Friday, May 26, 2017

Happy Memorial Day, or solemn Memorial Day?

In the last several days, people have begun to wish me "Happy Memorial Day." Well intentioned as they were, they made a serious mistake.

Memorial Day, the last Monday in May, is a federal holiday established to remember those who died while members of the United States of America's armed forces (unlike Veterans' Day, which celebrates all those who served).

With its genesis in Decoration Day -- when years ago volunteers decorated the graves of the fallen with flowers -- Memorial Day is not a day for barbecues, baseball games, or used car sales. It's a day for all Americans -- those of us who wore our Nation's uniform, and those who were not so privileged -- to memorialize by thought and deed the heavy price the dead have paid . . .  and how much we owe them for what they lost in every war spanning the Revolution two centuries ago to the conflict last week in Syria. 

Memorial Day is very different from America's birthday. Independence Day -- not the "Fourth of July" -- should be celebrated with fireworks, patriotic songs, and loud band concerts. 

But not Memorial Day, a time of remembrance too solemn an occasion to be "happy."

Requiescat in pace

Saturday, May 20, 2017

Holzer on Dershowitz

Back in the 1970s when Julian Kulas, Erika Holzer, and I fought to keep "the littlest defector," teenager Walter Polovchak, from being forcibly deported to the then-Soviet Union by the KGB and ACLU, it was a lonely battle with much and many against us. Among the few who stood with us in those dark days, mostly through his newspaper column, was Professor Alan Dershowitz. Unfortunately, Alan's life-long fealty to civil liberties has been misunderstood. Lately, he has been pilloried by not just conservatives, but by many of his friends on, and of, the left. He is now in print calling appointment of the Special Counsel tantamount to  putting the President of the United States before a kangaroo court. Here's Alan Dershowitz in his own words. Perhaps they will educate some members of the public about what he believes, and why.

At a moment in history when the ACLU is quickly becoming a partisan left wing advocacy group that cares more about getting President Donald Trump than protecting due process, who is standing up for civil liberties?

The short answer is no one.

Not the Democrats, who see an opportunity to reap partisan benefit from the appointment of a special counsel to investigate any ties between the Trump campaign/ administration and Russia. Not Republican elected officials who view the appointment as giving them cover. Certainly not the media who are reveling in 24/7 "bombshells."

Not even the White House, which is too busy denying everything to focus on "legal technicalities" that may sound like "guilty man arguments." Legal technicalities are of course the difference between the rule of law and the iron fist of tyranny. Civil liberties protect us all.

As H.L. Mencken used to say: "The trouble about fighting for human freedom is that you have to spend much of your life defending sons of bitches: for oppressive laws are always aimed at them originally, and oppression must be stopped in the beginning if it is to be stopped at all." History demonstrates that the first casualty of hyper-partisan politics is often civil liberties.

Consider the appointment of the special counsel to investigate "any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump." Even if there were such direct links that would not constitute a crime under current federal law. Maybe it should, but prosecutors have no right to investigate matters that should be criminal but are not.

This investigation will be conducted in secret behind closed doors; witnesses will be denied the right to have counsel present during grand jury questioning; they will have no right to offer exculpatory testimony or evidence to the grand jury; inculpatory hearsay evidence will be presented and considered by the grand jury; there will be no presumption of innocence; no requirement of proof beyond a reasonable doubt, only proof sufficient to establish the minimal standard of probable cause. The prosecutor alone will tell the jury what the law is and why they should indict; and the grand jury will do his bidding. As lawyers quip: they will indict a ham sandwich if the prosecutor tells them to. This sounds more like Star Chamber injustice than American justice.

And there is nothing in the constitution that mandates such a kangaroo proceeding. All the Fifth Amendment says is: "no person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury." The denials of due process come from prosecutorialy advocated legislative actions. The founding fathers would be turning over in their graves if they saw what they intended as a shield to protect defendants, turned into a rusty sword designed to place the heavy thumb of the law on the prosecution side of the scale.

Advocates of the current grand jury system correctly point out that a grand jury indictment is not a conviction. The defendant has the right to a fair jury trial, with all the safeguards provided in the constitution. But this ignores the real impact of an indictment on the defendant. Based on a one sided indictment alone, the "ham sandwich" can be fired from his or her job or suspended from university. Consider what happened to the Arthur Andersen company and its thousands of employees when it was indicted for obstructing an official proceeding by destroying records relating to one of its clients. 

Although Andersen was ultimately vindicated, the indictment itself forced it into bankruptcy causing a loss of thousands of jobs and millions of dollars in shareholder values. Many individual have been indicted on the basis of one sided grand jury prosecutions and subsequently acquitted after a fair trial. Many of these individuals also suffered grievously as the result of being unfairly indicted.

Consider the consequences of an indictment by the special counsel’s grand jury in this matter. Not a conviction – just an indictment handed down by a grand jury that heard only one side in secret. It depends, of course on who the indictment named. In the Nixon case, for example, the president was named as an unindicted co-conspirator by the Watergate grand jury. This meant that he could not even defend himself at a trial. I was on the national board of the ACLU at the time. And although I despised Nixon and campaigned for his opponent, I wanted the ACLU to object to the unfairness of a one sided grand jury naming him as an unindicted co-conspirator.

So I will be standing up for civil liberties during the duration of this investigation. As a civil libertarian I care more about due process and the rule of law than I do about politics. But many people conflate my advocacy for civil liberties with support for President Trump. I have been bombarded with tweets such as: "Alan loves Donald. He’s throwing him lifelines;" "Has he been hired by Trump? Time to come clean;" "@AlanDersh I thought you were a smart guy. After hearing you support Trumpie, guess not;" "Has Trump already hired @AlanDersh to defend him? Clearly sounds that way;" and "No matter the subject, he inserts himself in the conversation with a full-throated and nonsensical defense of Trump."

Let me be clear: I voted for Hillary Clinton and oppose many of President Trump’s policies. I would be taking the same position if the shoe were on the other foot – if Hillary Clinton had been elected and she were being subjected to an unfair process. Indeed I did do precisely that when she was threatened with prosecution. Remember the chants of "lock her up" during the campaign?

I will continue to monitor the current investigations into President Trump and his associates for any violation of civil liberties. I will call them as I see them, without regard to which side benefits.

And so should everyone who believes that even the President of the United States is entitled to benefit from the rule of law.

Thursday, May 11, 2017

Comey, continued

I've been asked to elaborate on my last two Comey blogs. Because I don't have time at the moment, here's a thoughtful comment by one of my loyal blogees, with which I agree entirely. (Thanks to lawyer BW.)


The focus right now is on James Comey and how he handled the Clinton investigation.  Remember, initially, it was an inquiry, not an investigation.  That was at the direction of Loretta Lynch.

It is my opinion that Barack Obama and Loretta Lynch entered into a conspiracy to protect Hillary Clinton from indictment at all costs and James Comey bought into it.

When the DOJ refused to convene a Grand Jury to support the inquiry or investigation, the table was set.  There would be no subpoenas.  There would be no search warrants.  There would be no compelled testimony of any sort.  Witnesses were invited to discuss.  Witnesses were allowed to have co-conspirators attend their meetings with the FBI investigators.  No records were kept of the discussion.  Co-conspirators were given immunity.  The primary target was never interviewed until the last minute and she was allowed to defend herself by having a poor memory.  The FBI then created a requirement for intent in a statute that expressly required only gross negligence.  Then the FBI Director decided that extreme carelessness was a better description of the actions of the co-conspirators and it was not equivalent to gross negligence so there could be no prosecution.

Comments yesterday indicated that the consensus opinion of those actually involved in the investigation was that there was sufficient evidence gathered to support a prosecution.  We will probably never know what their written report actually said.  Comey decided to grandstand and negate the work of the investigators.  I still think he took that action because he knew that if they were to follow protocol and forward the recommendation of the investigators to DOJ there would be no further action and the whole matter would have been swept under the rug.  Comey knew Clinton and her tribe members were guilty but there was never going to be any indictment of anyone.

The investigation was a sham and Comey payed the price for participating in it.

The focus should be on the corruption of power in the agreement between Obama and Lynch.