Category Archives: Fifth Amendment

The Second Circuit yesterday became the first court of appeals to address a criminal appeal regarding the governments investigation into the manipulation of the London Interbank Offered Rate (LIBOR). Its decision in United States v. Allen reversed the convictions of two former Rabobank employees accused of using their roles in the banks LIBOR submission process to rig the global interest benchmark, and not only reversed the convictions but dismissed the operative grand jury indictment. The court concluded that the government had improperly used the defendants compelled testimony against them, holding that the Fifth Amendments prohibition on the use of compelled testimony applies even when the testimony was compelled by a foreign sovereign. The decision may well have a significant impact on the increasing number of extra-territorial investigations conducted by the United States Department of Justice (DOJ), in which it partners with foreign agencies to investigate and prosecute cross-border activity.

The pair Anthony Allen and Anthony Conti were initially investigated by the United Kingdoms Financial Conduct Authority (FCA). During the investigation Allen, Conti, and other Rabobank employees were interviewed by the FCA; Allens and Contis interviews were compelled by threat of imprisonment, though they were granted direct use immunity. The FCA later brought an enforcement action against one of their co-workers, Paul Robson, disclosing relevant evidence against him, including Allens and Contis compelled testimony. During this exchange, Robson reviewed the materials over the course of two or three successive or nearly successive days, admitting to having underlined, annotated, and circled certain passages of both Allens and Contis testimony. But, in short order, the FCA then dropped the case and the DOJ stepped in.

A grand jury returned indictments against Allen and Conti in 2014, charging both with one count of conspiracy to commit wire fraud and bank fraud, and several counts of wire fraud. Robson was the sole source of certain material information for the indictment, including the source of testimony provided by FBI agent to the grand jury that Allen and Conti had participated in rigging LIBOR.

Before trial, the defendants moved under Kastigar v. United States, 406 U.S. 441 (1972), to dismiss the indictment or suppress Robsons testimony. The Supreme Courts decision in Kastigar held that the government may compel testimony from witnesses, in spite of their invoking the Fifth Amendment privilege against self-incrimination, where it confers immunity from use of that testimony and evidence derived therefrom in a subsequent criminal case. The upshot is that the government must show in cases where such testimony is at issue that its proof rests on evidence other than the compelled statements and the fruits thereof. The district court in this case resolved that it would instead address any Kastigar concerns i.e., issues regarding the use of compelled testimony under Fifth Amendments Self-Incrimination Clause at trial.

The pair were convicted. After a post-trial Kastigar hearing, the district court held that Robsons reading, marking up, and annotating the compelled testimony, and the fact that material parts of the FBI agents grand jury hearsay testimony had been derived solely from Robson, were not enough to taint the evidence Robson provided because the government had shown an independent source for such evidence, to wit, [Robsons] personal experience.

The Second Circuit disagreed. It held first that the Fifth Amendments prohibition on government use of compelled testimony in American criminal proceedings applies, even when a foreign sovereign is the actor that compelled the testimony, noting that Amendment protects against the use and derivative use of compelled testimony against an accused in such a proceeding.

Second, it held that when the government attempts to use a witness like Robson, who has been substantially exposed to a defendants compelled testimony, it is the governments burden under Kastigar to show, at a minimum, that the witnesss review of the compelled testimony did not shape, alter, or affect the evidence used by the government.

It third held that a witnesss bare, generalized incantations that reviewing those materials did not taint his or her testimony (as was the case here via leading questions of Robson at the Kastigar hearing, which produced nothing more than bare, self-serving denials from Robson) are insufficient to meet this burden of proof.

And it lastly it had no trouble concluding that introducing testimony provided by Robson a key cooperator and prominent witness before the trial and grand jury (via a hearsay presentation) was not harmless error beyond a reasonable doubt. Robsons had been the only testimony refuting Allens and Contis central argument that they had not actually engaged in rigging the LIBOR benchmark. This finding as to testimony both at trial and before the grand jury resulted in the dismissal of the indictments against Allen and Conti.

The Court rejected the governments counterarguments, including that prohibiting the use in United States Courts of testimony compelled by a foreign authority could seriously hamper the prosecution of criminal conduct that crosses international borders, by among other things, inadvertently or negligently obstructing federal prosecutions. The court noted that this risk already exists within our own constitutional structure, and that the practical outcome of our holding today is that the risk of error in coordination falls on the U.S. Government (should it seek to prosecute foreign individuals), rather than on the subjects and targets of cross-border investigations.

Read the rest here:
Fifth Amendment Concerns Result in Overturned Convictions in First Criminal LIBOR Appeal - Lexology (registration)

As part of the National Constitution CentersInteractive Constitution project, leading scholars across the legal and philosophical spectrum find common ground on the Constitutions articles, amendments and provisions. In this essay, Brian C. KaltandDavid Pozen look at how the Twenty-Fifth Amendment seeks to answer questions raised by the original Constitutions treatment of presidential and vice-presidential vacancies and presidential disability.

The Twenty-Fifth Amendment seeks to answer a series of questions raised by the original Constitutions treatment of presidential and vice-presidential vacancies and presidential disability.

First, what happens when a presidential vacancy arises? Article II, Section 1, Clause 6 of the Constitution states that in case of the removal of the President from office, or of his death, resignation, or inability to discharge the powers and duties of the said office, the same shall devolve on the Vice President. The line of succession from President to Vice President is clear, but what exactly devolves on the Vice President? Is it the office of President or just its powers and duties? When President William Henry Harrison died in 1841, Vice President John Tyler forcefully asserted that he had become President. Although Congress accepted this result, some disputed Tylers reading of the Presidential Succession Clause.

Second, what should happen when a vice-presidential vacancy arises? The original Constitution did not provide for filling such a vacancy. Prior to the adoption of the Twenty-Fifth Amendment, one Vice President resigned, seven died in office, and eight took over for Presidents who died in office: all in all, the vice presidency was unoccupied more than 20 percent of the time. This was less of a problem when the office was held in low regard, which it mostly was until the mid-twentieth century. But as the vice presidency began to grow into its modern forma sort of deputy presidencyit became more worrisome for the office to be vacant. These worries were sharpened by Congresss design of the 1947 Presidential Succession Act, which places the Speaker of the House and the President Pro Tempore of the Senate immediately behind the Vice President in line for the presidency, even when they do not belong to the Presidents political party.

Third, what happens if the President becomes unable to discharge the powers and duties of the office? Several Presidents suffered debilitating illnesses and injuries. For weeks and months at a time, the country was left without effective or accountable presidential leadership. Article II, Section 1, Clause 6 provided for the Vice President to step in when the President had an inability to discharge [his] powers and duties, but it provided no decision-maker, no procedures, and no definition of inability. Nor did it make clear whether the Vice President would act as President only until the President recovered, or instead would become President for the duration of the term. No Vice President wanted to seem like a usurper. In practice, power was never transferred and presidential inner circles typically concealed the Presidents condition. This pattern came to be seen as increasingly irresponsible with the advent of nuclear weapons during the Cold War; the nation needed a fully functioning presidency at all times. In 1958, President Dwight D. Eisenhower sought to break the pattern by being more open about his health and by entering into an agreement with Vice President Richard Nixon that provided for Nixon to serve as Acting President in the event of presidential inability.

The assassination of President John F. Kennedy on November 22, 1963 brought renewed attention to these questions. Led by Senator Birch Bayh, Congress gave them focused consideration and, in July of 1965, sent the Twenty-Fifth Amendment to the states for ratification. Less than two years later, the necessary thirty-eighth state legislature ratified it.

In response to the first question, regarding presidential vacancies, Section 1 of the Twenty-Fifth Amendment formalizes the Tyler precedent. It confirms that when the President is removed from office, dies, or resigns, the Vice President becomes President. When President Nixon resigned in 1974, Vice President Gerald Ford became President under Section 1.

In response to the second question, regarding vice-presidential vacancies, Section 2 of the Twenty-Fifth Amendment requires the President to nominate a replacement Vice President when that office becomes vacant, subject to confirmation by a majority of both the House and Senate. In 1973, Gerald Ford became Vice President through Section 2 after Vice President Spiro Agnew resigned. When Ford took over the presidency the following year, he promptly invoked Section 2 to nominate Nelson Rockefeller to fill the resulting vice-presidential vacancy.

In response to the third question, regarding presidential inability, Sections 3 and 4 of the Twenty-Fifth Amendment establish two procedures for transferring authority to the Vice President as Acting President. Building on the Eisenhower-Nixon precedent, Section 3 allows the President to transfer authority temporarily, by submitting a written declaration that he is unable to discharge the powers and duties of his office. The President can reclaim those powers and duties later by submitting a second declaration to the contrary. President Ronald Reagan (once) and President George W. Bush (twice) transferred authority to their Vice Presidents under Section 3 for a matter of hours while they underwent planned surgeries.

Section 4 addresses the dramatic case of a President who may be unable to fulfill his constitutional role but who cannot or will not step aside. It provides both a decision-maker and a procedure. The initial deciding group is the Vice President and a majority of either the Cabinet or some other body that Congress may designate (though Congress has never done so). If this group declares a President unable to discharge the powers and duties of his office, the Vice President immediately becomes Acting President. If and when the President pronounces himself able, the deciding group has four days to disagree. If it does not, the President retakes his powers. But if it does, the Vice President keeps control while Congress quickly meets and makes a decision. The voting rule in these contested cases favors the President; the Vice President continues acting as President only if two-thirds majorities of both chambers agree that the President is unable to serve.

Section 3 and (especially) Section 4 are long and complicated by constitutional standards. Nevertheless, they leave a number of issues unsettledmost significantly, what counts as presidential inability. At the Constitutional Convention in 1787, delegate John Dickinson asked, What is the extent of the term disability in the proposed presidential succession clause, and who is to be the judge of it? No response is recorded. By giving the President, Vice President, and Congress important and distinct roles, the Framers of the Twenty-Fifth Amendment went a long way toward answering the second part of Dickinsons question, rather than try to resolve the first part.

Brian C. Kalt is Professor of Law and The Harold Norris Faculty Scholar at Michigan State University College Of Law. David Pozen is Professor of Law at Columbia Law School.

For further discussion between Kaltand Pozenon the Twenty-Fourth Amendment, read the following Matters Of Debate:

The Unusual, Imperfect, Excellent Twenty-Fifth Amendment By Brian C. Kalt

The Deceptively Clear Twenty-Fifth Amendment By David Pozen

Filed Under: 25th Amendment

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Interactive Constitution: The Twenty-Fifth Amendment - Constitution Daily (blog)

Originally published on Just Security.

Over the weekend, one of President Donald Trumps personal lawyers, Jay Sekulow, refused to rule out the possibility that the president would pardon his associates, or even himself, in the Russia investigation. SekulowtoldABCsThis Week: He can pardon individuals, of course. Thats because the founders of our country put that in the United States Constitution: the power to pardon. But I have not had those conversations, so I couldnt speculate on that.

The issue of whether Trump could use his pardon power returns us to thedebateover whether a sitting president may be indicted or whether the Constitution requires impeachment and removal prior to indictment. Assomehave noted, that is almost a purely academic question because it is highly unlikely that Special Counsel Robert Mueller would indict Trump while still in office. In any event, there is the potential for post-presidency criminal exposure. In addition, Trumps family members and close associates could also be under investigation. This means Trump could be tempted to insulate them by granting pardons before theyre convicted of anything.

Presidents tend to save their most controversial grants of clemency for the end of their term in order to avoid the ensuing political firestorm while in office. But a Russia-related pardon would be particularly incendiary politically. That may not mean much to Trump given that a defining element of his rise has been his willingness to disregard longstanding norms and upend convention. He has mocked the disabled, attacked a Gold Star family, joked about sexual assault, savaged the free press, and fired the FBI director investigating Russian interference.

Aside from the political dynamics, granting a pardon in the context of the Russia investigation also raises fundamental questions of constitutional law.

Presidential pardon power derives from a specific grant in theConstitution. Article II, Section 2 vests the president with the Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment. The Presidents pardon power is limited to federal offenses, which include federal prosecutions in U.S. territories like the District of Columbia and Puerto Rico. Clemency requests, which include both requests for a pardon and requests that a sentence be commuted, typically flow through the Office of the Pardon Attorney at the Department of Justice (see the Justice DepartmentsFAQs). The Justice Department evaluates clemency requests pursuant tostandardsset forth in the U.S. Attorneys Manual. However, the president may bypass that process given that it is a power expressly reserved for the president.

A president can prospectively pardon individuals for crimes that have occurred but have not been charged. In the most famous example, President Gerald Ford pardoned Richard Nixon even though he was not under indictment. President Fordsproclamationincluded a full, free and absolute pardon unto Richard Nixon for all offenses against the United States which he, Richard Nixon, has committed or may have committed or taken part in during his presidency. Similarly, President George H.W. Bush issued full pardons to six people implicated in the Iran-Contra Affair,some of whom still faced trial.

The Nixon pardon was a political disaster that ended Fords presidential honeymoon, but it also sparked a debate among legal commentators about whether it was constitutional. Mark Rozell gives a brief and interestingtreatmentof the debate. Some argued it was beyond the power of the president to relieve a person of criminal liability for hypothetical offenses (see Edwin Brown Firmage and R. Collin Magnumhere). However most sources suggest a prospective pardon is within the presidents constitutional authority. InEx Parte Garland, 71 U.S. 333, 380 (1867), the Supreme Court described the power in broad temporal terms:

The [pardon] power extends to every offense known to the law, andmay be exercised at any time after its commission, eitherbefore legal proceedings are taken, or during their pendency, or after conviction and judgment. (emphasis added).

A 1995 Office of Legal Counsel (OLC) opinionnotesthat presidents throughout U.S. history have asserted the power to issue pardons prior to conviction, and the consistent view of the Attorneys General has been that such pardons have as full an effect as pardons issued after conviction. It cites an Attorney General opinion from the 1850s, which defends the presidents preemptive power on the grounds that the act of clemency and grace is applied to the crime itself, not to the mere formal proof of the crime. Members of Congress have occasionally contemplated a constitutional amendment to preclude a future pardon like Nixon received, which itself suggests Congress acquiesces to the Executive Branchs view. Most legal authorities indicate President Trump has the power to grant prospective pardons for criminal acts not subject to formal charge.

Three days before Nixon resigned, OLC issued anopinionthat [u]nder the fundamental rule that no one may be a judge in his own case, the President cannot pardon himself. Most legal experts supported that view, although the arguments as to why vary from natural law (first principles such as no man can be a judge in his own case) to constitutional structure (a self-pardon would defeat the purposes of Article I, Section 4, which expressly allows officeholders removed by impeachment to be subject to criminal prosecution). A handful of Republican members of Congress cited the possibility of self-pardon as a justification for their votes to impeach President Bill Clinton, which is discussed in the introduction to this Oklahoma Law Reviewarticle. While some doubt remains about whether the president has the authority to pardon himself, a self-pardon is most likely legally ineffective from shielding a president from future federal prosecution.

In its Watergate opinion, OLC also suggested that the president could invoke Section 3 of the Twenty-Fifth Amendment to allow the vice president, in his role as acting president, to pardon the president. If the President declared that he was temporarily unable to perform the duties of his office, the Vice President would become Acting President and as such he could pardon the President. Thereafter the President could either resign or resume the duties of his office, the opinion stated. However, if the president and vice president conspired to launder away the presidents criminal liability, it would trigger a seismic political event. It would also tarnish the vice presidents standing as a politically viable successor in the event of impeachment. However, I have not yet seen a legal obstacle to that kind of scheme.

As for the special counsel, a prospective pardon would have a narrowing effect on his authority, as it would end any criminal jeopardy arising from his investigation. However, provided there are still active leads and targets, the special counsel mandate would continue. It would raise interesting legal questions. For example, a pardoned individual could still potentially serve as an unindicted coconspirator, which triggers benefits to a prosecution such as a hearsayexceptionfor co-conspirator statements.

Congressional investigations serve legislative policy and oversight goals rather than criminal enforcement goals, so a pardon does not end an Article I inquiry. But there could be other counterintuitive effects of a pardon on the ongoing congressional investigations into Russias interference in the 2016 election and whether there was any coordination with the Trump campaign. For example, it could potentially remove federal legal jeopardy in a manner that may defeat an assertion of the Fifth Amendment privilege against self-incrimination. Were Trump to pardon his former national security adviser, Michael Flynn, tomorrow, Congress might be able to get a court order requiring Flynn to testify before the committees because he no longer faces federal criminal prosecution. That court order or resulting congressional contempt finding, in turn, could theoretically be enforced by coercive contempt (i.e., jailing until such time as the witness provides ordered testimony). Because coercion serves process integrity goals rather than criminal goals, that enforcement power probably could not be defeated by another presidential pardon.

The criminal and congressional Russian investigations should proceed with integrity and without interference. With Trump at the helm and his family under scrutiny, pardon power hangs over the investigations like a sword of Damocles. The pardon sword is largely held overhead by a thread made of political, rather than legal, fiber.

Read more:
Are There Limits To Trump's Pardon Power? - HuffPost

The Apopka City Council narrowly rejected a settlement agreement Wednesday night that would have ended the citys legal scrum with Richard Anderson and paid him $60,000.

The council voted 3-2 against the agreement, with Commissioners Doug Bankson and Billie Dean preferring to pay Anderson while Mayor Joe Kilsheimer and Commissioners Kyle Becker and Diane Velazquez said no.

Kilsheimer said the city had offered to end the legal fight before the judge ordered mediation. We proposed that both sides walk away from the litigation with no money exchanging hands, Kilsheimer said.

Anderson rejected it.

Council voted unanimously last year to end its personal-services contracts with Anderson, 62, after a serious-injury accident involving his Dodge Ram pickup in nearby Lake County that led to criminal hit-and-run charges.

The contracts with Anderson, approved in 2014, paid him $22,000 a month to be the citys lobbyist and a consultant on development projects, including the new city center and the relocation of Florida Hospital Apopka.

After the city fired Anderson, he and the city sued each other in circuit court, leading to a court-ordered mediation session last month. The negotiations produced the proposed settlement but required the councils approval.

According to a document included in the Apopka City Councils meeting packet, the citys representatives agreed to the terms of the settlement to avoid the inherent risks and expenses associated with proceeding to trial.

Although Kilsheimer was part of the citys mediation team, he voted against the deal Wednesday. He offered no immediate explanation for his vote.

Cliff Shepard, the citys legal adviser, told City Council he tried to question Anderson under oath about the hit-and-run crash, but the deposition was thwarted by the ex-officials lawyer who repeatedly invoked Andersons Fifth Amendment right against self-incrimination.

The lawyer asserted Andersons right to literally everything about the accident, Shepard said. Everything, anything related even marginally to the accident, he took the Fifth Amendment to.

Anderson worked for the city for 42 years as a firefighter, paramedic, fire chief and administrator. He left with two city pensions totaling $9,646 a month and a lump-sum payment of $346,665 for unused vacation time, personal days and sick time.

Anderson, a licensed paramedic at the time of the crash, pleaded no contest in April to leaving the scene of an accident with serious injury without rendering medical aid or calling 911. Though he was charged as if he was driving his truck, that point remained unproven.

Investigators never interviewed him nor swabbed the trucks airbags for DNA. Anderson said nothing in court or afterward, avoiding eye contact with the injured driver of the other vehicle, Michael Falcon, and Falcons family.

Prosecutors said they couldnt prove Anderson was driving his pickup, though some passers-by who aided Falcon identified Anderson from a photo array as the white-haired man they saw near the truck after the crash.

But none saw him driving.

Falcons family said they always had feared Andersons money and influence would defeat justice.

The City Councils rejection of the deal returns Apopkas lawsuit and Andersons counter-suit to the trial docket.

Commissioners Bankson and Dean argued against continuing the lawsuit, concerned about the possible financial cost. Bankson estimated it could cost Apopka $200,000 more to keep fighting.

I dont want to risk further [financial] damage to the city, he said.

But Becker pointed out the city would be paying Anderson a sum of money that is greater than the average family in Orange County earns in a year.

He said he opposed paying Anderson as a matter of right versus wrong.

Im willing to risk dollars if it means that were doing the right thing to protect the integrity of the people of this town, the city commissioner said.

Stephen Hudak can be reached at 407-650-6361, shudak@orlandosentinel.com or on Twitter @Bearlando.

Stephen Hudak / Orlando Sentinel

Former Apopka official Richard Anderson walks into a Lake County courtroom on April 11, 2017, where he was sentenced to three years felony probation in a hit-and-run criminal case.

Former Apopka official Richard Anderson walks into a Lake County courtroom on April 11, 2017, where he was sentenced to three years felony probation in a hit-and-run criminal case. (Stephen Hudak / Orlando Sentinel)

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Apopka City Council kills deal to settle lawsuit with ex-official Richard Anderson - Orlando Sentinel

NEW YORK The head of an advanced-materials manufacturer said he met with President Trumps chief strategist, Steve Bannon, on Monday to persuade him that the United States should nationalize the countrys only mine of rare earth minerals, which are used in military applications.

The staff understood the urgency of the matter, Michael Silver,chief executive officer of closely held American Elements Corp., said in a phone interview after his White House meeting, which he said was also attended by presidential deputy assistant Sebastian Gorka and White House Chief of Staff Reince Priebus.

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The rare-earth mining operations in Mountain Pass, Calif., the last remaining assets of bankrupt Molycorp Inc., were bought in June by a group that drew objections from rival bidders, who said the winner has ties to the Chinese government.

The mine should be converted to a national laboratory dedicated to rebuilding Americas rare-earth mining industry so the world knows it is safe to build high-tech manufacturing plants in the US, Silver said.

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The production of rare-earth minerals used in applications from hybrid electric cars to iPhones and military hardware such asnight-vision goggles and guided weapons is dominated by low-cost Chinese companies. Molycorp Minerals and its parent, Molycorp Inc., filed for bankruptcy in 2015 after prices for the minerals fell below the mines costs to produce them.

Silver said he was invited to brief the president on the issue on Tuesday. The White House didnt respond to requests for comment.

Silver said hes proposing the US government apply the Takings Clause of the Fifth Amendment and acquire Mountain Pass by eminent domain.

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Any attempt to make the mine commercially viable would fail because no one can compete with China, which accounts for almost all the worlds rare-earth production, Silver said.

The perception is the only place in the world you can go for reasonably priced rare earth materials for your product is in China,he said. You have to change that perception.

Los Angeles-based American Elements manufactures metals and chemicals andhas a catalog of more than 15,000 products, according to its website. Silver said his company did business with Molycorp before its Mountain Pass became idle. Silverwas among the first Americans to set up a production and distribution supply chain from rare earth mines in Inner Mongolia and China to North America and Europe, according to documents on the company website.

The sale of Molycorps last remaining assets to one of two groups of creditors that had feuded over the facility was approved after complaints that the winning bidder, which is majority-owned by JHL Capital Group LLCand QVT Financial LP, had recruited an affiliate of Shenghe Resources Holding Co., which allegedly is tied to the Chinese government.

JHL Capital founder James Litinsky, who has been helping lead the effort to revive the mine, declined to comment.

Continue reading here:
Trump urged by CEO to nationalize the only US rare-earths mine - The Boston Globe

BLOOMINGTON A dispute over a coat led to a November shooting on Bloomingtons east side, prosecutors said Monday on the first day in the attempted-murder trial of Darvell Williams.

A six-man, six-woman jury was seated Monday before opening arguments and the states first witness, a woman who reluctantly testified against her former roommate.

Its a really simple case, Ghrist said. It will come down to common sense. The defendant took a 9 mm handgun and shot multiple times at Willie Love. Eight shell casings were found in the apartment the defendant was living in.

Williams is facing nine felony charges, including attempted murder in the Nov. 26 shooting that also damaged a mailbox in an apartment complex, a passing car and a window at Lowes Home Improvement at 2101 E. Empire St.

One of the charges, an aggravated unlawful use of a weapon into a vehicle, against Williams was dropped in court Monday.

Defense attorney Brian McEldowney asked the jurors to keep an open mind and to listen to all of the evidence before making a decision on Williams' guilt or innocence.

These are volatile charges and our natural reaction is to get angry, but please listen to all of the testimony before making a judgment, he said.

The state called Chiquan Felton to the stand, who attempted to avoid Ghrists questions.

I plead the Fifth, she said. I have nothing to say.

Ghrist reminded her that she was not facing charges, so there were no grounds to invoke the Fifth Amendment protection against self-incrimination.

After excusing the jury, Judge Robert Freitag explained that she had to be truthful with her testimony.

You are here pursuant to a court order and if you are asked a question, you must answer truthfully, and if you refuse, you could be held in contempt of court and be held in county jail until you decide to answer, he said.

When the jury returned, Felton testified that she never saw Williams shoot at Love because her back was turned while she was trying to open the door to the apartment she shared with Williams.

I heard gunshots, but I never saw him shoot at him, she said. Where I come from, you run away from gunshots.

The trial is expected to conclude Tuesday or Wednesday. Testimony will resume at 9 a.m. Tuesday.

Follow Kevin Barlow on Twitter: @pg_barlow

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Prosecutor: Attempted murder began with feud over coat - Bloomington Pantagraph

BLOOMINGTON A dispute over a coat led to a November shooting on Bloomingtons east side, prosecutors said Monday on the first day in the attempted-murder trial of Darvell Williams.

A six-man, six-woman jury was seated Monday before opening arguments and the states first witness, a woman who reluctantly testified against her former roommate.

Its a really simple case, Ghrist said. It will come down to common sense. The defendant took a 9 mm handgun and shot multiple times at Willie Love. Eight shell casings were found in the apartment the defendant was living in.

Williams is facing nine felony charges, including attempted murder in the Nov. 26 shooting that also damaged a mailbox in an apartment complex, a passing car and a window at Lowes Home Improvement at 2101 E. Empire St.

One of the charges, an aggravated unlawful use of a weapon into a vehicle, against Williams was dropped in court Monday.

Defense attorney Brian McEldowney asked the jurors to keep an open mind and to listen to all of the evidence before making a decision on Williams' guilt or innocence.

These are volatile charges and our natural reaction is to get angry, but please listen to all of the testimony before making a judgment, he said.

The state called Chiquan Felton to the stand, who attempted to avoid Ghrists questions.

I plead the Fifth, she said. I have nothing to say.

Ghrist reminded her that she was not facing charges, so there were no grounds to invoke the Fifth Amendment protection against self-incrimination.

After excusing the jury, Judge Robert Freitag explained that she had to be truthful with her testimony.

You are here pursuant to a court order and if you are asked a question, you must answer truthfully, and if you refuse, you could be held in contempt of court and be held in county jail until you decide to answer, he said.

When the jury returned, Felton testified that she never saw Williams shoot at Love because her back was turned while she was trying to open the door to the apartment she shared with Williams.

I heard gunshots, but I never saw him shoot at him, she said. Where I come from, you run away from gunshots.

The trial is expected to conclude Tuesday or Wednesday. Testimony will resume at 9 a.m. Tuesday.

Follow Kevin Barlow on Twitter: @pg_barlow

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Prosecutor: Attempted murder began with feud over a coat | Local ... - Bloomington Pantagraph

The Oregon Legislature adjourned last Friday with a parting shot at law-abiding gun owners and a resounding whack across the rump of constitutional rights of all Americans. It involves passing along to the governor a bill that will permit untrained or certified individuals to petition a judge to have a third partys Second Amendment rights to possess firearms for lawful purposes suspended.

The bill, SB719A, will permit most any relative, former housemate, police officer or educational professional to file a motion to have their rights suspended under the weakly defined extreme risk restraining order parameters that most any former domestic partner could be denied their rights for most any specious justification.

This action reeks of the means and skullduggery anti-freedom factions begin their campaigns to change governments into leftist regimes by undermining the constitutional forms of free nations.

Their failure to pass gun prohibition legislation through the federal government relegates them to plan B where they resort to the same trickery and underhanded tactics that did not work then and now are trying to push through many anti-constitutional measures through big buck financing of the same junk bills into state legislatures.

They seem to feel they can hornswaggle local government much easier than federal administrations.

The measure the Oregon Democrats are seeking to pass into law faces serious constitutional questions of denying a right without any criminal conviction of wrongdoing and only on the strength of an accusation but by prohibiting an accused their right to due process before personal property is confiscated by the government in violation of the Fifth Amendment.

Those that are unsatisfied with the current government are attempting to change it with methods not in good faith processes but in ways that only breed disrespect for the rule of law just to denigrate the system.

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New gun law threat to constitutional rights - Herald and News

The public learned on March 10, 2015 that Hillary Clinton had more than 60,000 emails on her private email system, and that she had turned over "about half" of them to the State Department and destroyed the rest, which she said were "personal" and "not in any way related" to her work as Secretary of State.

The public learned later the lengths to which Clinton went to make sure the "personal" emails were completely and permanently deleted. Her team used a commercial-strength program called BleachBit to erase all traces of the emails, and they used hammers to physically destroy mobile devices that might have had the emails on them. The person who did the actual deleting later cited legal privileges and the Fifth Amendment to avoid talking to the FBI and Congress.

Clinton's lawyer, David Kendall, told Rep. Trey Gowdy, chairman of the House Benghazi Committee, that investigators could forget about finding any of those emails, whether on a device or a server or anywhere. Sorry, Trey, he said; they're all gone.

It was, as the New York Times' Mark Landler said in August 2016, the "original sin" of the Clinton email affair that Clinton herself, and no independent body, unilaterally decided which emails she would hand over to the State Department and which she would delete.

Still, there were people who did not believe that Clinton's deleted emails, all 30,000-plus of them, were truly gone. What is ever truly gone on the Internet? And what if Clinton were not telling the truth? What if she deleted emails covering more than just personal matters? In that event, recovering the emails would have rocked the 2016 presidential campaign.

So, if there were an enormous trove of information potentially harmful to a presidential candidate just sitting out there what opposing campaign wouldn't want to find it?

There have been recent reports that last summer a Republican named Peter W. Smith made some sort of effort to find the missing Clinton emails, apparently getting in touch with hackers, some of whom may have been Russian. But nothing came of it, and no evidence has emerged that Smith was connected to the Trump campaign. (The 81-year-old Smith later committed suicide, apparently distraught over failing health.)

In a phone conversation Friday, Corey Lewandowski, the Trump campaign manager who was fired on June 20, 2016, said he never heard of or communicated with Smith, and wasn't aware of any effort to find the missing Clinton emails. "I never solicited, or asked anybody to solicit or find a way to get these potential emails," Lewandowski said. "And to the best of my knowledge, nobody [in the campaign] did either."

Still, Lewandowski added that, "In the world of cybersecurity, it's fairly well known that when you delete emails, they're not gone."

Another former top Trump aide said that was a common view in the campaign. "The feeling was that they [the emails] must exist somewhere," the former aide said, "because once something is digital, it's never truly gone."

"Trump believes that," the aide added.

Still, the aide also said he had never heard of Peter W. Smith, and didn't know of any effort to find the emails. "There was never a thought of who might have them," the aide said. "Nobody at the campaign was trying to find them."

Both Lewandowski and the other former aide stressed the greatest political value of the missing emails, as far as Trump was concerned, was that they gave Trump a way to "poke" and "troll" his Democratic opponent. The Clinton team was BleachBitting and swinging hammers to smash devices and she says everything was on the up and up, that she has nothing to hide? Candidate Trump could riff on that all day. It was as if Clinton were trying her best to look guilty, to Trump's political benefit.

But at least one high-ranking Trump team member apparently did believe the missing Clinton emails still existed. In August 2016, Gen. Michael Flynn, then the Trump campaign's top national security adviser, discussed the emails with a conservative radio host named John B. Wells. "The big question is, does somebody have more emails?" Flynn began:

Does somebody have the 30,000? The likelihood of that ... the likelihood somebody has all of those emails, at a nation-state level, meaning Russia, China, Iran, North Korea, or even other countries, or some other large hacktivist group, like the WikiLeaks group that we know exists the likelihood is very high, and I'm talking like better than 95 percent. I would actually bet a paycheck on it, that somebody has it.

Flynn, of course, was a former director of the Defense Intelligence Agency, so he should know something about that. Flynn also had Trump's ear on national security and other matters. And he was saying the emails are out there, somewhere.

Which leads to a question. Would it have been appropriate for the Trump campaign to try to find the emails? After all, the emails were under congressional subpoena, under FBI investigation, of intense public interest, and a potentially explosive issue in the presidential campaign. What opposing campaign wouldn't want to know what was in them?

Look at a few possible scenarios. What if a member of the Clinton team defected and offered them to the Trump campaign? Would it have been appropriate for Trump to accept?

Or: What if a rogue hacker "a 400-pound person sitting in bed," as Trump once said got the emails and offered them to the campaign? Would accepting under those circumstances have been appropriate?

What if an intelligence operative from a friendly country got them and offered them? And what about an unfriendly country?

Would there be a scale, from standard oppo research on one end to treason on the other, depending on how the emails were acquired?

I posed those hypotheticals at least I think they are hypotheticals to three veteran Republican operatives: Tim Miller, who served as spokesman for Jeb Bush's 2016 campaign; David Carney, a New Hampshire-based strategist who's been involved in dozens of campaigns; and Barry Bennett, who ran Ben Carson's 2016 campaign and also served briefly as an adviser to the Trump effort.

Miller, a vocal critic of the president, stressed via email the question comes in the context of Russia's hacking of DNC and John Podesta emails. "So I would say that it would be unacceptable in opposition research to do that hack Podesta/DNC in any situation," Miller said.

"Where Hillary's deleted emails from her time as Secretary of State are concerned, many of those may have actually been public records," Miller continued. "So if they were acquired through a whistleblower or a lucky break scraping Internet archives, that would of course be fair game. That said, under no circumstance would enlisting a hostile government's help be acceptable for a myriad of reasons: legal, ethical, practical (how can you govern when you are in debt to a hostile government)."

For his part, Carney, writing via email, offered ways a campaign might have handled such a situation, had it arisen. "If the emails did show up, most serious campaigns would not touch them directly legalities and all. But friends of the campaign would strongly encourage the turncoat to dump them to reporters. Easier not to have fingerprints on questionable documents."

"Foreign governments would always use high-level U.S. third parties, not any direct campaign contacts, and most likely they would end up in the media," Carney continued. "So YES campaigns would seek the emails, but not directly if they were not legally available or the sources were questionable."

Bennett began by noting that the Trump campaign would have had "no ability to find [the missing Clinton emails] all by themselves. There was no tech operation until late summer, and even then it was basic."

"If someone I didn't know reached out and said, 'I have them,' I would have immediately called the committee and said this person says he has them," Bennett continued, via email. "I wouldn't want to touch them. But I would very much want them out there in the public.

"It is still hard for me to believe that copies of them aren't out there somewhere," Bennett added, going on to provide advice for a campaign facing a scandal-plagued opponent.

"Even during the Carson campaign I didn't meet with anyone I didn't know," Bennett said. "How do you know you're not being set up? I had people come to me and say they had dirt on [Ted] Cruz. I passed."

"Information can only be as trusted as the source that gives it to you. You can get easily burned with bad info or even looking like you want dirt. This is why everyone outsources research. No one in their right mind would want to touch documents under subpoena. No lawyer would ever let you."

"All of this being said, of course you want them to go public," Bennett concluded. "If the Russians had them, the last thing they would do is call a goofy record promoter in England and set up a meeting with a lawyer that can't even get a visa. Instead, DHL them from Asia to the New York Times."

Bennett alluded to the odd circumstances of Donald Trump Jr.'s June 9, 2016, meeting with Russians offering some sort of dirt on Hillary Clinton (not, as far as we know, the missing Clinton emails). In the days since the meeting was first reported, several political operatives of both parties have claimed they would never have taken part in such a meeting. While that might indeed be true, some would certainly have tried to find a hands-off way to get damaging material about their opponent into public view.

In the 2016 campaign, everyone knew Clinton had a huge secret those 30,000-plus "personal" emails and that she had gone to extraordinary lengths to keep that secret. Many people, and not just partisan warriors, suspected she had something to hide. And now, it should not be a surprise if there were some shenanigans as political operatives tried to learn the real Clinton email story.

Original post:
Byron York: What campaign wouldn't seek motherlode of Clinton emails? - Washington Examiner

This summer we mark the 20th anniversary of a major investigation by Congress of attempts by a hostile foreign power to influence an American presidential election.

Im glad the news media is pursuing the TrumpRussia scandal, but lets not forget the differences between how they are covering Russia compared with how they reported a similar story this one involving Communist China that developed during Bill Clintons 1996 reelection campaign. The Washington Post reported in 1998 that evidence gathered in federal surveillance intercepts has indicated that the Chinese government planned to increase Chinas influence in the U.S. political process in 1996.

Many people still believe that a major cover-up of that scandal worked in part because the media expressed skepticism and devoted only a fraction of resources they are spending on the TrumpRussia story. Network reporters expressed outright skepticism of the story, with many openly criticizing the late senator Fred Thompson, the chair of the Senate investigating committee, for wasting time and money. On June 17, 1997, Katie Couric, then the Today co-anchor, asked the Washington Posts Bob Woodward about the story: Are members of the media, do you think, Bob, too scandal-obsessed, looking for something at every corner?

According to an analysis by the Media Research Center, the news coverage of the congressional hearings on the China scandal in the summer of 1997 were dwarfed by reports on the murder of fashion designer Gianni Versace and the death of Princess Diana.

The Chinese fundraising scandal involving DNC finance vice chairman John Huang first came to light in the final weeks of the 1996 presidential campaign. A former Commerce Department official, Huang was a top fundraiser who scooped up suspect foreign cash for Team Clinton.

A 1998 Senate Government Affairs Committee report on the scandal found strong circumstantial evidence that a great deal of foreign money had illegally entered the country in an attempt to influence the 1996 election. The DNC was forced to give back more than $2.8 million in illegal or improper donations from foreign nationals.

The most suspect funds were brought in by Johnny Chung, a bagman for the Asian billionaire Riady family. Chung confessed that at least $35,000 of his donations to the Clinton campaign and the DNC had come from a Chinese aerospace executive a lieutenant colonel in the Chinese military. Chung said the executive had helped him meet three times with General Ji Shengde, the head of Chinese military intelligence. According to Chungs testimony, General Shengde had told him: We really like your president. We hope he will be reelected. I will give you $300,000 U.S. dollars. You can give it to...your president and the Democratic party.

The sprawling fundraising scandal ultimately led to 22 guilty pleas on various violations of election laws. Among the Clinton fundraisers and friends who pleaded guilty were John Huang, Charlie Trie, James Riady, and Michael Brown, son of the late Clinton Commerce secretary Ron Brown. But many questions went unanswered, even after the revelations that Clinton had personally authorized offering donors Oval Office meetings and use of the Lincoln bedroom. A total of 120 participants in the fundraising scandal either fled the country, asserted their Fifth Amendment privilege against self-incrimination, or otherwise avoided questioning. The stonewalling worked and probably encouraged Hillary Clinton in her own cover-up of her private e-mail server and her ties with the Clinton Foundation.

Indeed, much of the media basically gave the Clintons a pass on evidence that special-interest donors to the Clinton Foundation frequently managed to score favors from the State Department. Journalist Peter Schweitzer revealed in his book Clinton Cash that State had helped move along an infamous deal that granted the Russians control of more than 20 percent of the uranium production here in the United States. The company involved in acquiring the American uranium was a very large donor to you guessed it the Clinton Foundation.

None of this history should dissuade the media from questioning the White Houses often shifting and blatantly inaccurate accounts of what happened and who was involved and when. Either the presidents team is infected with a self-destructive gene or they really do have something to hide.

But a little humility and honesty on the part of the media would be appropriate. Much of the breathless and constant coverage of the Russia scandal is motivated by the medias hatred of Donald Trump, which is of course reciprocated.

When it came to the Clintons, the media tended to downplay or even trivialize many of their scandals. But, to be fair, a little bit of self-awareness is beginning to show up in the Russia coverage. Last Thursday, Mika Brzezinski of MSNBC noted that when it came to opening the door to lowering the standards of conduct by a modern president, Bill Clinton led the way with his lying and scandalous behavior. She was referring, of course, to the Lewinsky scandal, but her comments are equally appropriate to the many other Clinton scandals that didnt receive wall-to-wall coverage.

READ MORE: With Trump, the Benefit of the Doubt Is Gone 16 Things You Have to Believe to Buy the Witch Hunt Russia Narrative Anti-Trump Overreach Could Backfire

John Fund is NROs national-affairs correspondent.

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Not All Foreign-Influence Scandals Are Created Equal - National Review