Judicial Watch Strikes Out

Today in court filings, the Department of State confirmed that the 30 emails that had been recovered from 15,000 emails Clinton had deleted or had not been located during State’s search of its records were not the “smoking gun” that Judicial Watch had promised Americans they would be.

Judicial Watch started smearing Clinton in August, as soon as the process for reviewing the 15,000 emails began.  Of the 15,000, only 30 (a tiny number in my line of work as a defense lawyer in government investigations) hit on very broad search terms, which likely included words like “Benghazi, “ambassador,” “al Qaeda”, and the names of the victims.

The fact that 30 emails hit on the search terms is not a story.  But, Judicial watch announced that the emails were “Benghazi-related” and raised “fresh doubts” about Clinton; and Trump piled on too.  Even though they had no idea: (1) the content of the emails; (2) whether they were in fact “Benghazi-related”; or (3) whether the “new” emails were duplicates of emails that had already been turned over to the FBI because they were work-related.

Turns out that all but three had already been turned over. Two were “near-duplicates” of emails that had been produced to the FBI (the only difference being that Clinton had forwarded the email with a “please print.”)  The sole remaining email was a touching personal note after Clinton’s Benghazi testimony from then-U.S. Ambassador to Brazil Thomas Shannon to Cheryl Mills, who forwarded it to Clinton. “I watched with great admiration as she dealt with a tough and personally painful issue in a fair, candid and determined manner” he said.

Once again, no scandal here.

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Trump’s Epic Immigration Flip-Flop

Trump’s “pivot” on immigration policy announced last night is the equivalent of Hillary Clinton deciding she is against college affordability.  It’s a flip flop of epic proportions.  Even as Trump scrambles to put together cohesive policies that are attractive to more voters, the fact remains that he leaves behind him a string of impossible campaign promises (deportation squads) and divisive comments (Judge Curiel).

Trump hammered Republican rivals Rubio, Cruz and Bush for their immigration positions in the primaries, but yesterday’s messaging sounded more like President Obama’s plan than any Republicans’.  Through DAPA* and DACA**, Obama sought to prioritize deportation to the most dangerous criminals, and grant temporary legal status to children born here through no fault of their own and illegal immigrant parents whose children are U.S. citizens.  Trump says he wants to obey the existing immigration laws, and be “firm” but “fair.” Sounds familiar.

Finally, Trump’s allegation that Clinton and Obama want “open borders” is a falsehood that needs correcting.  I have worked on very complex immigration cases. I immigrated legally. I know first-hand the web of laws and regulations that govern who stays and who leaves, and the vetting process required to be here legally.  I have written about the private prisons on our borders that hold women and children who have escaped violence in central America in detention.  We do not have open borders.

*DAPA – Deferred Action for Parental Accountability

**DACA – Deferred Action for Childhood Arrivals

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Trump TV Coming Your Way November 9th?

Trumps’s campaign reshuffle, announced today, is another indicator that he’s pursuing multiple paths with his presidential campaign.  Presumably, Trump wants to win. But if he cannot win, the obvious move is to parlay his new fame, reach, and audience, into an expansion of the Trump business empire.

Kellyanne Conway is a seasoned pollster and will provide Trump with something no campaign manager before her could: hard data and an instinct for where to funnel resources. Trump has been making poor strategic decisions, like his rally in eternally blue Connecticut last weekend. Conway has the experience and knowledge to stop Trump from making those kinds of mistakes.  If he’ll listen to her, of course.

Breitbart Executive Chairman Steve Bannon’s addition is a head-scratcher in some respects.  Trump reportedly already has a giant of conservative media – Roger Ailes – advising him.   And Bannon’s fringe positions are a huge turn-off to middle America – the voters that Trump needs to win.  So with the addition of Bannon, I’m even more convinced than ever that Trump’s thinking beyond the election.  Trump’s ceiling of about 40% of voters is too low to win the presidency.  But it’s a huge pool from which to draw a TV audience. The the GOP nomination has legitimized his positions on the issues, and greatly enhanced his stance as a media and political force. So watch for the launch of Trump TV – coming to you some time after November 9th. Losing the presidential election could be the best darn thing that’s ever happened to Donald Trump.

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GOP’s Baseless Perjury Charges Against Clinton

House Republicans Jason Chaffetz and Bob Goodlatte wrote this week to U.S. Attorney Channing D. Phillips, alleging that Hillary Clinton perjured herself four times in sworn testimony before Congress in 2015.  Their call for another Clinton investigation and prosecution is a transparent attempt to harm Clinton’s presidential chances as their own candidate tanks in the polls. It is highly, highly unlikely to result in charges or a conviction.  Why? It’s simple. Because of the law, and the facts.

First, the law: 18 U.S. Code § 1621 requires perjury to be committed with “intent,” or as the statutory language states, “willfully” stating under oath something that the speaker “does not believe to be true.”  There is nothing in the four allegations against Clinton that indicate she intentionally lied.

The facts: There are four alleged instances of perjury.

1.  Clinton said there was nothing marked classified that she sent or received. That’s actually true. The three emails in question had partial markings like this: a “(c)” in the body of the email.  Not only is that not a complete “classified” demarcation under Federal law, the emails themselves  did not in fact contain classified material.

2. Clinton said that her team “went through every email.” This is true.  They relied on header information and key word searching.  Which is standard practice in my line of business, government investigations. The GOP is trying create a lie where there was none, by saying her team didn’t read every email. She never said they did.

3. Clinton said there was only one server, and that’s true.  During her entire tenure as Secretary of State, there was just one server set up in her home.  After she left office, her data was migrated to an external service that used multiple servers.

4. Clinton said she provided all the work related emails that she had, but the FBI found several thousand that were not handed over to the Department of State. Although this is the closest call, there is no evidence that Clinton did not make best efforts to provide all of her emails she believed to be in her possession.  And there is nothing damaging in the additionally discovered emails that suggest Clinton intentionally lied about what she provided to the FBI.

In sum, the GOP is hoping to inject more doubt about Clinton’s honesty into the news cycle. Unlike her opponent, whose multiple, daily falsehoods are demonstrably untrue, there is nothing in the facts or law that support a prosecution for perjury.

Case closed.


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Gingich Call for Deportation Based on Sharia Adherence Unconstitutional

Newt Gingrich on Thursday called for the United States to test every person with a Muslim background to see if they believe in Sharia law, and deport those who do. It looked like a Hail Mary for the Trump VP spot as news about Mike Pence having taken the job spread about.  It represented ignorance of what Sharia actually is. And it plays right into the hands of terrorists who want to divide Western society.  From a legal perspective, it violates federal law and the First, Fourth, Fifth and Fourteenth Amendments.  Simply put, the idea is nonsensical from a policy, legal, and Constitutional perspective.

The first glaring flaw in Gingrich’s proposal is that approximately 77% of Muslims living  in the United States are citizens.  On that basis alone, they have a full suite of constitutional rights meaning they cannot be expelled under our immigration laws, no matter what their “crime,” no more than he can as a U.S. citizen.

Second, the proposal violates the First, Fourth, Fifth and Fourteenth Amendments to the Constitution.

  • The First Amendment guarantees freedom of religion. Gingrich’s religious test would persecute people on the basis of their beliefs, something the First Amendment utterly prohibits.
  • His test also violates the Fifth and Fourteenth Amendment’s guarantees of equal protection under law because Muslims would be treated differently than non-Muslims under our immigration laws.
  • Putting his test to work would probably require violations of the Fourth Amendment’s prohibition against unreasonable searches and seizures.  First, because it would require surveillance without probable cause, and second, because it would require racial or religious profiling.

Gingrich knows better.  Unlike the GOP front-runner who he faithfully advises, Gingrich is familiar with our immigration laws and the Constitution. What ISIS seeks to do is literally to divide and conquer us.  Our greatest challenge in times of chaos is to hold true to our American Ideals. And our leadership should be exemplifying them, not threatening to discard them.

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#Enough: On the Senate’s Fight Over Gun Control

With overwhelming public support for reasonable gun control measures like background checks (about 90% of all Americans, demonstrated in five polls in 2015) the GOP is playing with political fire, and with lives, by continuing to resist legislation that is both constitutional, and makes our schools, movie theaters, college campuses, bars, work places, and public spaces safer.

Today we expect a vote on Senator Dianne Feinsteins’s proposed legislation to ban anyone on the terrorist watch from purchasing a gun, if they are on the terrorist watch list currently, or have been in a five year period prior to the date of attempted purchase. Republicans, on the other hand, want restrictions limited to the much smaller no-fly list.  And they want the reverse of the Democrat’s procedural safety net. They don’t want a ban, they want a 72 hour waiting period, after which the buyer can purchase the gun, unless the FBI obtains a court order stopping the sale.

Conservative hero Antonin Scalia was  the author of District of Columbia v. Heller, the Supreme Court case that ruled that the Second Amendment right to keep and bear arms is an individual right, and not a group/militia right.  In that ruling, he also made clear that the right is not unlimited.  In fact, the Heller decision was narrow – holding only for the proposition that government cannot create an absolute ban on handguns kept in the home for self-defense purposes. The Ninth Circuit Court of Appeals ruled a week ago that sensible limitations on obtaining a concealed-carry permit are constitutional.  Simply put, there is room within our constitutional protections – both the Second Amendment and the Fifth and Fourteenth Amendments’ due process protections – for universal background checks, mandatory waiting periods, and prohibitions against suspected terrorists legally obtaining weapons.

Claims that the Democrats’ proposal will prevent 700,000 Americans from purchasing guns (made at the end of 2015 by Marco Rubio) are incorrect. In fact, there are about 700,000 people on the terrorist watch list, and based on the most recently available data, only about 14,000 of them are American permanent residents or citizens.  The smaller no-fly list contains about 16,000 names, only about 500 of which are Americans. In short, there are zero constitutional implications for the vast majority of people who will be affected by the Democrat’s ban, and the Democrats’ proposal gives people wrongly included on the lists due process to correct the error and buy guns freely and legally.

At the heart of this disagreement is the power of the Federal government and how much due process protection should be enshrined in law for law-abiding citizens wrongly placed on the terrorist watch list. Democrats say ban first, ask questions later.  Republicans say the sale should go forward unless the government acts to stop it. But shouldn’t common sense prevail?  If you’re on the watch list incorrectly, you are motivated to actively seek to remove yourself from it.  If you are on the watch list for good reason, the likelihood that you’ll pursue your claim to buy a gun legally is almost non-existent.

Here’s hoping our elected representatives can use some common sense, follow the will of the people, and make meaningful change out of unthinkable tragedy.

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Obama endorses Hillary Clinton, Sanders losing leverage by the minute.

President Obama has just endorsed Hillary Clinton for President. It’s now clear what he and Bernie Sanders were discussing in the Oval office this morning. Not only if Sanders would capitulate, but when.  It’s also clear that Sanders was told about the forthcoming endorsement – President Obama’s video specifically mentions his meeting with Sanders (and we’ve learned it was taped yesterday).  Conventional wisdom – based on Sanders’ speeches and his post-Oval Office statement today – has been that he will hold out until after the Washington, D.C. Primary on Tuesday.  It’s probably still going to be next Tuesday, and Sanders is likely to lose that Primary. The thing is, Sanders is losing leverage by the minute now that the President has endorsed Hillary Clinton as the presumptive nominee.

Sanders could have been in a stronger negotiating position if he’d declared on Tuesday and  joined forces with Clinton’s moment (and momentum).  By staying in after a very, very popular President endorsed his rival (Obama has an 81% approval rating among Democrats), with Elizabeth Warren and others set to do the same, he has placed himself on the wrong side, both temporally and in terms of the Democrats’ heroes, of Clinton’s candidacy.

Clinton supporters were shocked at how critical he became of Clinton, just as her candidacy became essentially inevitable.  His attacks were a series of hail Mary passes that only accomplished putting words in Republican’s mouths.  It’s likely that Sanders has not left the race yet because he’s not only processing his own failed campaign, but trying to figure out how to live up to the hopes of the movement that he has built.

But Sanders has to think about his legacy.  And the people in his movement who need him to make good decisions about his Presidential chances in order to advance his – and their – agenda.  If he fights on too long, he’ll be remembered for a bitter exit, as someone who ignored an historic night for Clinton and women in this country, and as someone who, if he had timed things right, could have had the most power and leverage at the Democratic National Convention of any losing candidate in history.



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Trump’s Racist “Bias” Accusations Undermine Our Judicial System

In a case of brilliant timing, the Supreme Court today issued a ruling outlining the contours of judicial bias and recusal, holding that  due process requires that a judge should recuse him- or herself if they had a significant personal involvement in the case at some earlier point in time, and were involved in a “critical decision involving the defendant’s case.”  The case provides an important counterpoint to the allegations of bias made by Donald Trump against Federal District Court Judge Gonzalo Curiel.

The case is Williams v. Pennsylvania, and the underlying case is a death penalty case, where a former prosecutor who signed off on the death penalty was, some decades later, on a panel of judges who reviewed a petition from the same defendant. The Supreme Court decided that the judge’s presence as an adjudicator in the case violated Mr. Williams’ due process rights.

We can, and should, draw a sharp contrast between what the Supreme Court has sketched out as a permissible reason for recusal, with the allegations made by Donald Trump about Judge Curiel’s “bias” in the Trump University class action.

Not only has there been no recusal motion filed by Trump’s lawyers, there is both no evidence of improper treatment by Judge Curiel (in fact quite the opposite), and a Judge’s ethnicity is not (and should never) be the basis for seeking to remove a judge from a case.

Judges are people. They come to the bench with life experience, with an ethnic background, with a value system. But the system works because they take an oath to not apply those “biases” to the cases or litigants before them.

Trump’s overt allegations of bias against the judge and the plaintiff’s law firm in the Trump University case  - with absolutely no evidence of any potential bias being played out – undermines the system we need to have in place to keep the social order.  And it’s worse because he, as the potential leader of our nation, has a role in preserving the social order.

Certainly, bias can motivate inappropriate behavior, and it should be called out.  Just weeks ago, the Supreme Court overturned a death penalty conviction of an African American defendant because the prosecutor impermissibly chose an all-white jury.  But to call bias out with no evidence of its existence is irresponsible, dangerous, and frankly, unpresidential.

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Ryan’s Tepid “Endorsement” is all Leverage

Donald Trump’s presumptive nomination is the very definition of a political rock and hard place for Republicans who preferred a more traditional and principled candidate.  This dilemma looms largest for Paul Ryan, the highest ranking Republican in office, who has an election year fight of his own coming up.

Paul Ryan has finally come around, but it’s very clear that his support for Trump is contingent.

Ryan’s tepid non-endorsement yesterday in the Janesville Gazette (he only said he’d “vote” for Trump over Clinton…) was more manifesto than note of support.  Importantly, it was full of conditions,  the breaking of which sets Ryan free of any commitment to Trump.  Simply put, Ryan is laying out the House’s road map for a Republican presidency, and his support of Trump is based squarely on Trump’s acquiescence to Ryan’s plan.

Ryan devoted much of his column to the House policy agenda, to be released in the coming weeks. It’s focused on the tax code, healthcare, separation of powers, national security, foreign policy, regulatory policy and welfare.  He then said “to enact these ideas, we need a Republican president to sign them into law.”  Ryan was clear that the house policy agenda “has been the main focus of [the] dialog” with Trump, and that after talking with Trump, Ryan feels “confident he would help us turn the ideas in this agenda into laws to help improve people’s lives.”

In short, if Trump doesn’t play ball, Ryan can publicly walk away saying Trump broke his commitment to the ideas, the policy, and Ryan himself.

Ryan is still between a rock and a hard place.  But by imposing his plans on Trump and conditioning his support on Trump’s follow-through, Ryan has created both leverage and an exit strategy in one fell swoop.



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Trump, Ryan, and Hold-your-Nose Unity

Today’s summit in Washington, DC between Donald Trump and Paul Ryan is the clash of the man who has harnessed an angry Republican base with populist  (and often not Republican) positions, and the man who protects the Republican congressional majority and is a member of the ideology-driven Republican elite.

Paul Ryan can’t not back Trump as the presumptive nominee. But right now, he has serious concerns about trump’s tone and trump’s positions. As to tone, Trump’s agitating hyperbole and insults have turned vast swathes of the electorate off. He is blowing up the 2012 Growth and Opportunity Project, rally by rally.  As to positions, Trump has campaigned on ideas that are opposite to long-held Republican positions on trade, foreign policy and Planned Parenthood and new positions on transgender rights. He has been wobbly at best on abortion.

Because of gerrymandering and population patterns, the Republican Party has an almost insurmountable advantage in the House. That said, Ryan knows that he has to find a way to get behind Trump. And Trump knows he needs the Republican Party behind him to have any hope of effectively bringing a challenge to Clinton and the Democratic party’s machinery and money.  Trump and Ryan will make their peace eventually.  It will take time and energy and compromise, and it will be a fragile peace at best.  But for both sides, hold-your-nose unity is a lesser evil than a fractured Republican party simply giving the Presidency – and perhaps Congress – away to Democrats.

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