. It could cost you your job, your house, your car, your family. It can cost you everything Hadfield said. So why are we so quick to hit it?

What happens in three days, Hadfield asked later.

A cadet responded, Graduate. Were on the streets.

Real bullets, Hadfield said. Real bad guys, real guns, real repercussions.

This story is part of a collaboration with FRONTLINEs Local Journalism Initiative, which is funded by the John S. and James L. Knight Foundation and the Corporation for Public Broadcasting.

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Inside Utah's police training and its focus on worst-case scenarios - Salt Lake Tribune

There has been a strange rumor that Vice-President Harris may resign. I have no reason to credit the rumor; but it does raise a rarely-discussed question (which a reader e-mailed me about): What happens when a Vice-President resignsor dies or is impeached, or for that matter leaves office to become Presidentand in particular what happens when there's a 50-50 senate?

For much of the nation's history, there was no provision for such situations, and as a result the Vice-Presidency was fairly often vacant (chiefly as a result of the Vice-President becoming President, except once when Vice-President John Calhoun resigned). But the Twenty-Fifth Amendment provides:

Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.

(This was how President Gerald Ford became Vice-President, after Spiro Agnew's resignation.) This provision yields two obvious follow-up questions, especially when the Senate is divided 50-50.

[1.] If the Senators are tied, would Vice-President Harris be able to break the tie to approve her own replacement? No, I think: No vote can happen (indeed, no official nomination can happen) until there is a vacancy, so by definition either

[2.] Can the President pro tempore of the Senatebreak the tie? The Constitution provides that "the Senate shall chuse their other Officers, and also a President pro tempore, in the Absence of the Vice President, or when he shall exercise the Office of President of the United States." But I don't think this has been understood as allowing the President pro tempore to cast two votes, both his own and the Vice-President's, and have those count towards "a majority." When 100 Senators are voting, and the Vice-President is not, a 50-50 vote is not "a majority."

Of course, there may well not be a 50-50 tie even if the Vice-President resigns; after all, if there's no Vice-President, then under the Presidential Succession Act, Nancy Pelosi (the Speaker of the House) would become next in line for the Presidency. (Some argue that the presence of the Speaker of the House and then the President pro tempore of the Senate in the succession is unconstitutional, but even if that's so, then Secretary of State Antony Blinken would become next in line.) It's not clear why Republicans in the Senate would necessarily prefer those as potential Presidents over someone President Biden proposes.

But I suppose President Biden could nominate someone whom the Republicans may sufficiently dislike. And I suppose that in any event Republicans might even refuse to confirm a Vice-President chiefly out of concern about the Vice-President's tie-breaking power (no Vice-President, no tie-breaker for votes over ordinary Senate matters, such as on legislation) rather than about the possibility of the Vice-President succeeding. Both highly unlikely, I think, but stranger things have happened .

Yet again I stress that this is just constitutional lawyer fun: I have no reason to believe that the Vice-President actually has any plans to resign.

UPDATE: See also this follow-up post, Can a Vice-President Be Confirmed by a Majority Vote of Both Houses Put Together?

More:
What Happens if the Vice-President Steps Down? - Reason

By Zachary Cohen, Annie Grayer and Ryan Nobles, CNN

Members of the House committee investigating January 6 said on Thursday that many of the questions they have for former White House chief of staff Mark Meadows have nothing to do with then-President Donald Trump suggesting that the panel is still open to discussing the terms of a potential interview.

The House select committee has been trying to get Meadows to comply after he defied its subpoena, failing to turn over documents and show up for his deposition last week. Two committee members indicated there are several lines of inquiry that would not be covered by executive privilege.

Rep. Pete Aguilar told CNN on Thursday that Meadows, one of Trumps closest advisers, might have a minor claim to executive privilege over some conversations but emphasized the committee has questions for him that have nothing to do with the conversations he had directly with the President.

His conversations about stopping a free and fair election, about criticizing and stopping the counting of electoral votes, about his coordination with campaign officials on private devices that were not turned over, all of those issues are not privilege worthy and he has some explaining to do, the California Democrat added.

Rep. Jamie Raskin, another select committee member, also told CNN on Thursday that the committee has lots of questions {for Meadows} that have nothing to do with Trump personally.

We want Meadows to come in and testify on everything of interest to us, he said. If he thinks there are some questions that are covered by either executive privilege or the Fifth Amendment privilege against self-incrimination, he can invoke it and a court can settle it later.

But there are certainly a lot of questions that are not even arguably tangentially related to privilege. And those you have to answer, the Maryland Democrat added.

The statements come after the current White House indicated last week that concessions do not need to be made for Meadows, notifying him that President Joe Biden will not assert executive privilege or immunity for him on matters related to the probe.

The day after that notification, Meadows was a no-show for a scheduled deposition.

Previous congressional inquiries have made concessions to close presidential aides. In the late 2000s, in a legal battle over getting testimony from former White House counsel Harriet Miers, the Obama White House engineered a deal that allowed a House committee to conduct interviews it wanted with Miers and former White House chief of staff Josh Bolten by making questions about direct communications with former President George W Bush off limits.

A select committee aide told CNN that the panel has not taken any subjects in a potential interview with Meadows off the table and expects to get all the information it is seeking.

Meadows attorney did not respond to CNNs questions about possible negotiations on Thursday.

Ahead of his scheduled deposition last week, Meadows attorney, George J. Terwilliger III, issued a statement saying his client would not cooperate with the committee until courts had ruled on former President Donald Trumps claims of executive privilege, noting a sharp legal dispute with the committee.

Aguilar also noted Thursday that there are ways to discuss specific claims of privilege but Meadows is still required to talk to the committee.

If there were privileged claims, theres a way to address them. What Meadows is saying is he has absolute privilege; he doesnt have to have conversations with us. The courts dont agree with that, past precedent hasnt agreed with that, and Congress has never indicated with that, he told CNN later Thursday, expanding on his previous comments.

Aguilar added that the record the committee is building shows the large portion of the information it is looking for does not relate to the executive privilege claims that Meadows is making.

Last week, White House Deputy Counsel Jonathan Su wrote to Meadows attorney, informing him of Bidens decision, and once again cited the unique and extraordinary circumstances where Congress is investigating an effort to obstruct the lawful transfer of power under our Constitution.

Su noted that Biden has already determined that executive privilege does not apply to particular subjects within the committees purview, including events within the White House on or about January 6, 2021; attempts to use the Department of Justice to advance a false narrative that the 2020 election was tainted by widespread fraud; and other efforts to alter election results or obstruct the transfer of power.

The chairman of the House select committee, Democratic Rep. Bennie Thompson of Mississippi, said Wednesday that he was signing a letter to send to Meadows outlining everything the committee wants to learn from him, as the panel weighs whether to pursue a criminal contempt referral.

This letter would be key to marking the trail of communication between Meadows and the committee, and crucial to building out an eventual criminal contempt referral report, if the committee chooses to go that route.

A key question that the committee has said it wants answered by Meadows is whether he was using a private cell phone to communicate on January 6 and where his text messages from that day are.

We have information that that phone may or may not be in his possession. That number is not active anymore that he used, so we just want to know, Thompson has said.

The-CNN-Wire & 2021 Cable News Network, Inc., a WarnerMedia Company. All rights reserved.

Continued here:
January 6 committee's interest in Meadows goes beyond conversations with Trump - kuna noticias y kuna radio

Summary

The January 6 committee unanimously voted to advance Steve Bannon criminal contempt referral to full House. Democratic Congressman Pete Aguilar of California is interviewed. President Joe Biden along with Vice President Kamala Harris and Treasury Secretary Janet Yellen held two separate meetings with Democrats this afternoon. Two election officials accused of undermining election security are now banned from overseeing Colorado`s November election. A judge has ruled in favor of Colorado Secretary of State Jena Griswold.

LAWRENCE O`DONNELL, MSNBC HOST: Yeah, when you go there, it will be the first one of the night. I don`t know how I know that. I was watching every minute of your show and interview with Bennie Thompson, which was so important. One of the things that was said tonight was something that I don`t think was quite so clear before and that was when Liz Cheney said that the resistance, the Trump resistance to this investigation and to this particular subpoena actually indicates that Donald Trump was involved in the run-up to the preparation for and what they believe may be the conspiracy to attack the Capitol.

RACHEL MADDOW, MSNBC HOST, "TRMS": And that that is what -- that is the common thread that explains the resistance in terms of what people aren`t handing over and what people are refusing to talk about. I asked Thompson tonight, Chairman Thompson tonight whether or not they sort of seen enough already in their investigation to know to have found things that the public doesn`t know to have found things that will surprise us or indeed shock us in terms of how things went on January 6th and he said oh, yes, the public will be shocked. We have found stuff that will surprise you and then for Liz Cheney to have said that tonight, I feel like they`re starting to give indications where the investigation is going.

O`DONNELL: Yeah, and I`m hoping we can find more about the cooperation they already had. The chairman mentioned that in his statement in the committee tonight about how Bannon is the only one so okay, what does that mean -- what is Mark Meadows doing exactly if Bannon is the only one resisting in the way he is resisting and we have Pete Aguilar, a member of the committee joining us for that discussion. That`s one of the things we`ll see what they can and can`t tell us about that. Because obviously, they are trying to contain how much of the information gets out at this point.

MADDOW: Yes, and rightfully so. They`re going to present their findings when they have findings to present. But as they present the subpoena to Bannon, for example, again, rightfully talking about the fact he`s the one engaging and making clear time is of the essence. They won`t do this fast, they won`t be delayed. They will force this fast.

The vote in the House is Thursday. That`s even faster than we thought it would be. So they`re full steam ahead. This is not something that is plodding along.

O`DONNELL: So, of course, you did your homework and you discovered the last time there was such prosecution for this back in the 1980s. By the way, the name of the show could be "Rachel Maddow`s Homework with Rachel Maddow." That`s one --

(LAUGHTER)

O`DONNELL: That`s one show title that I don`t know, should be on the list. Should think about.

Anyway, so it was great because I vaguely remembered it when you said it but then you said for me, the magic sentence of it was eight days between the time the house voted for the prosecution and the Justice Department actually brought charges in eight days, and those of us who were around back then and in the 1970s during the Watergate investigation, we keep saying all of these processes used to be much faster. Things that happened in weeks and months now used to literally happen in days. And that`s an example.

MADDOW: Yes, that`s -- and, you know, it will be an independent judgment by the U.S. attorney in D.C. to decide whether or not to bring these charges and nobody should think they can inflect that decision, but theoretically, if the U.S. attorney decides to go ahead with this, convening a grand jury or going to a grand jury that`s already empanelled and asking for an indictment in a case like this, shouldn`t become flex. He`s trying to assert executive privilege when the only person that could invoke executive privilege, the current sitting president of the United States says it doesn`t apply here, I`m not the one invoking this.

It`s a fairly simple matter if they decide to do it. I don`t know why it should take more than eight days. We don`t know how the Justice Department will be inclined here, how the attorney general might instruct this U.S. attorney`s office how to handle this.

[22:05:03]

I mean, if you`re Bannon, you`re probably playing the odds that nothing bad will happen to you because you seem to skate when he`s been indicted before but, you know, this is serious stuff and it could move fast if at least on paper, there is no reason to think it couldn`t move fast.

O`DONNELL: The other -- before you go to hit the grand slam, the other great thing that of course in the vote in the 1980s, the vote was unanimous in the House every single Republican member of the House voted for criminal prosecution of a Republican president, a Reagan administration official and there was just no question of course, if she`s going to defy this subpoena, of course we all vote for them.

MADDOW: Yeah. I mean, the unanimous vote, I mean, that was Congress in a non-partisan way standing up for the power of Congress to actually conduct investigations and to be obeyed. And that I feel like those days are passed, but maybe they`ll come back.

O`DONNELL: You got to go, Rachel. They need you.

MADDOW: They do.

O`DONNELL: Thank you, Rachel.

MADDOW: Bye, Lawrence.

O`DONNELL: Thank you.

Before the committee voted tonight, the Republican Vice Chair of the Committee Liz Cheney began her remarks by outlining the case against Steve Bannon.

(BEGIN VIDEO CLIP)

REP. LIZ CHENEY (R-WY): On January 6th, a mob breached the security perimeter of our Capitol, assaulted and injured more than 140 police officers, engaged in hand to hand violence over an extended period and invaded and occupied the United States Capitol building, all in an effort to halt the lawful counting of electoral votes and reverse the results of the 2020 election.

The day before this all occurred, on January 5th, Mr. Bannon publicly professed knowledge that, quote, all hell is going to break loose tomorrow, end quote. He forecast that the day would be, quote, extraordinarily different than what most Americans expected.

He said to his listeners and his viewers, quote, so many people said if I was in a revolution, I would be in Washington. Well, he said, this is your time in history.

Based on the committee`s investigation, it appears that Mr. Bannon had substantial advanced knowledge of the plans for January 6th and likely had an important role in formulating those plans. Mr. Bannon was in the war room at the Willard on January 6th. He also appears to have detailed knowledge regarding the president`s efforts to sell millions of Americans the fraud that the election was stolen.

(END VIDEO CLIP)

O`DONNELL: The question before the committee tonight was, should they recommend criminal prosecution of Steve Bannon? And each member answered that question in the role call vote.

(BEGIN VIDEO CLIP)

CLERK: Ms. Cheney?

CHENEY: Aye.

CLERK: Ms. Lofgren?

REP. ZOE LOFGREN (D-CA): Yes.

CLERK: Ms. Lofgren? Aye.

Mr. Schiff?

REP. ADAM SCHIFF (D-CA): Aye.

CLERK: Mr. Schiff. Aye.

Mr. Aguilar?

REP. PETE AGUILAR (D-CA): Aye.

CLERK: Mr. Aguilar, aye.

Mrs. Murphy?

REP. STEPHANIE MURPHY (D-FL): Aye.

CLERK: Mrs. Murphy, aye.

Mr. Raskin?

REP. JAMIE RASKIN (D-MD): Aye.

CLERK: Mr. Raskin, aye.

Mrs. Luria?

REP. ELAINE LAURIA (D-VA): Aye.

CLERK: Mrs. Luria, aye.

Mr. Kinzinger?

REP. ADAM KINZINGER (R-IL): Aye.

CLERK: Mr. Kinzinger, aye.

REP. BENNIE THOMPSON (D-MS): Has the chair recorded?

CLERK: Mr. Chairman, you are not recorded.

THOMPSON: I vote aye.

CLERK: Mr. Chairman, aye.

THOMPSON: The clerk will report the vote.

CLERK: Mr. Chairman, on this vote, there are nine ayes, zero noes.

THOMPSON: The motion is agreed to.

(END VIDEO CLIP)

O`DONNELL: Leading off our discussion tonight is Democratic Congressman Pete Aguilar of California. He`s a member of the January 6th Committee and he`s the vice chair of the House Democratic Caucus.

Thank you very much for joining us on this important night.

When did you realize that the committee was going to be unanimous on this vote?

AGUILAR: I think it became pretty clear once we started having the communication back and forth and the communications with the Bannon counsel was detailed in the report that we produced, but it became clear they would not be as corporative as many other witnesses that came forward and subpoenas as well. So, that`s when we knew this might be a little different.

O`DONNELL: What can you tell us about the cooperation of say, Mark Meadows that had a date where he was supposed to testify. He did not show up for the date but he is not being recommended for criminal prosecution?

[22:10:03]

AGUILAR: What I can tell you is that Mr. Meadows and Mr. Patel are engaged with the committee, that`s all I can say at this point. And so that`s why Mr. Bannon is the only one where you`re seeking to elevate to this level with the full House vote for contempt.

O`DONNELL: And the chairman mentioned tonight that you`ve reached out to dozens of witnesses. Does that mean you`ve interviewed dozens of witnesses already?

AGUILAR: There have been dozens of interviews that have taken place and there is coordination and discussion. There were also 11 other subpoenas that that were made public for individuals who played a role in the financing of -- and planning of the January 5th and January 6th rallies. We`re engaged with those individuals and it`s our expectation they will produce documents, as well as sit for interviews.

O`DONNELL: The chairman wasn`t sure at the point of time where you were voting tonight when the full House would vote on that. We now know the full House will vote day after tomorrow. The House has already a busy day pre -- that was already scheduled for tomorrow and you also apparently have to go through the rules committee on this.

Do you have to go through the rules committee before going to the House floor on Thursday?

AGUILAR: Yes, the chair and the vice chair will both present to the rules committee and if reported out favorably, it will go to the house floor on Thursday. That`s our understanding.

O`DONNELL: And so what is your expectation after Thursday? Rachel Maddow was reporting in the previous hour that the last time the House did this, it took eight days between the time the House voted to recommend a criminal prosecution and the Justice Department actually brought charges against a regular administration official. That passage of time was eight days.

AGUILAR: Well, that`s up to the U.S. attorney for the District of Columbia and department of justice how fast they proceed. Our expectation is that they will follow the law and so after we pass this off of the House floor, the speaker will certify it. It will get transmitted over to the U.S. attorney for the District of Columbia and the federal law is clear that that individual has a duty to bring it before a grand jury. And so that`s our expectation that it would follow the law and bring this to the grand jury.

So that`s what we hope the process that they follow will be on Thursday.

O`DONNELL: Let`s listen to the way Liz Cheney made this point about how the privilege argument appears to suggest that Donald Trump actually was personally involved. Let`s listen to the way she put this.

(BEGIN VIDEO CLIP)

CHENEY: Mr. Bannon`s and Mr. Trump`s privilege arguments do however appear to reveal one thing. They suggest that President Trump was personally involved in the planning and execution of January 6th. And this committee will get to the bottom of that.

(END VIDEO CLIP)

O`DONNELL: What was your reaction to that point?

AGUILAR: It was a strong statement, it was a great statement and Representative Cheney, Vice Chair Cheney has been an amazing colleague to work with an the issues. She`s not going to be shy about calling it like she sees it.

And so, we`re going to continue to follow the leadership of her and the chairman as we guide through this process.

We`re in uncharted territory here. We know that. We have a duty and obligation to find out the truth. That`s all we`ve said we want.

We don`t bring any joy and the chairman talked about this. We don`t bring joy about taking this step. We hope people comply. We hope they feel the patriotic duty to comply with the lawful subpoena.

But if they don`t, there have to be consequences. And we promised the American people we would get to the bottom of what happened on January 6th. This is the next step to do that.

O`DONNELL: How can you get to the bottom of it without sending a subpoena to Donald Trump?

AGUILAR: Well, we`re going to take one step at a time. And so, this is where we are today. Upon every interview we take, we`ll continue to learn more details and we will unlock more issues that we will have to chase down and that will lead to more individuals who we have to interview.

That`s just going to be the process. It`s going to be an investigative process and we`re going to follow that game plan and we`re going to chase every lead as the chair and vice chair have said and to ultimately produce a report for the American public but we won`t get ahead of ourselves. We`re not going to be shy about doing that if warranted but we need to accomplish these few steps first.

O`DONNELL: So just to be clear, you`re not going to be shy about subpoenaing Donald Trump if it is warranted?

AGUILAR: We`re not going to be shy about subpoenaing anyone with knowledge of the events of January 5th and 6th and what led to the violent insurrection of the Capitol.

[22:15:07]

And so, that`s our posture. That`s our position. We`ll chase every lead wherever it goes.

O`DONNELL: Congressman Pete Aguilar, thank you very much for joining us tonight. Really appreciate it.

AGUILAR: Thank you.

O`DONNELL: And joining us now is Daniel Goldman, the majority counsel for the first impeachment trial of Donald Trump. He`s also a former assistant U.S. attorney for the Southern District of New York. He is an MSNBC legal analyst.

And, Dan, I want to start with you on that Liz Cheney point where she says Mr. Bannon`s and Mr. Trump`s privilege arguments do appear to reveal they suggest that President Trump was personally involved in the planning and execution of January 6th. What was your reaction to that point?

DAN GOLDMAN, MSNBC LEGAL ANALYST: That`s a great point. It`s similar to what you would refer to as an adverse inference to someone who takes the Fifth Amendment in a civil case and basically the law is that you could use that assertion of the Fifth Amendment, you can`t use it against them in a criminal case but take an inference against them in a similar case.

It`s a similar idea in impeachment we said every time you obstruct, you are essentially admitting that you have inculpatory evidence. And that`s exactly what Liz Cheney is saying. She is saying you cannot assert executive privilege unless you have relevant information to our committee, which is investigating January 6th.

Excerpt from:
Transcript: The Last Word with Lawrence O'Donnell, 10/19/21 - MSNBC

I am writing in opposition of the proposed rent control measure on the November ballot in St. Paul.

The last several years have seen unprecedented rental housing development in St. Paul. New construction and renovated buildings with rents at all levels of affordability can be seen throughout the downtown and the West Side river flats, along the University Avenue light rail corridor, on Snelling Avenue south of I-94, and now under construction at Highland Bridge. This list does not yet include the future developments at the Sears site or the former Hillcrest golf course. Alarmingly, the rent control measure would place all of these projects at risk.

Local urban geographer Bill Lindeke (Ph.D., University of Minnesota) made many sound arguments against rent control in his recent Twin City Sidewalks posting, Why the 3% Cap Stops New Housing Construction. Here is an extended passage from his article:

Whether or not its possible (for landlords) to make money with a 3% rent cap in place is irrelevant. Its about the financing Its also not really about whether developers make money. Ask anyone who does economic development, and theyll tell you that developers have trouble getting financing for new housing in Saint Paul as it is. It will become impossible to get loans to build when the city has become three times as risky as anywhere else in the country. The people who finance construction have plenty of choices about where to (finance) build(ings). When it comes to building new housing, Saint Paul will basically be redlining itself. (Italics added.)

Lindeke summarized the flaws in the proposal by saying it would be one of the strictest in the world. The proposal does not contain exclusion for new construction like other cities, and in the end would not really benefit the income groups it is intended to help.

Lindekes comments resonate with me, based on Exeters 30 years of developing, managing, and owning commercial real estate in five of the seven wards in St. Paul.

It is perhaps not widely known that the pandemic has driven down apartment rents throughout the Twin Cities to substantially lower levels than 18 months ago. A blanket 3% rent cap would freeze rents in St. Paul at a point where a great many building owners would have difficulty covering mortgage payments and real estate taxes. As a result, there could be foreclosures and ownership changes that would hurt the downtown and other areas of the city where new rental projects have revitalized entire neighborhoods.

This would be a tragic outcome for St. Paul, which has gained so much development momentum in recent years, with light rail and new sports facilities to go with the citys many outstanding cultural and historical venues and solid large downtown public and private employers.

There are also many complex legal issues associated with the proposal as well. Whether the ballot initiative in fact complies with existing Minnesota law is debatable. The impact of third-party covenants in the citys many tax-increment-financing districts and their possible constraints could affect the ability of the city to entertain, adopt, and/or administer a program like the ballot measure.

Perhaps the most potent potential legal issue would be the Fifth Amendment to the U.S. Constitution, which prohibits a municipality from exercising public policy powers that go too far and constitute an eminent domain taking that would require the payment of just compensation to affected property owners. The 2013 U.S. Supreme Court case of Koontz v. St. Johns River Management District gave new vitality to this takings clause of the Fifth Amendment, and a more recent federal district court case in Hennepin County was decided along somewhat similar lines. All of which probably increases the likelihood of a serious and well-funded legal challenge in St. Paul should the ballot measure pass.

Finally, its very distressing to me, a person who has been involved in local public affairs over his entire professional career as a practicing lawyer and then real estate developer, that there has not been a proper public discussion process about the proposal, which normally precedes a significant change in city policy. I believe this has been a glaring oversight. I hope voters will reject the ill-advised proposal and allow for a conversation about how to bring more housing to St. Paul.

James A. Stolpestad is the founder and senior principal with St. Paul based Exeter Group LLC.

Read more here:
Jim Stolpestad: Heres why I oppose the rent control proposal in St. Paul - TwinCities.com-Pioneer Press

A New Jersey appellate court on Monday ruled against the owner of a kickboxing gym who sued Gov. Phil Murphy over COVID-19 mitigation measures that she claimed stifled her business and led to its closure. Its the latest example of a court upholding orders state and local governments put in place to slow the spread of the virus.

The decision affirmed a Sussex County court ruling that Darlene Pallay, the owner of a CKO Kickboxing franchise in Franklin Borough, was not entitled to any compensation from the state because of shutdown orders and capacity restrictions last year.

Facing eviction last year before it was allowed to reopen at full capacity, Palley decided to shutter the business on Oct. 31, 2020.

In his analysis of the case, appellate Judge Garry Rothstadt dismissed Pallays argument that state law entitled her to compensation, or that the executive orders amounted to violations of the taking clause of the Fifth Amendment of the Constitution, which prohibits government from taking private property for public use without just compensation.

I am very disappointed in the decision, Pallay told NJ Advance Media via Facebook Messenger. My family has lost so much and we continue to struggle.

She said she plans to file a petition to have the case heard by the states Supreme Court.

The governors office referred comment to the Attorney Generals Office, which declined to offer any.

Palleys argument hinged on whether the state commandeered and utilized her workout studio when, in March 2020, Murphy signed executive orders closing gyms.

Rothstadt began the 29-page decision by dismantling that notion, referencing English definitions of the words commandeer and utilize from Merriam-Webster. Both of them imply the physical taking of assets, the judge wrote. That didnt happen in this case.

She therefore was not entitled to compensation under the states Civilian Defense and Disaster Control Act. Instead, Rothstadt said, the executive orders amounted to regulation, which doesnt come with any level of compensation.

He also said the case did not trigger the federal and state constitutions taking clauses because those typically involve the taking of property; CKO rented its space.

To state a taking claim, it is not enough to allege that government conduct frustrated a business enterprise, Rothstadt wrote, citing a 2020 federal case out of Maine called Savage v. Mills.

Further, the executive orders didnt amount to what the judge called a compensable regulatory taking. He conceded the states measures reduced the studios revenue but said the business was never deprived of every single opportunity to make money, even when government orders shuttered the physical venue.

He noted that the studio offered live online fitness classes but chose not to charge for them. He said the studio didnt take full advantage of the states reopening schedule, choosing to remain an outdoor-only gym for weeks even after Murphy allowed limited indoor capacity. And the gym also lowered its rates. All the while the business qualified for more than $21,000 in federal aid, the judge said.

The State is not liable for a regulatory taking merely because the operations permitted resulted in lower revenue than plaintiff might have earned without the regulations in place, wrote Rothstadt. Indeed, gyms and fitness centers likely would have seen a drop-off in business due to the COVID-19 pandemic, even absent the (executive orders).

Finally, Rothstadt closed by saying Palleys gym wasnt singled out, and that the measures Murphy took were legitimate.

It is undisputed that these limitations constituted valid exercises of the States police powers in the context of a public health emergency, to mitigate the spread of COVID-19, the judge wrote.

Our journalism needs your support. Please subscribe today to NJ.com.

Josh Solomon may be reached at jsolomon@njadvancemedia.com.

See the original post here:
Gym owner who sued Gov. Murphy over COVID restrictions loses appeal - NJ.com

AYER Former Townsend reserve Police Officer Christopher VanVoorhis was found not guilty on a charge of domestic assault and battery in Ayer District Court on Monday.

VanVoorhis case was heard in a bench trial before Judge Matthew McGrath. The lone witness to testify was Officer Christopher Tucker from the Townsend Police Department, who arrested VanVoorhis.

The spouse of VanVoorhis, who was the alleged victim, elected not to testify in the trial. After initially choosing not to invoke the marital privilege, his spouse elected to invoke her Fifth Amendment right against self-incrimination. However, the defense submitted six photographs showing bruises and scrapes on her arms, knees and one of her wrists that were allegedly a result of the incident.

According to McGrath, he found the testimony from Tucker to be credible. However, he noted the commonwealth failed to persuade him beyond a reasonable doubt that the actions of VanVoorhis were not in self-defense.

The alleged incident happened on June 19. According to Tuckers report, VanVoorhis was driving his spouse to her Townsend residence when an argument broke out. Tucker said the argument may have been precipitated by past infidelity on the part of VanVoorhis.

During the incident his spouse allegedly threw several items inside the vehicle including a styrofoam container and a cellphone holder.

VanVoorhis allegedly tried to restrain the victim with an armbar technique used by police as a restraint. The commonwealth argued he tried to forcefully remove his spouse from the vehicle.

Townsend Police were asked to investigate by Leominster Police as the incident was believed to have occurred in town. VanVoorhis was arrested by Leominster Police and subsequently transferred to Townsend.

Tucker said when he interviewed VanVoorhis he did not show much emotion and was breaking eye contact.

During his testimony, Tucker said his arrest was based on probable cause. He said he relied on the testimony of both parties involved with the incident and his prior experience with domestic violence cases.

At the time of his arrest, Townsend Chief of Police James Sartell said VanVoorhis had resigned his employment as a reserve officer with the department. He had been placed on administrative leave prior to that. The department was still conducting an internal review regardless of the resignation, Sartell said.

Here is the original post:
Former Townsend reserve officer cleared of domestic assault and battery - Sentinel & Enterprise

In the early days of the Civil War, President Lincoln knew that Washington, D.C., was crawling with traitors to the Republic. Together with Congress, Lincoln required a stronger oath of office that all appointed and elected government officials were required to sign, one version of which was called The Ironclad Test Oath.

As the war ended, some changes were made to the oath to accommodate efforts to bring the Confederates back into the Union. But much of that Civil War oath has survived, and it is still part of the oath that all members of Congress and appointed high officials take today.

I do solemnly swear that I will support and defend the Constitution of the United States against all enemies, foreign and domestic are words that were necessary to weed out traitorous Northerners and seditious Southerners. They are still the opening words of the oath, and they have served us well.

American officials do not swear allegiance to any man or woman or office holder. They swear to uphold the Constitution and the rule of law. And those oaths soon will be tested as the bipartisan Jan. 6 congressional committee continues to investigate official involvement in the domestic terrorist attack on the Capitol.

Already, some former Trump administration officials have declared they will not honor the committees subpoenas. President Trump himself has urged four of his former aides to ignore subpoenas to testify or provide documents, and a letter from Trumps lawyers assured them that they are shielded by executive privilege.

All of this will be sorted out by the courts. But any former or current officials who have sworn to defend our Constitution against all enemies, foreign and domestic will have a very hard time squaring their refusal to testify with their oath of office.

Trump himself has been clear about his judgment of those who have refused to cooperate with official investigations in the past. When commenting on those who have asserted their Fifth Amendment rights and refused to testify, he said, If you are not guilty of a crime, what do you need immunity for?

And the oath of office will be put to the test on the other side, too. For the congressional committee members and the United States attorney general to honor their oaths, they will have to do everything in their power to enforce the subpoenas and compel the testimony of those with inside knowledge of the attack.

That will mean seeking civil and criminal sanctions against those who refuse to testify. Otherwise, they will have failed to defend the Constitution against all enemies, foreign and domestic.

During the police attacks on protesters outside the 1968 Democratic National Convention in Chicago, the crowd repeatedly chanted, The whole world is watching. This is another one of those times.

Our European allies are questioning our resolve to lead the free world; China continues to challenge us economically and militarily; and Vladimir Putin is biding his time and waiting to see how this turns out.

In the balance, we will see if we are still a nation of laws whose leaders are part of our constitutional order. And all that will turn on whether former and current officials honor the oath they took when assuming office. The stakes are high.

Read more from the original source:
Joseph Sabino Mistick: Jan. 6 investigation will test oath of office - TribLIVE

Summary

Steve Bannon is going to defy the January 6th committee subpoena. A Florida school board member who supports masks has been harassed by anti- mask protesters. Donald Trump`s company is now a criminal defendant in a tax fraud case in Manhattan. According to federal rules, The Trump Organization can now be barred from doing business with the federal government.

LAWRENCE O`DONNELL, MSNBC HOST: Good evening, Rachel.

And I was listening to your reporting on what`s going on in Alaska, and you showed the video of people in these meetings threatening these elected officials who are considering how much mask mandating do we have to do and what situations. We`re going to be joined tonight by Jennifer Jenkins who has gone viral in the last 24 hours on this issue. She`s a school board member in Florida.

And what she has endured by simply by believing that masks are a pretty good idea to try to limit the spread of COVID in public schools, what she and her daughter, her family have endured is just horrific, and she finally spoke about it for the first time yesterday. She`s going to join us tonight.

And I just marvel at the bravery of these people. The astonishing thing in your reporting is at the end of everything that we see here, they then vote 9-1 in favor of masks and against the wishes of the people who were threatening them with violence.

RACHEL MADDOW, MSNBC HOST, "TRMS": That`s right, and public service is sort of always a small H form of heroism, always. To be a public servant is to do a good thing by the world. But it should not actually take literal bravery. It should not take physical bravery to do these kinds of jobs, to be a city councilor, to be a school board member, to do these things.

But the way the political right has dealt with COVID is by bringing threat, including physical intimidation and physical harm very, very, very close to the surface almost immediately for the public servants who are dealing with these questions just as part of their job in public service, and it is -- I saw the footage that you`re referring to from your guests tonight. I`m really looking forward to what she has to say about it.

She shouldn`t have to be that brave to do that job. That`s on us as a country.

O`DONNELL: Exactly, exactly. And no one signing up for the school board was ever signing up for this kind of thing, and so --

MADDOW: That`s right.

O`DONNELL: That`s the other part of the marvel of it is the -- people continuing in these jobs in the face of this.

MADDOW: Yeah.

O`DONNELL: I mean, they are in a sense part of that first responder force that the people who must come up with ways of responding to COVID because of their jobs right away, and people involved in the schools have all been part of that, and now, with the school year underway, successfully, there`s this -- instead of celebrating how successfully the school year has gone so far, there is all this rage.

MADDOW: Rage and threat and literal violence and there`s going to have to be both accountability for it but there`s also got to be strategies to deescalate this stuff, that will have to involve responsible figures on the right. That`s what we`re not seeing yet.

O`DONNELL: Yeah, we`ll have to be very patient waiting for them to emerge. That`s the one that`s going to happen.

Thank you, Rachel.

MADDOW: Thanks, Lawrence.

O`DONNELL: Thank you.

Well, Steve Bannon is promising to become a criminal again tomorrow. But he won`t have Donald Trump to pardon him this time. In the last months of the Trump presidency, Steve Bannon was arrested and charged with federal crimes for the way he embezzled money that he raised from pathetically gullible Trump voters who actually gave money to Steve Bannon because Steve Bannon lied to them and told them that he would use that money to privately build the wall on the southern border that the president of the United States Donald Trump was not able to build.

Steve Bannon would build it if you just sent him your money. Steve Bannon defrauded Trump voters, got caught by the feds, was charged with those crimes, but didn`t have to go to trial in federal court because Donald Trump pardoned him, pardoned him for defrauding Donald Trump`s own voters.

Steve Bannon has been subpoenaed by the special House committee investigating the attack on the capitol to testify tomorrow, and he has already become the first person in history who is trying to hide behind presidential executive privilege even though he wasn`t even working in the White House or the government during the period that the committee is investigating.

[22:05:07]

He was a private citizen.

Donald Trump has become the first private citizen and former president in history to try to exert executive privilege in a congressional investigation and felt today once again, President Biden smacked down that false and illegal claim by Donald Trump.

The White House released a letter today that was actually written last week to the archivist of the United States where all of the presidential records are kept. That letter says President Biden does not uphold the former president`s assertion of privilege. President Biden instructed the archivist to provide the House committee with all, all of the information that the committee has requested.

Last week, Steve Bannon`s lawyer sent a letter to the committee saying since these privileges belong to President Trump and not to Mr. Bannon, until these issues are resolved, Mr. Bannon is legally unable to comply with your subpoena requests for documents and testimony.

Like all Trump world lawyers, Steve Bannon`s lawyer is one of those lawyers where you wonder if he really finished law school. He is so wildly wrong.

Executive privilege no longer belongs to Donald Trump. It now belongs to President Joe Biden, and so when Steve Bannon does not show up for his deposition tomorrow, the House committee is going to recommend to the Justice Department that Steve Bannon face criminal charges for contempt of Congress.

(BEGIN VIDEO CLIP)

REP. ADAM SCHIFF (D-CA): I think that Steve Bannon has been pretty public about his unwillingness to cooperate in any way and from my point of view, it`s not up to him. He is required to show up. He`s required to testify, and if he doesn`t and doesn`t have a reason, a legal reason to proffer, which he doesn`t, then we will hold him in criminal contempt and we will refer that to the Justice Department for prosecution. That will be true of the other witnesses as well if they do not comply.

(END VIDEO CLIP)

O`DONNELL: That was Adam Schiff on this program last night. He`s a member of that committee. Liz Cheney and other members of the committee have also said that the committee is unanimously supportive of enforcing its subpoenas with criminal contempt charges. The committee made news at the close of business today by revealing that they have subpoenaed former Acting Assistant Attorney General Jeffrey Clark.

In a letter to Clark accompanying the subpoena, the committee said that they have credible evidence that you attempted to involve the Department of Justice in efforts to interrupt the peaceful transfer of power. You proposed that the department send a letter to state legislators in Georgia and other states suggesting that they delay certification of their election results and hold a press conference announcing that the department was investigating allegations of voter fraud. These proposals were rejected by department leadership as both lacking a factual basis and inconsistent with the department`s institutional role.

Lacking a factual basis, so Jeffrey Clark knows that the committee already knows that he was lying about the election in discussions inside the justice department and inside the White House. Jeffrey Clark is ordered to testify in a deposition on October 29th, and that gives him about two weeks to practice invoking the Fifth Amendment.

The committee obtained direct incriminating evidence against Jeffrey Clark today in the testimony of Jeff Rosen, who was Donald Trump`s final acting attorney general. If Jeff Rosen told the House committee the same things that he told the Senate Judiciary Committee about Jeffrey Clark, then Jeffrey Clark is living in fear of criminal charges tonight of attempted election fraud and conspiracy to commit election fraud.

Joining our discussion, Jill Wine-Banks, former assistant Watergate prosecutor, and Matt Miller, former spokesman for Attorney General Eric Holder, both are MSNBC contributors.

And, Jill, I want to begin with you and I want to begin with this key question that I think has left a lot of us confused. Why were you so effective in getting compliance to subpoenas against President Nixon and his administration during the Watergate investigation? And the Democrats in Congress have been so ineffective in relative terms in pursuit of the same kind of subpoenas against team Trump?

[22:10:05]

JILL WINE-BANKS, MSNBC CONTRIBUTOR: It`s really a very simple answer. Because President Nixon, despite his crimes and despite all the wrong that he did, actually believed in our system of laws and government. And when confronted with a Supreme Court decision, he agreed to comply.

So he never tried to stop people. He did try to claim executive privilege, but the Supreme Court said, no, you have to balance it. And in this case, the needs for the criminal investigation far outweigh the need for executive privilege.

And, of course, it is clear that even in the case cited by Bannon`s lawyer, this is a privilege of the current incumbent. It goes with the office. It does not go with the former office holder, so there is no possible executive privilege for any of the people and maybe most especially for Bannon who never was at the time of these conversations a part of the White House.

But even if he was, there wouldn`t be a legitimate claim of executive privilege. And so I think we have to look at the fact that the Republicans now are willing to evade all laws and to just simply stone wall in a way that is completely contrary to our democracy.

O`DONNELL: Wasn`t there another element in the enforcement of your subpoenas in the 1970s, 1974 in the Watergate investigation, and that was the speed of the courts. I mean, it seemed like you would issue a subpoena, the subpoena for the tapes, for example, the presidential tapes, that case went right up to the Supreme Court of the United States, got a ruling, and the ruling was enforced, and it seemed to take a matter of weeks to go from subpoena to the United States Supreme Court to a final ruling?

WINE-BANKS: It did. We`re clearly living in an alternative universe now. We issued the second subpoena for 64 tapes for the trial on April 16th. It was argued in the Supreme Court July 21st, I believe, and on July 24th, the Supreme Court ruled in our favor.

We got the tapes, and by August 9th, so we`re talking about days later, the Republicans had gone to the White House and said we saw the tapes, we heard them. We cannot support you. If you do not resign, you will be convicted in a Senate trial.

So that`s why it happened from April, August 9th he was out of office, and it could happen again if the Supreme Court would stop all of the political nonsense that they have been engaged in, if they would take this seriously. This is a case that cannot be left to linger for years, as it has recently. There have been other subpoenas and it has taken up to six years for a decision.

That can`t be allowed to happen because justice delayed is justice denied, and this delay would be a killer because we need to get this information to prevent any possibility of this happening again. We need the facts that are being asked. Everything that has been subpoenaed, everything requested in the letters seems very clearly relevant to legislative actions.

O`DONNELL: Matt, it seems Jeff Clark, my guess about him is that it`s very likely that he will show up to testify. It`s also very likely he will take the Fifth Amendment to virtually every question.

MATT MILLER, MSNBC CONTRIBUTOR: I think that`s likely. I think certainly he`s going to have to show up and testify. He really is on an island by himself. If you look at the way he was behaving in those final weeks.

He was acting completely beyond his authority. He`s supposed to be in charge of environmental crimes and was conducting his own investigations or supposed investigations into voter fraud. He was violating multiple department rules, having contacts with the White House, having contacts with members of Congress, both of which he was not allowed to do on his own, and of course violating his oath to the Constitution by trying to overturn the election.

And he really is, you know, out there by himself because, you know, we`ve seen Jeffrey Rosen and we`ve seen one of Jeffrey Rosen`s subordinates testifying before Congress because the Justice Department has already told Rosen and Clark and other DOJ officials from this time period that the department is waiving all of the relevant privileges. Usually the department blocks its officials from coming up and testifying for matters like this, and they`ve waived all of them. That`s true for Jeffrey Clark.

So, you know, if he wants to avoid a criminal referral and be charged with criminal contempt of Congress, you know, he needs to come up and comply with the subpoena and testify because otherwise he`s in blatant contempt of Congress. Now, to your point, if he wants to take the fifth, of course, that`s his right to -- that`s his right.

[22:15:05]

He can do so, but he doesn`t have the ability to just blow off the subpoena like he seems to want to do.

O`DONNELL: So, Matt, one of the changes in the 21st century compared to the Nixon era is just how breathtakingly slow the courts are, at the district court level, the appeals court level on all of these enforcement issues on congressional subpoenas. What about -- the Justice Department will now be tested when the Congress refers to the Justice Department for criminal prosecution of contempt of Congress. We don`t know how quickly the Merrick Garland Justice Department will be able to move on this, and in, you know -- in the past these kinds of things have been able to be handled very, very quickly.

What is your expectation of a timetable at the Justice Department for this?

MILLER: I would expect they could move pretty quickly. Look, the Justice Department has a rule that they will not prosecute someone for contempt of Congress if they are refusing to testify because there has been a legitimate claim of executive privilege by the president of the United States. It ought to be pretty easy for the attorney general to pick up the phone, call the White House counsel and say, Dana, did the president -- President Biden invoke executive privilege for Jeff Clark or Steve Bannon or any of these other within witnesses? And when the answer is no, as we know the answer is, it`s a pretty straightforward prosecution.

And I actually think the Justice Department could do more, by just making it clear that if you are not the subject of an executive privilege assertion by the sitting president of the United States, not Donald Trump but Joe Biden, and you blow off the congressional subpoena and refuse to testify, you are not immune from prosecution and we will take those referrals very seriously.

These witnesses are acting with impunity because for years they got away with it with no consequences, and if DOJ sent that kind of signal right now, I think you`d see some of these people coming up and testifying even before it got to a subpoena and not kind of playing chicken with Congress and playing chicken with the Justice Department the way they`re doing now.

O`DONNELL: Matt Miller and Jill Wine-Banks, thank you both for starting us off tonight, really appreciate it. Thank you.

And coming up, Zerlina Maxwell and Alex Wagner will be joining our discussion. But, first, we`ll be joined by someone who went viral this the last 24 hours by showing us just how bad the anti-mask protesters can be, just how vicious and how much bravery and strength it takes for one school board member in Florida to stand up to them. Jennifer Jenkins will join us and we`ll tell you what she and her daughter have had to endure, and it is much, much worse than you think. That`s next.

(COMMERCIAL BREAK)

[22:22:06]

O`DONNELL: Our next guest, Jennifer Jenkins, has now had the experience of going viral in the last 24 hours. When I saw the video of Jennifer Jenkins speaking at a school board meeting in Florida, I was in awe of her courage and her calm because Jennifer Jenkins thinks that masks are a good way to limit the spread of COVID-19 in public schools. Jennifer Jenkins and her family, her daughter, have been targeted for nothing less than public torture by Florida`s anti-mask fanatics.

In Florida, it is the Department of Children and Families that investigates child abuse, the DCF. No one knew that the DCF was going to come up at a public meeting of the school board in Brevard County, Florida, southeast of Orlando. The school board discussed whether it would be possible to allow home coming dances this year. The home coming dances have been postponed indefinitely because of COVID-19.

When the agenda turned to a resolution about threats against school board members, Jennifer Jenkins found herself talking about something she never wanted to talk about publicly.

(BEGIN VIDEO CLIP)

JENNIFER JENKINS, BOARD MEMBERS: In spite of what people believe, I am not opposed to people practicing their First Amendment rights, even when it`s outside of my home on a public property. I`m not. I`m not. I think it`s a silly method. I think it`s ineffective. It doesn`t move me or motivate me in any way, but I`m not opposed to it.

What I reject is this effort to create fear and division in the community that leads to credible threats of violence against me and my family, and there`s a lot of things that I haven`t shared with all of you up here.

I`ve tried not to talk about this stuff publicly. I don`t reject people coming here and speaking their voice. They do it all the time. We don`t stop them from doing that. I don`t reject them standing outside my home.

I reject them following me around in a car, following my car around. I reject them saying that they`re coming for me, that I need to beg for mercy. I reject that when they are using their First Amendment rights on public property, they`re also going behind my home and brandishing their weapons to my neighbors.

That they`re making false DCF claims against me to my daughter, that I have to take a DCF investigator to her play date to go underneath her clothing and check for burn marks. That`s what I`m against, which is a credible threat and calculated.

(END VIDEO CLIP)

O`DONNELL: Joining us now is Jennifer Jenkins, a member of the Brevard County, Florida, school board.

Thank you very much for joining us tonight. I am very, very sorry for what you have endured and for what you`re here to tell us about tonight.

[22:25:07]

How long has this kind of harassment and public torture been going on?

JENKINS: Thank you so much for having me, first and foremost.

You know, to be honest with you, this is something that started within Brevard County back in April for me. It started with a minority group of individuals who are part of an organization that was founded by my Republican opponent, who have decided that their voices are going to be used to terrorize me.

And you know, the majority of people support me, and they reach out to me and they tell me that they`re there for me and they support the things that I stand for. But unfortunately, it doesn`t just take -- it just takes one person to terrorize you.

And when there`s no consequences for it, it becomes the norm, and it becomes acceptable and to be perfectly honest with you, I feel like this is the new pandemic here in the state of Florida for us to focus on. It`s going across the nation as well.

Our school board members and our educators are being attacked and threatened for doing what they were elected to do, what I was elected to do, to keep our students and our staff safe and what educators were hired to do to protect our children.

O`DONNELL: You`re in a state where 60 percent support what you`re doing, 60 percent support requiring students, teachers, and staff to wear masks in school, but you`re in a Republican area where that polling might be very different.

You left out a lot of details of what`s happened to you that I know about because of conversations that we`ve had with you today including some of the vandalism that occurs at your home. They`ve attacked your plants and your trees. It`s a very active kind of thing. It took the police an hour and 40 minutes to come to your home one time while one of these things was going on.

What is it like to be in your home with your daughter watching that stuff?

JENKINS: It`s really difficult. The last protest where they came outside of my home, again, I`m not against people using their First Amendment rights. They`re on public property. That`s okay.

But I`m against them terrorizing my family. There was 25 individuals standing outside my home in a small beach town in Florida. They were there for hours.

Police presence didn`t come right away. It started to get dark out. It was time for me to put my daughter to bed, and as I`m sitting trying to read her a story, these individuals are walking right by her bedroom saying vile things.

And as I followed them around the corner to where their cars were parked into a parking lot right behind my home, police presence wasn`t following them until I was there. They got in my face. They coughed in my face telling me they were going to give me COVID. They swung flags in my face, nearly missing me by a couple inches. They said horrible disgusting things to my neighbors.

I eventually went back inside, but they brandished their weapons in the parking lot in front of my neighbors, my daughter to this day at least twice a week, mommy are those mean people going to be outside again. It`s been really difficult.

Yeah, they did, they vandalized my property. They wrote obscenities in my grass with weed killer. They cut down some of my plants. They did the DCF claim which was really difficult for me. I had to take the DCF investigator to a play date of somebody who I am just an acquaintance of, I don`t even know very well.

So, here I am a school board member walking back to a play date I had just dropped her off to with a DCF investigator with no announcement for them to look underneath her clothes to see if she has burns. It`s a really uncomfortable position to be in, and unfortunately even though the police department is doing their best to have subpoenas sent to the state level to figure out who made that unfounded claim, there`s only so far they can go.

And so, currently, I still have a document that says I had an unfounded DCF claim against me. It`s not something that`s going to go away.

O`DONNELL: What did you tell your daughter about that incident with the DCF during that play date?

JENKINS: You know, the DCF investigator was fantastic. And so, she had no idea what was going on. I really appreciated that person understanding this was very unlikely an unfounded claim. The police department came with her and let her know what`s going on.

She handled it really, really well like a pro, and I was really happy that she was there.

[22:29:51]

O`DONNELL: Why did you want to become a member of the school board and do you want to continue as a member of the school board?

JENKINS: I ran to become a member of the school board because I`m an educator. My husband`s an educator, and my daughter just turned five years old. She just entered kindergarten.

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Transcript: The Last Word with Lawrence O'Donnell, 10/13/21 - MSNBC