Saturday, July 30, 2016

Supreme Court Prescription to Settle Contraceptive Mandate Cases Remains Unfilled: Prognosis Uncertain

Government’s Latest Move Shifts Case from the Extraordinary to the Extrajudicial 

In my post of June 14 I was highly critical of the Supreme Court’s extraordinary decision in Zubik v. Burwell. Little did I know that the process would go from bad to worse. In an abdication of judicial responsibility, the parties were directed to settle their dispute about whether the Affordable Care Act’s (ACA) contraceptive mandate violates the freedom of religion of faith-based groups. The Court vacated the rulings of the courts of appeals and instructed these courts to “allow the parties sufficient time to resolve any outstanding issues between them.” Recently the defendants -- in the middle of the settlement discussions -- issued a formal Request for Information (RFI) via the Federal Register to solicit ideas on resolving this matter from anyone who has any ideas that might be helpful -- including the plaintiffs in these very cases. The cases originally were brought in federal court because plaintiffs believed that government agencies were violating their rights under the Religious Freedom Restoration Act, and now these agencies are asking for public comments from interested parties, including the plaintiffs, about how to resolve the dispute!

Wednesday, July 13, 2016

U.S. Appeals Court Sacks Brady's Petition for Deflategate Rehearing

With Time Running Out, Final Play at Supreme Court 

After losing to the NFL on appeal April 25, as reported in my post that day, the Court of Appeals today denied Tom Brady's petition for rehearingThis was expected, as rehearings typically are denied. While I previously stated that rehearing en banc and Supreme Court review are the legal equivalent of a Hail Mary pass, the truth is that Supreme Court review in a civil case like this, in which the government is not a party, is more like a quarterback completing a 100 yard pass in a nighttime blizzard. As he petitions for Supreme Court review, a process that will last several months, Brady can seek a stay of his suspension

Friday, July 8, 2016

You’ve Got Mail: Why Emailgate Ended This Way


To:       07/07/2016 04:27 PM      

From: The Conversational Lawyer 

Re: Emailgate – Why Did It End This Way?

No doubt you are breathing a big sigh of relief. After all this time, a scathing State Department inspector general report in May, and a lengthy statement by the FBI Director Tuesday that sounded like it would end with "and that is why the Bureau is recommending that Secretary Clinton be charged," you will not be charged with a crime after all. Attorney General Lynch confirmed that late Wednesday. 

The question everyone (but you) is asking is this: How did you avoid being charged? In trying to answer this question, I thought it would be useful to review the applicable law, the inspector general findings, the FBI findings, and some other high profile cases. My conclusion is at the end of this message.

The LawThe primary criminal law that was at issue, 18 U.S.C. §793(f), was originally part of the Espionage Act of 1917. It provides in part as follows:

§793. Gathering, transmitting or losing defense information
. . .
(f) Whoever, being entrusted with or having lawful possession or control of any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, note, or information, relating to the national defense, (1) through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed, . . .
Shall be fined under this title or imprisoned not more than ten years, or both.
The legal question comes down to this: Did your use of private servers and overall treatment of official email constitute a violation of this law? Keep in mind that unlike other subsections of §793, there is no intent or knowledge requirement; rather, gross negligence constitutes a violation. As you know, gross negligence is a term that comes from tort law. Negligence is generally defined as the failure to exercise the due care that a reasonable person would exercise under the circumstances. Gross negligence is defined in many ways, but typically is thought of as extreme or reckless negligence. In looking at Merriam-Webster’s online dictionary, I note that the first synonym for negligence is carelessness, and based on my experience, I do not see any difference between gross negligence and extreme carelessness. That may explain why the FBI Director said you engaged in extreme carelessness – that way he could say you technically did not violate the law but really did (see below).

State Department ReportI hate to bring this up, but remember what the State Department Inspector General (IG) had to say when he issued a lengthy report highly critical of the handling of emails and cybersecurity at State generally, including by you? The media focused largely on the portions concerning your tenure. Of note is the fact that you declined even to be interviewed. Perhaps most damning was the IG finding that there was no evidence you ever “requested or obtained guidance or approval to conduct official business via a personal email account on [your] private server.” As the IG report states, you “had an obligation to discuss using [your] personal email account to conduct official business” – although Department officials stated that they would not have approved your use of a personal email account to conduct State Department business. The FBI seems not to have focused on this issue at all, which is probably a good thing for you since the facts are a bit inconvenient here.

FBI FindingsThe FBI concluded as follows, as set forth in the written statement issued by Director Comey: 

  • You used several different servers, not just one, as well as several mobile devices, to communicate State Department business by email on a personal domain. 
  • While you turned over approximately 30,000 emails in 2014, the FBI located several thousand more.
  • Of the 30,000 emails, 110 emails in 52 chains contained classified information; 8 chains contained Top Secret information; 36 chains contained Secret information; and 8 contained Confidential information.
On the ultimate issue of whether a crime was committed, the FBI stated as follows:
  • “Although we did not find clear evidence that Secretary Clinton or her colleagues intended to violate laws governing the handling of classified information, there is evidence that they were extremely careless in their handling of very sensitive, highly classified information.”
  • “There is evidence to support a conclusion that any reasonable person in Secretary Clinton’s position, or in the position of those government employees with whom she was corresponding about these matters, should have known that an unclassified system was no place for that conversation. In addition to this highly sensitive information, we also found information that was properly classified as Secret by the U.S. Intelligence Community at the time it was discussed on e-mail (that is, excluding the later “up-classified” e-mails).”
  • “None of these e-mails should have been on any kind of unclassified system, but their presence is especially concerning because all of these e-mails were housed on unclassified personal servers not even supported by full-time security staff, like those found at Departments and Agencies of the U.S. Government—or even with a commercial service like Gmail.”
The FBI also concluded it is possible that hostile actors obtained access to your email.

As noted above, the end of the Director’s statement was a surprise – clearly in a good way for you – when he announced that, “[a]lthough there is evidence of potential violations of the statutes regarding the handling of classified information, our judgment is that no reasonable prosecutor would bring such a case.” 

Thank goodness for prosecutorial discretion, right?

Similar Cases That Might Have Hurt You  But Did NotTwo CIA Directors had trouble with classified information as well, but both of them (unlike you) were the subject of criminal charges. These cases could have been used as precedent against you. In 2015, former CIA Director David Petraeus agreed to plead guilty to a misdemeanor charge of mishandling classified materials, for which he received probation and a $100,000 fine. And in 1996, your husband’s CIA Director, John Deutch, resigned from his position after it was disclosed that he stored highly classified information on his home computer. Subsequently, Deutch agreed to plead guilty to a misdemeanor and pay a $5,000 fine; however, your husband pardoned him on his last day in office before the case was filed.

Wonder why those cases were not seen as relevant? Me too.

ConclusionSo why do I think you got a pass? A few reasons.

1. Too Big to Charge. As some banks are too big to fail, maybe some people are too big to charge. Being the presumptive Democratic nominee may have been the saving grace. No way the FBI Director wanted to be seen tying you up in a criminal case as you run for President.

2. Not a Clear Winner. The FBI Director is a former prosecutor and, like all prosecutors, he only wants to bring winning cases and likes it when defendants take a plea. Your story about wanting to shield your personal life is believable and a jury might very well accept that rationale. By the way, nice move having Huma lay that rationale out there in her recent deposition!

3. Not a Traitor. No one seriously believes that you were trying to aid our enemies or were even thinking that any of this could hurt the country. No, they know you well enough to understand that you were only worried about yourself. Careless yes; intent to harm the nation, no. Of course, while the statute has no intent requirement, it was still a factor.

4. Colin Powell. What does he have to do with this, you ask? Here is what the IG had to say:

Secretary Powell has publicly stated that, during his tenure as Secretary, he “installed a laptop computer on a private line” and that he used the laptop to send emails via his personal email account to his “principal assistants, individual ambassadors, and foreign minister colleagues.” Secretary Powell's representative advised the Department in 2015 that he did not retain those emails or make printed copies. Secretary Powell has also publicly stated that he generally sent emails to his staff via their State Department email addresses but that he personally does not know whether the Department captured those emails on its servers.
So Colin Powell used his own computer to conduct official business as Secretary of State, did not retain emails, and does not know if they exist. Admittedly, the rules at the State Department tightened up before you arrived, but does anyone think Director Comey would bring a case against you that might suggest indirectly that Powell acted improperly? 

5. Finally, as Tom Petty says, You Got Lucky

*     *     *     *     *

A few more things, although you probably thought of most of these because of your work on Watergate:

If you do win in November, you might want to check the oval office to make sure that Nixon's tape recorders were really removed, have the White House plumbers standing by in case of any leaks, call an exterminator to deal with bugs . . . and please, only use Snapchat for personal matters. 

Monday, July 4, 2016

Independence Day

A Brief Look Back -- 240 Years Later

Did you know that the Continental Congress actually declared independence from Great Britain on July 2? It did; and in a letter to Abigail from Philadelphia the next day, John Adams wrote: “The Second Day of July 1776, will be the most memorable Epocha, in the History of America. I am apt to believe that it will be celebrated, by succeeding Generations, as the great anniversary Festival.”

Indeed, the July 2 Congressional resolution was used in the last section of the Declaration of Independence, and states as follows: “That these United Colonies are, and of Right ought to be Free and Independent States; that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved . . . .” We celebrate July 4 as it is the day Congress adopted the formal and lengthier written Declaration.

Congress appointed a committee to draft the Declaration. As stated on his tombstone at Monticello, Thomas Jefferson, a committee member, was the author. But Jefferson, being the humble statesman that he was, originally wanted Adams to take the lead in drafting. In an 1822 letter to Timothy Pickering, Adams described how it was that Jefferson came to take the lead:
Jefferson proposed to me to make the draught. I said I will not; You shall do it. Oh No! Why will you not? You ought to do it. I will not. Why? Reasons enough. What can be your reasons? Reason 1st. You are a Virginian, and Virginia ought to appear at the head of this business. Reason 2d. I am obnoxious, suspected and unpopular; You are very much otherwise. Reason 3d: You can write ten times better than I can. “Well,” said Jefferson, “if you are decided I will do as well as I can.” 
Celebrating today, we must remember that this enterprise was fraught with great peril. In his July 3 letter to Abigail foretelling the celebrations to come, Adams also recognized the challenges that lay ahead.
You will think me transported with Enthusiasm but I am not. -- I am well aware of the Toil and Blood and Treasure, that it will cost Us to maintain this Declaration, and support and defend these States. -- Yet through all the Gloom I can see the Rays of ravishing Light and Glory. I can see that the End is more than worth all the Means. 
Adams and Jefferson both died on July 4, 1826, the 50th anniversary of the Declaration. Legend has it that the last words of Adams were that Jefferson survives, but Jefferson actually died a few hours earlier.

The official transcription of the Declaration at the National Archives is here