My Style - Reclaim My Identity : October 2018

Wednesday, October 31, 2018

This Week on ATPL: IS IT RICO?

This week on All The President's Lawyers: what if it IS RICO? Also, can you charge $63,000 for a fees motion?

Tuesday, October 30, 2018

Randazza: Damn right we should get rid of birthright citizenship

by Marc J. Randazza

American citizenship is one of the most coveted statuses that mankind has ever invented. A majority of the 7 billion people on this planet would gladly swap their passport for a nice blue one with a gold eagle on its cover. And how do you get it? For the most part, you get it by being born in the right place or to the right parents. Yeah, there's naturalization … but only about 20 million citizens, out of 350 million are naturalized. In other words, those who become “Americans by choice” are almost statistically insignificant. Even then, I think that the path to citizenship is nothing more than a bureaucratic game — and doesn’t really confer citizenship upon the “deserving.”

Therefore, I agree with President Trump — we should get rid of birthright citizenship. But, I believe we should get rid of it for EVERYONE. Open the gates of citizenship to everyone as well — even illegal immigrants — on the same terms as are offered to someone whose entire family tree grew from the planks of The Mayflower.

The problem in this country is not that Mexicans are streaming across the border to have anchor babies.

We had a huge flood of immigration in the early 20th century, and but for that immigration, America wouldn’t be half the country it is today. Immigration is not the problem. The problem is that so many of our home-grown citizens are stagnant, lazy, and stupid (and yes, so are many of our new arrivals). So how do we separate the wheat from the chaff?

We should have a “point system” for how much citizenship you get, with completely open borders. This country is built on freedom and competition, right? Let’s inject competition into the citizenship market!

We would each earn between 0-100 citizenship points. 50 points, you’re a citizen. At 75 points, you get Bronze Citizenship, 85 points you get Silver Citizenship, and at 95 points you get Gold Citizenship. Anyone who hits 100 points even, gets Super Eagle Citizenship.

If you have one of the higher-status citizenship categories, you get certain privileges — maybe no TSA lines for you. You can carry a gun anywhere you want. You can cut in line at the DMV or other government agencies. All men will still be created equal, but some can earn status that makes them quantifiably superior — at least in terms of the rights they get.

You get 5 points for being born to an American parent, so there is a little bit of legacy preference, but not a lot.

You get a certain number of points for having a full time job, graduating from high school, for paying your taxes, etc. Essentially, a few points for doing the stuff that we expect all productive members of society to do. Certain crimes and assorted other fuckups can cost you points.

If you do absolutely everything that you’re supposed to do, but nothing special, you probably wind up somewhere in the neighborhood of 65 points. No special privileges, but a good padding above full citizenship so that one or two screw ups won’t cost you your citizenship.

You get a certain number of extra points for graduating from college, a masters program, or a PhD program. We could give more points for more useful degrees, so yeah, get that MA in Victim Studies, but don’t think that it is going to make you more valuable to us than a nursing degree or an engineering degree, because it ain’t. A law degree, sadly speaking, might not be worth a whole lot.

You get bonus points for truly kicking in to improve America. You author a book. You start a business that employs a certain number of people. You invent something useful. You cut a bad ass album. You fill in potholes. The details can be tweaked as much as we like – but the concept is the same. You get points for being worthwhile and making America greater. If you contribute to America sucking, then you lose points.

It wouldn’t be wholly economically based — as there are non-financial contributions that indicate a desirable citizen. You save a puppy from a burning building. You use that law degree to handle a meaningful pro bono case. Joining the military gets you some extra points. Medals get you points too. Congressional Medal of Honor gets you 10 points that you can’t ever lose. But, unlike Starship Troopers, service alone does not guarantee citizenship (but it helps).

You lose points by being convicted of crimes, but also by douchetastic behavior that we don’t necessarily criminalize. You hog the left hand lane on the highway, you lose a point every time you do that. Lie about who your kid's dad is, you don't go to jail, but you're not going toward higher status with that behavior, missy. Dude, you sexually assault someone, and we can't necessarily prove it sufficiently to put you in jail, we might still be able to dock you some points. If you put a dog in a stroller, you lose 5 points. If you have an "emotional support animal," you lose 5 points. Because fuck you, you're fucking useless. Holy shit, if you incorrectly use the phrase "fire in a crowded theater," you're losing a few points, my friend. SO FUCKING READ HOLMES OR TO THE UNDERCLASS YOU GO, YOU INTELLECTUAL PEASANT!

Of course, you can be "useful" in some ways that won't necessarily help you points-wise. This system will be as disengaged from the economic system as it can be. Maybe if you make your living by flipping houses or by raiding companies and selling their assets off and laying off the whole workforce, we can dock you a few points. You can still be rich with lower status, but having more money in the bank won’t buy you citizenship points. More money to you, but you’re not getting any closer to being an Eagle.

You can’t serve as a judge, in public office, as a cop, or a lawyer unless you have at least Silver (75 points). In fact, maybe elected offices, and even appointed positions, require a certain status. I like the idea of using this to punish non-violent crimes as well. Why lock people up, if they have committed some crime, but are really not a danger to society? Prison populations would crash, and that's a great thing.

If you have less than 50 points, the Constitution doesn’t fully apply to you. Maybe some provisions apply at 10 points or so, but you’re not a full citizen, you don’t get full protection. Certain geographic areas would be closed to people below a certain number of points. You sure as hell don’t get to vote if you’re under 50 points.

If you are over 25 years old and you have less than 10 points, you get nothing. No First Amendment, no Fourth Amendment, no nothing. Essentially, you’re on probation. You have to move out of the way for citizens when you are in line at the store. You don’t get to drive. If your points get to zero, we give you a choice of moving to another country (never to return) or prison — but in Prison, you can earn points and get yourself out. But, if you're a grown man or woman and you can't get at least 10 points, you aren't worth much, so you shouldn't get much.

With this plan, we open the borders and welcome everyone. Certain immigrants get to start with a few points. Perhaps you did some act of service to the United States, like saving American soldiers from kidnappers. You win a Nobel Prize, you get 25 points just to move here. But, your average immigrant gets only a point or two for checking in at the border and letting us know he’s here. A truly worthy immigrant – the kind we want, can earn 50 points in 5 years or less, and within a few decades can even be eligible to run for president. A crappy one will find life here to be very unpleasant, as will a home-grown loser, who might find it more desirable to just leave – thus making room for more worthy immigrants.

So, Donald, you wanna do this? Lets really do it!

Thursday, October 4, 2018

LAWSPLAINER: No, Kavanaugh's Confirmation Won't Free All Of Trump's Crimimous Minions Through An Obscure Double Jeopardy Case

I should not have to do this. But here we are.

There's a political rumor/meme/argument going around in the last couple of weeks among people opposed to Judge Kavanaugh's confirmation to the Supreme Court. It's a theory that Trump is rushing Kavanaugh onto the Court so he can rule on an obscure double jeopardy case and open the way for Trump to pardon his underlings in a way that prevents them from being prosecuted by the states. Josh Barro and I knocked it down in this week's edition of All The President's Lawyers. But it persists. NBC has a column pushing it today. It's become so widespread that Snopes has gotten into the act, sort of explaining the structure of it and giving it undeserved cachet.

Here's the problem: the theory is wrong, or at least, wildly exaggerated in certainty and significance.

Here's why.

The issue at hand is the Double Jeopardy Clause of the Fifth Amendment, which says the government can't "for the same offence . . . .be twice put in jeopardy of life or limb." Most commonly double jeopardy means that the government can't charge you again with the same thing after they lose at trial. There's a notorious exception to it called the "Separate Sovereigns" or "Dual Sovereignty" Doctrine. Under this doctrine, different "sovereigns" can try you for the same crime because they have separate interests in punishing the crime. This most commonly allows the federal government and a state to prosecute you for the same crime, on the theory that they have distinct interests and reasons to do so. This famously happened when the federal government prosecuted the police officers who beat Rodney King even after they were acquitted in state court.

The Dual Sovereignty Doctrine has always been controversial and somewhat unpopular. This term, the Supreme Court agreed to hear a case in which it could overturn the Dual Sovereignty Doctrine. That case is Gamble v. United States — you can read all about it here, on the indispensable SCOTUSblog.

The theory/meme/warning goes like this: Trump wants Kavanaugh on the Court immediately, so Kavanaugh can hear Gamble and vote to wipe out the Dual Sovereignty Doctrine, and then, once Trump pardons his various relatives and underlings and lawyers for federal crimes, they will no longer be subject to state prosecution for the same crimes. He'll be able to spare his whole criminal enterprise! It's obstruction/RICO!

No.

There's a bunch of things wrong with this wild-eyed theory.

Let's start with the fact that the Dual Sovereignty Doctrine has never been a clean left/right conservative/liberal issue. This isn't a situation where it's clear there's a 4/4 split and the conservative Judge Kavanaugh is needed to break it. So, for instance, in Heath v. Alabama in 1985, when the question was whether to extend the doctrine to two separate states prosecuting the same crime, seven justices extended it; the two who dissented were Brennan and Marshall, the liberals. In 2016, the issue returned to the Supreme Court in Puerto Rico v. Sanchez Vale. There the issue was whether the Dual Sovereignty Doctrine applied to Puerto Rico — is Puerto Rico, as a territory of the United States, a "separate sovereign" from the United States, or not? The Court held that Puerto Rico was not separate for these purposes and thus Puerto Rico and the United States could not prosecute someone for the same crime. Justices Ginsburg and Thomas — hardly ideological allies – concurred, but questioned whether the Supreme Court should revisit the viability of the Separate Sovereignty Doctrine. "I write only to flag a larger question that bears fresh examination in an appropriate case. The double jeopardy proscription is intended to shield individuals from the harassment of multiple prosecutions for the same misconduct . . . . Current “separate sovereigns” doctrine hardly serves that objective." (Ginsburgh, joined by Thomas, concurring.) The other justices did not question the doctrine. Thus, if the Doctrine is in serious danger of being overturned (and two justices questioning it is not enough to say that it is), it's in danger not just from the right, but from the left. And because it's not a clean left/right issue, we can't assume we know where Kavanaugh would come down on it.

More importantly, though, the connection between the doctrine and Trump pardons is bunk.

Double Jeopardy prevents successive prosecutions for the same crime, not related crimes. So — even if Kavanaugh swung the Supreme Court to overturn the Separate Sovereigns Doctrine, and even if Trump then went on a pardoning rampage to spare Ostrich Jacket and Idiot Lawyer and Junior and Dummy and so forth — Tump's pardon would only prevent state prosecution for the same crime that Trump pardoned them for federally. What's the "same crime?" Under the so-called Blockburger rule, two crimes are not the "same" if each one requires proof of an element that the other does not — that is, if each has at least one unique element. So: Trump's pardon can only prevent state prosecutions to the extent the state crimes have the same elements as the federal crimes he's pardoning. They usually don't. Gamble, the litigant in the case before the Court, points this out himself:

Because this Court deems two crimes to be different offenses any time “each offense contains an element not contained in the
other,” Dixon, at 696 (discussing Blockburger, 284 U.S. at 304), it will still be the unusual case in which the federal and state governments may not both bring some charge based on the same criminal occurrence.

Similarly, the Thurgood Marshall Civil Rights Center filed a friend of the Court brief in support of neither party laying out historical issues for the Court. That Center has a historical interest in civil rights laws, which have often involved Dual Sovereignty Doctrine prosecutions (as it did in the Rodney King case). The center concurs that overturning the doctrine would not prevent dual prosecutions:

Under Blockburger v. United States, federal civil rights statutes concerning law enforcement misconduct are not the “same offense” as State
statutes that may cover the same or similar underlying conduct. Thus, overruling dual sovereignty should not eliminate the federal government’s ability to prosecute these types of civil rights cases after the State has previously prosecuted a case that was tried to verdict.

So: even if Kavanaugh helps overturn the Dual Sovereignty Doctrine, Trump cannot insulate his underlings with pardons — particularly because many of them face uniquely state-law issues, like state tax violations or violations of other state laws. Could Trump pardons preclude state prosecution for some state crimes that are identical to federal crimes? Yes. But the notion that such state prosecutions are even in the works is purely speculative.

There are plenty of reasons you might oppose Judge Kavanaugh. This one is an over-complicated bag of hot air, approaching a Twitter conspiracy theory.

All The President's Lawyers: Torture Porn Edition

Josh tortures me with emoluments and exacting word-by-word analysis of Lawrence Tribe tweets.

This week on All The President's Lawyers.

Tuesday, October 2, 2018

Lawsplainer: Feds Charge Four With Conspiring To Travel To Charlottesville To Riot

The United States Attorney for the Western District of Virginia in Charlottesville has obtained a federal criminal complaint against four men — Benjamin Drake Daley, Michael Paul Miselis, Thomas Walter Gillen, and Cole Evan White — charging them with interstate travel to riot and conspiracy in connection with the August 2017 "Unite the Right" rally.

Who filed the what now?

The U.S. Attorney is the senior federal prosecutor in the Western District of Virginia — one of the two federal court districts in Virginia. The U.S. Attorney's office filed a federal criminal complaint against the four men. Feds file a complaint by having a federal agent submit, and swear to, an affidavit describing the evidence showing probable cause to believe the defendant committed the crime, and having a United States Magistrate Judge sign off. The complaint for one of the men is here; the affidavit in support of all four complaints against the four men is here.

What are they charged with?

For now, they're charged with two federal crimes. One is 18 U.S.C. 2101, which prohibits travelling in interstate commerce, or using interstate facilities like the internet, to incite or promote a riot. A "riot" is defined to mean an assembly of three or more people involving violence or threats of violence. They're also charged with conspiracy to commit a federal crime in violation of 18 USC 371, on the theory they agreed and conspired to travel and plan in interstate commerce to riot at Charlottesville.

Why is this a federal crime?

For the riot statute, the federal hook is travelling in interstate commerce or using interstate mechanisms like the internet or phone – that's a common hook for federal jurisdiction. The hook for the conspiracy charge is conspiring to violate the federal law — a bit of bootstrapping.

Is that it? Just those two counts?

That's all for now. They've only been charged in a complaint. They have a right to be indicted by a grand jury, which they will be within a couple of weeks unless they cut a deal. The feds may seek more charges in a grand jury indictment — the initial criminal complaint is usually fairly bare bones, since it's just a placeholder to get an arrest warrant and start the case. You usually see the prosecutor's more expansive case theory in the indictment.

How much time do they face?

The two charges each carry a maximum sentence of five years. However, as frequent readers know, that bears no relation to their likely punishment if convicted. First of all, the indictment might carry other charges. Second, they will be sentenced based on recommendations in the United States Sentencing Guidelines, which lead to results usually much lower than the statutory maxima.

What do we know about the evidence against them?

Since it's a federal complaint, it's supported by a pretty detailed affidavit detailing the investigation and what authorities found. The affiant — a Virginia State cop who is a member of a federal Joint Task Force — alleges that the four defendants were members of a Southern-California-based organization called "Rise Above Movement," or "RAM," which encourages "clean living" and "street fighting techniques." RAM members identify themselves as "alt-right" and "nationalist." The complaint alleges that Daley, Miselis, Gillen, and White [no relation of which I am aware] traveled to Charlottesville from California to attend the United The Right Rally on August 12, 2017. The complaint asserts that they have in the past engaged in "acts of violence directed towards their supposed political opponents and counter prostestors" at places like Berkeley. The complaint includes pictures of the defendants at Charlottesville, social media statements (one genius: "I hit like 5 people"), pictures of their hands taped (allegedly in preparation for fighting), and describes video footage of them assaulting people at the rally. So: it sounds as if the authorities have photos and video of them in Charlottesville, with at least some of them engaging in assaults, as well as various statements and admissions, plus prior behavior probative of intent.

Is it a strong complaint?

Well, it's as strong as it has to be. Probable cause is a very low bar. In my view, the affidavit is mediocre because it lacks thorough attribution — that is, the affiant does not explain how he knows each fact in the affidavit, but just gives a narrative statement of the investigation. But that's not uncommon, unfortunately, and feds can usually get away with it (though my supervisors at the U.S. Attorney's Office would never have put up with it, and I wouldn't have approved such an affidavit). Leaving that aside, it's enough to show probable cause — it has evidence they traveled from California to Charlottesville and committed violence at the rally, and evidence that their intent was to do so.

Does the case have First Amendment implications?

Certainly. But the First Amendment doesn't protect violence. It also doesn't protect true threats (that is, threats that a reasonable person would take as an expression of genuine intent to do harm, which the speaker intended that way) nor actual incitement (speech intended, and likely, to cause imminent lawless action). Moreover, the First Amendment doesn't prohibit using someone's speech as evidence to prove motive, pattern, or intent — like using the defendants' prior speech in an attempt to prove that they intended to go to the rally to assault people.

So what happens next?

It depends. As I write this at about 11:34 Pacific on October 2, 2018, it's not clear where these guys were arrested. If they were arrested in the Western District of Virginia, they just get brought to federal court, are arraigned, and try to get bail (we'll see if the government tries to have them detained as violent), and the court sets a future hearing date, before which the U.S. Attorney's Office will either indict them or cut deals with them.

If they've been arrested elsewhere — in California, say — they'll first appear in the nearest federal court here in California. They can waive their rights and go straight to Virginia, or they can insist on a process where the government has to prove that they're the same four guys named in the complaint and that there's probable cause for the charge (which the government usually does by indicting them, which establishes it).

Wait — why was the complaint under seal? Why are they being arrested now if it was filed on August 27?

It appears that the feds sought search warrants as well as complaints. They would have sought the complaints from a magistrate judge in Virginia, where they are being charged, and the search warrants from a magistrate judge in California, where the properties to be searched likely are, since they're from here. Arresting four dudes and searching multiple locations, especially when they're in a different district, is a logistical nightmare. If you're searching, you don't want to give them advanced notice. So it's common for the feds to get a complaint, ask the judge to keep it under seal, and unseal it only when they arrest the people and the whole operation is public.

I'll update this 'splainer if events warrant.