Add Microsoft And Another Congressional Staffer To The List Of Entities Targeted In Trump DOJ Leak Investigations

from the just-waiting-on-the-yahoo!-revelations-now dept

The hits just keep on coming. Gag orders are being lifted or expiring and we're finding out even more about DOJ leak investigations under Trump. Under AGs Jeff Sessions and Bill Barr, the DOJ targeted journalists, Congressional reps... even readers of USA Today.

The DOJ went after journalists working for the New York Times, Washington Post, and CNN while trying to hunt down the source of leaks, sending subpoenas to third party service providers hoping to acquire phone records and email metadata.

The most recent revelation exposed the DOJ's targeting of Rep. Adam Schiff -- one of Trump's many, many punching bags -- in a leak investigation. The DOJ sent a grand jury subpoena to Apple, seeking metadata for 109 identifiers, specifically 73 phone numbers and 36 email addresses. The information sought covered not only Schiff but his staffers and family members. Another Congressional Rep, Eric Swalwell, was targeted by the same subpoena.

It appears no third party was left out of the DOJ's attempt to hunt down leakers. The latest news on the DOJ's leak hunting pulls in Microsoft.

Microsoft in 2017 received a subpoena for a congressional staff member's personal email account, a company spokesperson said via email. The staffer hasn't been identified.

This subpoena came with a gag order attached.

The spokesperson added: "In this case, we were prevented from notifying the customer for more than two years because of a gag order. As soon as the gag order expired, we notified the customer who told us they were a congressional staffer."

And another two years before it was actually made public. I assume this didn't seem newsworthy to the staffer in 2019 when they were informed of the subpoena by Microsoft. But in 2021, with news about the DOJ's questionable investigative techniques breaking almost daily, it apparently seemed relevant enough to bring this to the media's attention.

Both President Biden and the DOJ have promised to stop seeking information about journalists and their sources during future leak investigations. Presumably government employees like the Congressional reps and staffers are still considered valid investigational targets when the DOJ looks for leakers. Whether this will continue to include family members of government employees remains to be seen.

The Inspector General of the DOJ has opened an investigation into these investigations. This will possibly result in even more information about its targeting of journalists coming to light. Unfortunately, it may also result in an exoneration of the DOJ, as its guidelines for seeking information about journalists were, until recently, pretty expansive. This means the DOJ could cause considerable constitutional trouble without breaking the rules it wrote for itself. If nothing else, we can hope the DOJ's promise to exclude journalists from leak investigations outlasts the current administration.

Filed Under: adam schiff, doj, eric swalwell, gag order, jeff sessions, leak investigations, surveillance, whistleblowers, william barr
Companies: apple, microsoft

Federal Court Approves Reforms Targeting The Chicago Police Department

from the but-there's-no-federal-backup-to-come-to-the-rescue dept

It's not much but it's a start. Chicago's police force has spent several years vying for the title of "Worst PD in America." Between its routine deployment of excessive force to its off-the-books "black site" where arrestees are separated from their humanity and their Constitutional rights, the Chicago PD has been a horrific mess for several years.

A federal judge has approved a consent decree that would enact reforms aimed at repairing the trust the PD has damaged for decades.

In a 16-page motion, U.S. District Judge Robert Dow stated that while it’s not perfect, the historic decree is “an important first step toward needed reforms of the Chicago Police Department and its policies.”

“As noted above, the Court is under no illusion that this will be an easy process,” Dow wrote. “It took a long time to get to this place, and it may take a long time to get out of it. With that said, there are good reasons to think that the conditions and incentives may be in place to start making progress right away.

The consent decree contains a long list of reforms that cover everything from enhanced use of de-escalation techniques to breaking the PD's unofficial "code of silence." The numerous changes will be overseen by a federal monitor to ensure they're being followed.

The consent decree was met with the expected resistance from the Chicago PD and its union. A bit more unexpectedly, the consent decree was met with very vocal opposition from the federal government. Former Attorney General Jeff Sessions repeatedly claimed the decree would result in more dead bodies piling up in Chicago, pointing to a single study with questionable findings of increased violent crime following the imposition of consent decrees. Sessions termed this violent crime increase the "ACLU effect," attempting to portray greater respect for communities and their residents' Constitutional rights as the flash point of upticks in criminal activity.

The City of Chicago disagreed with Sessions and stated it was uninterested in rolling back the proposed changes. It pointed out the DOJ agreed with the proposed consent decree all the way up until Sessions took office and didn't see any reason to back out of it just because the new AG was more enthralled with locking people up than respecting their rights.

Opponents of the consent decree claim the city can't afford to have better cops. In his order [PDF], Judge Dow says this is nonsense.

Other commenters have focused on the financial burden of the decree going forward, as evidenced by the $2.85 million maximum annual budget for the monitoring team. This is a large expenditure of public money by any measure. Yet is is a tiny fraction of what the City has spent paying out judgments and settlements, not to mention lawyers (both outside and inside counsel), for civil rights litigation over the past few decades. See [158] at 9. Indeed, had a monitoring team been billing the City at the rate of $2.85 million per year since 1790, when Jean Baptiste Point du Sable first set up camp at the mouth of the Chicago River, the total bill of $652.65 million would not equal the City’s litigation-related payouts in civil rights actions since 2004.

Will these changes be sustained and result in better policing in Chicago? That's tough to say. The people it affects most (police officers) want it the least and, historically, PD brass has been slow to roll out changes and extremely reluctant to hold officers accountable for violating internal policies, much less federally-ordered consent decrees. This time around, the city will have zero support from the DOJ, which, as a matter of policy under this administration, will not act as an enforcer for federal consent decrees or open investigations of law enforcement agencies found to be perpetually violating the rights of the people they're supposed to be protecting.

Filed Under: chicago, chicago pd, chicago police, civil rights, consent decree, doj, jeff sessions, robert down

FBI Officially Has A Leak Investigation Unit

from the because-why-not dept

The Obama Administration was never a fan of leakers and whistleblowers. The Trump Administration isn't either. And it's continuing to ramp up investigations in response to a steady stream of leaks that tend to arrive moments after executive proclamations in order to undermine or contradict whatever has just been proclaimed.

Fired company man Jeff Sessions thought the best plan to tackle leaks was prosecuting the recipients: journalists. Not really the best plan of action in a country with enshrined speech rights, but that's the way things are being done in the nation's capital. True to form, the DOJ has gone after leakers with a vengeance, threatening to rewrite all of Obama's personal prosecution records.

The FBI is getting in on the action, according to a document obtained by Ken Klippenstein of The Young Turks. The word "espionage" is tossed around, but most of what the Trump Administration has dealt with has been embarrassing, rather than a concerted effort to hand secret documents over to our country's enemies. Nonetheless, hunting leakers is official FBI business.

"By law, the FBI is the lead federal agency responsible for the investigation of violations of the espionage laws of the United States,” one document, bearing the subheader “Functions and Mission Statement” reads.

“The complicated nature of — and rapid growth in — unauthorized disclosure and media leak threats and investigations has necessitated the establishment of a new Unit,” the document continues.

The file, dated November 10, 2017, is heavily redacted — as are the rest of the records provided to TYT. One document, dated May 24, 2018, shows that the Bureau’s Resource Analysis Unit approved a request by its Counterintelligence Division to establish a new cost code, apparently for the new leaks unit.

As Klippenstein notes, the obtained document [PDF] indicates Jeff Sessions was a man of words, rather than a man of action. The establishment of the unit -- meaning the point at which it started being funded -- didn't occur until May 2018. Sessions claimed in August 2017 the FBI already had a leak-fighting unit in place and that leak probes had already increased by 800%.

Sessions' leak-targeting premature ejaculation may have been meant to scare government employees into keeping the feds' secrets. If so, it wasn't too effective. The rate of leaks has slowed from "daily," but there's no shortage of insiders willing to spill dirt on the chaotic White House to journalists.

The government isn't opposed to leaks, per se. It just likes to ensure the narrative it wants to project makes its way to the public before the truth even gets its pants on. That hasn't worked for years, as the Obama Administration discovered prior to its war on leakers and whistleblowers. It's not going to work here either, but it does raise the odds the First Amendment is going to suffer for the sins our government fails to keep covered up.

Filed Under: doj, fbi, investigation, jeff sessions, leaks, retaliation, whistleblowers

DOJ, Trump Decide The Federal Government Needs To Give Chicago The Police Department It Doesn't Want

from the Judge-Dredd-appointed-to-advisory-role dept

In a move that's tone deaf if nothing else, the DOJ is going to court to block a consent decree put in place to overhaul Chicago's unconstitutional policing. This announcement comes days after a jury convicted Chicago police officer Jason Van Dyke of second-degree murder for killing 17-year-old Laquan McDonald. He was also convicted of 16 counts of aggravated battery -- one count for each bullet he fired at the teen as the teen walked away from him.

This also follows more tone-deafness from the "law and order" presidency. Trump's speech to a law enforcement convention contained several comments about Chicago and its perceived police problem. But the problem Trump sees is police not policing hard enough. Trump wants stop-and-frisk brought back -- one of the key modifications contained in the consent decree.

Stop-and-frisk programs encourage unconstitutional stops. Just ask the NYPD, which saw its program changed drastically following a lawsuit brought against the city. Police officials and then-mayor Mike Bloomberg promised a dramatic spike in crime if officers weren't allowed to engage in suspicionless stops/frisks. This never materialized. Crime went down across the board.

Trump thinks a return to unconstitutional practices will solve Chicago's violent crime problem, but there's no evidence out there that provides a basis for this belief. Violent crime is already declining in Chicago, even without unconstitutional stops. What Trump wants is something people in Chicago don't want. And that includes the people who matter -- like Mayor Rahm Emanuel.

Mayor Rahm Emanuel said he welcomes federal reinforcements — in the form of more ATF, DEA and FBI agents — to “take down gang leadership” and stop the “drug trade.”

But that’s not the kind of help Donald Trump is offering. Returning to the more intensive “stop-and-frisk” procedures would run contrary to Chicago’s ongoing effort to repair shattered public trust between citizens and police, the mayor said.

“The failed policies he’s talking about have no place for a city that’s working together with communities about how to build — not only trust, but a collaborative and cooperative relationship,” the mayor said Monday.

“So, while resources are always welcome, the idea of what President Trump is talking about is not only not welcome — it’s antithetical to what we’re working on, and that is about a strong, pro-active, professional police department.”

Nonetheless, the DOJ will try to block the consent decree that might rebuild some of the trust the Chicago PD has thoroughly destroyed over the past several years. Why? Because the president said so.

Following an order from President Trump, Attorney General Jeff Sessions today announced that he is providing more resources for law enforcement in Chicago and filing a brief opposing a proposed consent decree on Chicago police.

The rationale is even worse. According to AG Jeff Sessions, the spike in violent crime in Chicago (which, again, has declined 20% over the last year) is due to police being hampered by the Constitution and not enough respect being shown by the general public.

There is one government institution, and one alone, that has the ability to make Chicago safer—that is the Chicago Police Department. Our goal should be to empower it to fulfill its duties, not to restrict its proper functioning or excessively demean the entire Department for the errors of a few. Make no mistake: unjustified restrictions on proper policing and disrespect for our officers directly led to this tragic murder surge in Chicago.

At a fundamental level, there is a misperception that police are the problem and that their failures, their lack of training, and their abuses create crime. But the truth is the police are the solution to crime, and criminals are the problem. The results of the ACLU settlement in November 2015, as revealed by Judge Cassel’s study, established this fact dramatically, conclusively, and most painfully for the City of Chicago. When police are restrained from using lawfully established policies of community engagement, when arrests went down, and when their work and character were disrespected, crime surged. There must never be another consent decree that continues the folly of the ACLU settlement.

"Unjustified restrictions on proper policing" apparently includes the Fourth Amendment. That's just the beginning of this garbage. From there, Sessions moves on to cite the only study on policing he agrees with -- one that decides correlation equals causation and ties increases in violent crime to a civil rights lawsuit settlement. The study has nothing to say about similar cities undergoing similar modifications to police programs that have not experienced violent crime increases. It's almost as if its authors started from their conclusion and worked backwards.

Sessions loves this faulty study and thinks it provides some sort of scientific basis for encroaching on civil liberties under the guise of making the city safer. But he's wrong about this, just like he's wrong about everything else in his statement.

Zachary Fardon, a former US attorney working in Chicago, says the DOJ's plan to block the consent decree will make things worse for the city and the Chicago PD. The problem isn't Constitutional restraints on policing. The problem is the relationship the PD has with the people it's supposed to protect.

What’s at stake here is not just constitutional policing. Lives are at stake. People are dying. Children are dying. Our city suffers, year after year.

Law enforcement is not the entire solution, but it’s a big part. A consent decree will give our cops support, training and the credibility they need to engage in effective and constitutional policing. A consent decree will give our South and West side citizens greater trust in our officers and institutions, and greater safety in their neighborhoods.

If Sessions spent more time in violence-afflicted neighborhoods, he would know that we still have kids who are growing up more afraid of police than of gangs. When that changes, we mark the beginning of a new Chicago.

The Chicago Tribune's editorial board is even more scathing in its assessment of Jeff Sessions' bumptious interloping:

Thank you for your interest in Chicago’s police consent decree, now in its final stages of development. We are confident your “statement of interest” will be given due consideration by U.S. District Judge Robert M. Dow Jr., who will hold public hearings on the draft agreement later this month.

We have just one question: Where were you in early 2017, when Chicago Mayor Rahm Emanuel pledged to follow through on the consent decree prescribed by the U.S. Department of Justice you took over when the White House changed hands?

Oh, now we remember: You wanted no part of it. You believed then, as you do now, that worrying about the civil rights of suspects gets in the way of fighting crime. Instead of doubling down on the hard work that had been done in Chicago, you tried (unsuccessfully) to torpedo Baltimore’s consent decree, which was then at this same public hearing stage.

If citizens don't trust the police, they won't report crimes, provide testimony, or supply evidence. All of this exacerbates the city's violent crime problem. When they see officers unwilling to do their jobs at all, let alone Constitutionally, they see there's no point in asking them for help. And when they see officers routinely escape punishment for misconduct and excessive force deployment, they begin to believe the cure might be at least as bad as the disease.

As the editorial points out, if Sessions really wanted to solve Chicago's problems, he wouldn't be trying to block a consent decree crafted with an eye on rebuilding destroyed trust. It ends with this extended middle finger.

Chicago doesn’t need or appreciate your drive-by assessment.

Trump and Sessions both believe the problem with American policing is that officers aren't being given the respect that is their God-given right. That's the beginning and end of it. The Constitution is just standing in the way of enforcing the law. Both are telling law enforcement agencies what they want to hear: that they're persecuted and misunderstood. Not a single member of this administration is willing to tell them what they need to hear: that destroyed trust takes time to rebuild and it can never be restored by engaging in the same behavior that destroyed it.

Filed Under: 4th amendment, chicago, consent decree, doj, donald trump, jeff sessions, policing, stop and frisk

FBI's Latest Crime Stats Continue To Undermine AG Sessions' Criminal Apocalypse Fantasies

from the WE'RE-ALL-GONNA-DIE!-EVENTUALLY.-OF-NATURAL-CAUSES,-MOST-LIKELY... dept

Crime rates continue to remain at historic lows. We're safer than we've been since the mid-1960s. We should be celebrating this. Law enforcement should be celebrating this. But there's no celebration. Certainly not at the federal level. Attorney General Jeff Sessions has made remarks at a number of law enforcement events in recent months. And they've all been loaded with doom, gloom, and questionable citations.

Here's Sessions on September 19, 2018:

Colossal mistakes have been made by politicians and leaders that have had particular catastrophic consequences for the people of cities like Chicago, Baltimore, and St. Louis.

From 1991 to 2014, we saw an historic nationwide decline in violent crime. Murder dropped by half. Violent crime overall dropped by half.

Rape decreased by more than a third, and robbery plummeted by nearly two-thirds.

But nationally in the last two years of the previous administration, the trends ominously reversed.

From 2014 to 2016, the violent crime rate went up by nearly seven percent. Assaults and rape went up nearly 10 percent. Murder shot up by more than 20 percent.

Here's Sessions a week later:

Big mistakes were made, some saw police as the problem. And as a result, in the last two years of the previous administration, the violent crime rate went up by nearly seven percent. Assaults went up nearly 10 percent. Rape went up by nearly 11 percent. Murder shot up by more than 20 percent. That’s what was happening when he took office.

This was especially shocking because from 1991 to 2014, violent crime had dropped by half. Murder dropped by half. So did aggravated assault. Rape decreased by more than a third, and robbery plummeted by nearly two-thirds.

From a month earlier:

We know whose side we’re on. We’re on the side of the good people, public safety, law, faith, and community. We defend our people and our values against outlaws.

You know the challenges we face. From 2014 to 2016, the violent crime rate stopped declining and went up by nearly seven percent. Robberies went up. Assaults went up nearly 10 percent. Rape went up by nearly 11 percent. The murder rate increased by more than 20 percent.

These numbers are shocking. They cannot continue.

But the numbers aren't shocking. There have been increases over the last couple of years, but violent crime rates are still lower than they were a decade ago and have decreased considerably over the last 20 years. The population of the US grew by 55 million over that period. Despite that, 300,000 fewer violent crimes were reported in 2018 than in 1998.

Sessions wants Americans to believe a couple of years of increases in isolated areas represents an irreversible trend brought on by a collective lack of respect for law enforcement and interference by groups that defend the public's rights, like the ACLU.

The FBI's latest crime stats have been released. They show the categories Sessions is hot and bothered about have reversed their two-year "trend."

Compared with last year, the national rate for property crime has declined by 3.6 percent, the violent crime rate is down by 1 percent, and the homicide rate has decreased by 1.9 percent.

What will the administration do with crime rates that won't conform with the narrative? Will Trump and co. take credit for the reduction, citing their full-blooded support of anything law enforcement-related? Or will it simply be glossed over to take potshots at activists for somehow ruining policing with their insistence on Constitutional law enforcement activities?

The messages AG Sessions delivers won't change. As the head of the DOJ, he has something to sell. It isn't justice, despite the name over the door. It's prosecution, which is only part of the justice equation. All crime news is bad news, even as crime rates continue to decline. Welcome to America, where the crime rates are at historic lows but everyone thinks each successive year is the worst it's ever been.

Filed Under: crime, doj, jeff sessions, stats

State Attorneys General Really Want To Go After Big Internet Companies; But Claim It's About Privacy, Not Bias

from the we'll-see... dept

We've written a few times about how Attorney General Jeff Sessions' plan to meet with State Attorneys General about going after big internet companies for perceived political bias was a clear First Amendment problem. He still held the meeting earlier this week, and it appears that at least some of the attendees agreed that targeting how the platforms present content was likely a non-starter, even if Sessions apparently kept trying to raise it as an issue. From a Washington Post report that quotes a few people who were in attendance:

Attorney General Jeff Sessions opened the meeting by raising questions of possible ideological bias among the tech companies and sought to bring the conversation back to that topic at least twice more, according to D.C. Attorney General Karl A. Racine.

Of course, the fact that the others in attendance mostly pushed past the question of political bias isn't exactly good news for the internet platforms, as the AGs apparently focused on other ways they could and should target the companies:

“We were unanimous. Our focus is going to be on antitrust and privacy. That’s where our laws are,” Jim Hood, Mississippi’s attorney general, said in an interview.

Of course, it seems like almost journalistic malpractice to quote Jim Hood talking about going after social media platforms without mentioning the fact that he was the centerpiece of a the conspiracy by the top movie studios to attack Google with nonsensical complaints about illegal things he found while doing searches on Google. If you don't recall, the Sony hack revealed a plot by the legacy movie studios to have their lawyers effectively run an investigation for Jim Hood -- and even the NY Times revealed that his eventual subpoena to Google was written by the MPAA's lawyers. A judge reviewing Google's legal fight with Hood noted that it seemed pretty clear that Hood's actions were done in "bad faith." So... consider me at least marginally skeptical that Hood is an objective voice on what is and is not appropriate for a state Attorney General to investigate regarding the big internet platforms.

Obviously, if there are real antitrust violations, then that's a valid issue to explore. But, so many of the attacks themselves seem to be a hell of a lot more "politically biased" than any of the claims about how the internet companies themselves are politically biased.

And while there was some talk about the privacy practices of the various platforms (which, while they may be concerning, it's not clear how any of them violate any laws...), some of the talk also involved an astounding incomprehension of the encryption discussion. And, for that, we'll go back to Jim Hood again:

For other states, the issue was the tech industry’s relationship with law enforcement. That included talk about Apple and “how we in law enforcement depend on cellphones.” Hood said that Apple has “waved at us and didn’t use all their fingers” in its handling of encryption.

That is not at all an accurate portrayal of what happened. Apple was making sure that everyone's information was safe by using strong encryption. The FBI sought to undermine that safety by demanding that Apple make a massive, and very dangerous, change to its software.

Indeed, it's quite incredible for Hood to bring this up in the context of the AGs discussing "privacy" concerns about how the big tech companies handle data. If you want them to protect data, you want them to use strong encryption. Yet, here, Hood is whining that Apple dared to actually protect people's privacy.

So... if tech companies actually protect people's privacy with strong encryption, they get yelled at and threatened with legal action by Attorneys General. And if they don't protect people's privacy... they get yelled at and threatened with legal action by Attorneys General. Just what exactly are they supposed to do?

Again, it is entirely possible that these companies have violated various laws. Perhaps they're in violation of antitrust laws, though the evidence there is lacking so far. But, from everything that's been said coming out of this meeting, it does not inspire much confidence that there are reasonable and objective reasons for taking legal actions against these platforms. Instead -- and this is all too typical for state AGs -- there appears to be a lot of grandstanding and bluster without much substance.

Filed Under: antitrust, encryption, first amendment, free speech, internet, jeff sessions, jim hood, privacy, social media
Companies: apple, facebook, google

Jeff Sessions Says If You Want More Shootings And Death, Listen To The ACLU And Black Lives Matter

from the on-the-plus-side,-Trump-seems-to-want-him-gone dept

Jeff Sessions is still quoting a bad study to score points with law enforcement officials. Earlier this year -- while speaking to the National Association of Police Organizations -- he cited a study by two Chicago lawprofs that supposedly drew a connection between violent crime spikes in Chicago and a settlement with the ACLU, reached after years of police misconduct and abuse.

The Attorney General's point was clear: misconduct and abuse are what's keeping criminal activity at bay. Constitutionally-sound police work lets the criminals win. The problem with Sessions' assertions -- and the law profs' conclusions -- is several cities with consent decrees or settlements in place have seen violent crime rates continue to go down, indicating there's really no provable connection between violent crime rates and so-called "limitations" on police activity.

Nevertheless, he persists. Speaking to the VALOR Survive and Thrive Conference, Sessions chose to quote the same faulty study again. (Quick sidebar: VALOR stands for "Preventing Violence Against Law Enforcement Officers and Ensuring Officer Resilience and Survivability."Really.) [h/t Ryan Reilly]

More people were murdered in Chicago in 2016 than in New York and Los Angeles combined—even though Chicago has one-fifth of the population of those two cities.

The situation was so bad that nearly a quarter of the nationwide increase in homicide that year happened in Chicago alone.

This did not need to happen. In 2015 and 2016, Chicago had the same police on patrol and the same prosecutors in court, but dramatically different results.

So what happened?

According to a study by two professors from the University of Utah—one of whom is a former federal judge—the consent decree mandated a major change in Chicago’s community-based policing—including Terry stops—that allowed this bloodshed to take place.

The professors found that the increased crime cost a staggering $1.5 billion and noted that 78 percent of its victims were African-American and 16 percent were Latino. Ninety-four percent of the victims were minorities.

What happened is officers refused to do their jobs. Some saw the agreement as a trap. Others just didn't feel like making an effort.

The ACLU consent decree required police officers to submit a detailed report to the ACLU, a former federal judge, and a publicly available database after every single Terry stop.

John’s predecessor as United States Attorney, Zachary Fardon, said in an open letter to the City that the ACLU agreement “[told] cops if you go talk to those kids on the corner, you’re going to have to take 40 minutes to fill out a form, and you’re going to have to give them a receipt with your badge number on it.”

And he noted that as a result, by January 2016, “the city was on fire” because “the rule of law, law enforcement, had been delegitimized.” That is a devastating analysis.

Reporting by the Chicago Sun Times confirms this, stating in January 2016, that Chicago officers say that “they fear getting in trouble for stops later deemed to be illegal and the new [required forms] take too much time to complete.”

Roughly the same thing happened in New York City, but there were no increases in violent crime. Officers were supposed to justify stops and produce documentation. The difference is NYPD officers continued to make stops, rather than abandon their duties. There are still unanswered questions about the legitimacy of some NYPD stops, thanks to missing mandatory paperwork, but the court-ordered overhaul of the department's stop-and-frisk program did not result in the apocalypse promised by the outgoing mayor.

Simply put, Chicago police officers don't want to engage in Constitutional policing -- not if it means spending a bit more time filling out paperwork. The supposed "gotcha" moments will never occur if stops align with the Constitution, the agreement, and include the required paperwork. Abdicating your responsibilities has unpleasant outcomes, especially if you're in the business of law enforcement. A spike in violent crime is one conceivable result. But don't blame the agreement. Blame the officers for their lack of interest in respecting the rights of others.

Sessions goes even further in these remarks, though. He blows past the so-called "ACLU effect" the Chicago law profs claimed to have pinpointed in their study to blame the ACLU (and others) directly for spikes in violent crime.

There's a clear lesson here: if you want more shootings and more death, then listen to the ACLU, Black Lives Matter, or Antifa. If you want public safety, then listen to the police professionals who have been studying this for 35 years.

This is the sort of thing high-ranking officials shouldn't be seriously thinking, much less saying out loud in front of other public officials in law enforcement. This is Sessions saying the ends justify the means and groups seeking accountability from their public servants have the blood of crime victims on their hands just because they want officers to respect the Constitution.

Then he contradicts this assertion by citing falling crime rates in Los Angeles and New York -- both of which have been hit with settlements and consent decrees that altered how officers go about their daily business. Somehow he feels this doesn't undermine his "ACLU effect" comments or his willingness to saddle ACLU and BLM with the end result of police officers refusing to do their jobs.

And if it isn't the ACLU killing citizens, it's everyone who doesn't immediately stand and salute the Thin Blue Line flag.

The proof is in. It can no longer be denied: disrespect and lack of support for police officers has real world consequences.

Leaders must understand and affirm the important and dangerous work of our officers. Failure to support our professionals undermines the pro-active policing that has been shown to save lives.

The proof isn't in. The study he cites decides correlation is causation. The examples he gives about other major US cities undermine the vaunted "ACLU effect" conjured up by Chicago law profs. All Sessions has is some anecdotes and a deep disdain for anyone that isn't a cop or a prosecutor. American citizens are apparently whiny children who wouldn't know good policing if it stopped them on the street, threw them to the ground, and stood on their necks.

Respect is earned. Sessions -- and those echoing his sentiments -- believe it's something certain people are owed. And the more he tries to collect on their behalf, the more likely he is to diminish the respect the American public has for him.

Filed Under: black lives matter, crime, doj, jeff sessions, police, police violence
Companies: aclu

DOJ And State Attorneys General Threatening Social Media Companies Over Moderation Practices Is A First Amendment Issue

from the that's-not-how-any-of-this-works dept

Earlier this month, President Trump made it explicitly clear that he expects the Jeff Sessions' DOJ to use its power for political purposes, protecting his friends and going after his enemies:

And, while the DOJ hasn't done that concerning indictments of Trump's friends and cronies, it appears that Sessions may be moving towards it with another "enemy" in the mind of Trump. Over the last few weeks Trump has also made it clear that he (incorrectly) believes that the big internet companies are deliberately targeting conservatives, and has threatened to do something about it.

On Wednesday, just after Twitter and Facebook appeared before Congress, the DOJ released a statement saying that it was investigating whether or not actions by the big internet companies was "intentionally stifling the free exchange of ideas." The full statement was short and to the point:

We listened to today's Senate Select Committee on Intelligence hearing on Foreign Influence Operations' Use of Social Media Platforms closely. The Attorney General has convened a meeting with a number of state attorneys general this month to discuss a growing concern that these companies may be hurting competition and intentionally stifling the free exchange of ideas on their platforms.

The competition question is one that the DOJ's antitrust division clearly has authority over, but alarms should be raised about the DOJ or state AGs arguing that these platforms are "stifling the free exchange of ideas on their platforms." Because while -- on its face -- that might sound like it's supporting free speech, it's actually an almost certain First Amendment violation by the DOJ and whatever state AGs are involved.

There are lots and lots of cases on the books about this, but government entities aren't supposed to be in the business of telling private businesses what content they can or cannot host. Cases such as Near v. Minnesota and Bantam Books v. Sullivan have long made it clear that governments can't be in the business of regulating the speech of private organizations -- though those are both about regulations to suppress speech.

But there are related cases on compelled speech. Most famously, perhaps, is West Virginia State Board of Education v. Barnette which said schools' can't make kids say the Pledge of Allegiance. In that case, the court ruled:

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.

Forcing platforms to carry speech would clearly go against that.

Miami Herald v. Tornillo actually seems even more directly on point. It was in response to a Florida state law demanding "equal space" for political candidates, but the court ruled, pretty definitively, that as private publications, the government could not compel them to host speech they did not want to host. The ruling even discussed the issue of a lack of competition -- which Sessions' statement alludes to -- and concludes that's not an excuse for compelling speech. In CBS v. the Democratic National Committee, the Supreme Court clearly noted:

The power of a privately owned newspaper to advance its own political, social, and economic views is bounded by only two factors: first, the acceptance of a sufficient number of readers -- and hence advertisers -- to assure financial success; and, second, the journalistic integrity of its editors and publishers.

In other words, if a private speech hosting platform is too one-sided, that is for the market to decide, not the government.

So, yeah, there are concerns raised here about freedom of expression... but it's by Attorney General Jeff Sessions and whichever State Attorneys General decide to participate in this clown show. Oh, and just to put a little more emphasis on why this is clearly a political move designed to suppress free speech rights? So far only Republican Attorneys General have been invited -- a point I'm sure any court would take note of.

Filed Under: compelled speech, content moderation, first amendment, free speech, jeff sessions, pressure, state attorneys general

Head Of Department Of Justice Bashes Justice System Because It Blocks Too Many Of Trump's Orders

from the small-words-from-a-small-mind dept

Recently, Attorney General Jeff Sessions attended the Eighth Circuit Judicial Conference. Considering he was speaking to members of the judiciary, it seems odd he would have used this occasion to deliver a rant against the judicial system.

As a prosecutor, Sessions greatly benefited from the system he now maligns. The justice system barely enters the lives of those being prosecuted. An adversarial system designed to provide the accused with due process is rarely engaged. The outcome is predetermined, except for arguments over minor details. As the Supreme Court wrote in a 2012 decision, the criminal justice system is a downhill slope for prosecutors who rarely need more than a light shove to put someone behind bars.

Ninety-seven percent of federal convictions and ninety-four percent of state convictions are the result of guilty pleas. [...]

The reality is that plea bargains have become so central to the administration of the criminal justice system that defense counsel have responsibilities in the plea bargain process, responsibilities that must be met to render the adequate assistance of counsel that the Sixth Amendment requires in the criminal process at critical stages. Because ours “is for the most part a system of pleas, not a system of trials,” Lafler, post, at 11, it is insufficient simply to point to the guarantee of a fair trial as a backstop that inoculates any errors in the pretrial process. “To a large extent . . . horse trading [between prosecutor and defense counsel] determines who goes to jail and for how long. That is what plea bargaining is. It is not some adjunct to the criminal justice system; it is the criminal justice system.”

Having been a beneficiary of a barely-engaged court system for so many years (and now overseeing more beneficiaries as the head of the DOJ), you'd think Sessions would be grateful for all the years the courts rendered themselves pretty much invisible.

Instead, Sessions wants to complain about a supposedly unfair system that keeps acting as a check against the Executive Branch… you know, exactly what it's supposed to be doing.

I am the top lawyer for the Executive Branch. It is a co-equal branch. It too is entitled to proper respect from the courts. Our Assistant U.S. Attorneys, advocating for legal positions—even if the judge may not agree—are due proper respect.

Judges are not sent from Olympus. They are not always correct. Indeed, our appeals in a number of cases have borne fruit in whole or in part.

Some of the erroneous rulings have been quite costly to the taxpayers, have delayed executive action, and have engendered criticism of the President, and the Department of Justice, in the media and various groups.

In Sessions' mind, "co-equal" does not mean counterbalanced or of equal power. Sessions' adheres to an Animal Farm version of equality, where the Executive Branch is more equal than the court system he feels isn't handing out enough respect. This is a truly bizarre -- and somewhat frightening -- take on the legal challenges filed against Trump's executive orders.

Some challenges have been denied. Others have been granted. Injunctions have been issued, with a few of those rolled back after an appeal. This is the way the judicial system is supposed to work, but Sessions wants to hate on it for functioning exactly how it's designed to.

We have a government to run. It is not the duty of the courts to manage this government or to pass judgment on every policy action the Executive Branch takes.

Ah, but it is the duty of the courts to "manage the government" or "pass judgment on policy actions." If policies are challenged in court -- by citizens -- the court has to take the case. Just because Sessions doesn't like some of the outcomes doesn't mean the system isn't working. But it is plainly disingenuous to claim judges have no business passing judgment. JFC, it's right in the name.

For all the talk about "co-equal," it's clear Sessions -- as the head of the goddamn Department of Justice -- feels the justice system has too much power.

We are also defending the constitutional structure of the federal government against nationwide injunctions—orders by a single district judge that block the entire Executive Branch from enforcing or implementing a statute, regulation, executive order, or policy.

You could also call them “non-party injunctions” or “global injunctions”—because they apply across America or even the world, and grant relief, whether they want it or not, to those who are not parties to the case.

Scholars have not found a single example of this type of remedy in the first 175 years of the Republic. But the Executive Branch has been hit with 22 in less than two years’ time in office.

Wow. That sures sounds like the judiciary has it in for the President. Let's see if this unprecedented thing has any precedent…

This goes beyond politics. This has been a problem for administrations of both parties. Until President Trump, the President with the most limitless injunctions was President Obama. Before him, it was President Clinton.

That's Sessions undercutting his own narrative. What this looks like isn't some grotesque misuse of judicial power. No, administrations regularly setting new injunction records indicates to me the Executive Branch has routinely overstepped its Constitutional boundaries before being reined in by courts -- courts designed from the ground up to act as check against overreach by other branches of the government.

The very thing he complains about -- being "held back" by the judicial branch -- he claims to celebrate towards the end of his prepared remarks.

Our Constitution has governed us from the horse and buggy age to the digital age. Ours is the oldest and most resilient constitution in the world. We don’t need conservative judges or liberal judges. As Chief Justice Roberts testified, we just need judges to adjudicate disputes, calling the balls and strikes as they are without taking sides in the game.

But we must be vigilant to our Constitution's design and to its most central feature: the separation of powers.

That is what the American people rightly expect from those who enforce the laws of the United States.

Let's be vigilant to protect the separation of powers, says Sessions, as he suggests the judicial branch might need some trimming if it won't stop standing in the way of questionable executive orders and policies. Good lord. You'd expect this sort of nonsensical drivel from internet randos, not the head of the DOJ.

Sessions is like anyone else: the courts are working when they deliver decisions he likes and a complete failure when they don't. That's fine. And that's expected, especially when partisan agitation seems to be at an all-time high. But that's not the sort of thing you tell a judiciary conference. That's the crap you save for preaching to the converted.

The real ugliness, though, is this: Sessions obviously feels the courts should serve the Executive Branch, no matter how many times he says he values the system of checks and balances that prevents the judiciary from being a subsidiary of the presidential administration. Fortunately, Sessions only has the power to bitch about it. If he could do any real damage to the court system itself, he'd be dangerous. This mini-rant shows Sessions is a small man with a small mind and a willing participant in spreading the Trump Administration's narrative of victimization -- something painfully embarrassing to observe when its being issued by the people leading one of the most powerful nations in the world.

Filed Under: attorney general, courts, doj, donald trump, jeff sessions, judiciary, separation of powers