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Crafty_Dog

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The EPA decision
« Reply #250 on: July 01, 2022, 10:01:21 AM »
Supreme Court Narrows EPA’s Ability to Regulate Carbon Dioxide Emissions
By Matthew Vadum June 30, 2022 Updated: June 30, 2022biggersmaller Print

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The Supreme Court ruled 6–3 on June 30 that the Clean Air Act doesn’t give the U.S. Environmental Protection Agency (EPA) widespread power to regulate carbon dioxide emissions that a popular theory says contribute to global warming.

Chief Justice John Roberts wrote the court’s majority opinion (pdf) in West Virginia v. EPA, court file 20-1530. Roberts was joined by the court’s other five conservatives. The court’s three liberal justices dissented.

While “capping carbon dioxide emissions at a level that will force a nationwide transition away from the use of coal to generate electricity may be a sensible ‘solution to the crisis of the day,’” Roberts wrote, quoting a 1992 precedent, “it is not plausible that Congress gave EPA the authority to adopt on its own such a regulatory scheme in Section 111(d)” of the Clean Air Act.

“A decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body,” he wrote.

West Virginia and 18 other states challenged the authority the Clean Air Act provides the EPA.

In 2016, the Supreme Court overturned the Obama-era Clean Power Plan (CPP), which expanded controls over the industry. Next, the deregulation-minded Trump administration reversed course, easing control on the industry with its Affordable Clean Energy Rule (ACE Rule).

On Jan. 19, 2021, the U.S. Court of Appeals for the District of Columbia Circuit struck down the ACE Rule, restoring some of the EPA’s authority in American Lung Association v. EPA (pdf). The court held that the EPA, under Trump, had misconstrued section 7411(d) of the Clean Air Act.

In the new opinion, the Supreme Court reversed the D.C. Circuit decision and remanded the case “for further proceedings consistent with this opinion.”

In Justice Elena Kagan’s dissent, she criticized the court majority for a decision she said “strips” the EPA of the power Congress gave it to respond to “the most pressing environmental challenge of our time,” citing Massachusetts v. EPA (2007).

“Climate change’s causes and dangers are no longer subject to serious doubt. Modern science is ‘unequivocal that human influence’—in particular, the emission of greenhouse gases like carbon dioxide—’has warmed the atmosphere, ocean and land.'”

“Whatever else this Court may know about, it does not have a clue about how to address climate change. And let’s say the obvious: The stakes here are high. Yet the Court today prevents congressionally authorized agency action to curb power plants’ carbon dioxide emissions. The Court appoints itself—instead of Congress or the expert agency—the decision maker on climate policy. I cannot think of many things more frightening.”

West Virginia Attorney General Patrick Morrisey, who previously told The Epoch Times that the EPA is trying to transform itself from “an environmental regulator into a central energy planning authority,” praised the Supreme Court.

“For many years, we’ve argued that EPA only had a narrow bit of authority to regulate carbon emissions,” Morrisey, a Republican who brought the appeal, said at a press conference.

“I think that the court today amplified that point. And once again, they also made clear that when you have something this big, something with vast economic and political significance, then that represents an extraordinary question. And that means Congress needs to step in, as opposed to the unelected bureaucrats.

“We know that over the last year and a half, the Biden administration has tried to run roughshod over the American economy with respect to its energy agenda.

“We want to make sure that the Biden agenda is limited by basis of what Congress authorized these agencies [to do],” he said.


“Our founders envisioned” that “Congress and not the unelected bureaucrats” should make decisions “about the major issues of the day.”

“They didn’t want to just have these unelected bureaucrats reach out and try to seize power where it didn’t exist,” Morrisey said.

U.S. Sen. Bob Menendez (D-N.J.) criticized the ruling and the six conservative justices.

“As the devastating impacts of climate change are becoming ever-more present, it is mind boggling and deeply alarming that the Supreme Court today has decided to hamstring the EPA’s authority to regulate greenhouse gases. This ruling not only restricts the agency’s ability to limit air pollution from the second-largest source of emissions in America, it also undermines the landmark Clean Air Act that gave it such authority,” the senator said.

“Make no mistake, with this devastating ruling in West Virginia v. EPA, the conservative majority of the Court continues to take our country backward and more worrisome, it opens the door to far-reaching implications for how other federal agencies generally create regulations to implement existing legislation moving forward.”


Crafty_Dog

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The Intercept: The Scorched Earth Strategy of RICO
« Reply #252 on: December 23, 2022, 07:46:53 AM »


https://theintercept.com/2022/12/16/corporate-rico-environmental-advocate/

The Scorched-Earth Legal Strategy Corporations Are Using to Silence Their Critics
Illustration
Weeks before he was murdered, Victor Hugo Orcasita presented his wife with a letter describing his last wishes.

Orcasita, a union leader, had been pushing for better conditions at his workplace, a mine in northern Colombia owned by a subsidiary of the Alabama-based coal company Drummond. Then the death threats started coming in. He believed that the armed strangers who had started appearing around the mine’s cafeteria would soon make those threats a reality.

“He foresaw his death,” said his widow, Elisa Almarales Viloria.

On March 12, 2001, paramilitary gunmen dragged Orcasita and another union leader, Valmore Locarno, from a company bus as the men returned home from work. The gunmen shot Locarno on the spot and carried Orcasita off in the bed of their pickup truck. His body was found the next day. He’d been shot in the head, his teeth knocked out.

The miners’ union was convinced that Drummond was involved in the murders. They suspected that the company was secretly paying the paramilitary group that executed their leaders. Ultimately, a Drummond food service contractor who ran the mine’s cafeteria was convicted of plotting the murders and sentenced to 38 years in prison.

To make the case that the company was complicit in the killings, the union turned to Terry Collingsworth, a lifelong human rights attorney based in Washington, D.C.

Victims suing multinational corporations for alleged crimes committed abroad face steep odds. Collingsworth has made a specialty of these uphill battles, devoting his career to holding companies accountable in American courts for human rights abuses overseas. In his struggle with Drummond, he collaborated with activist groups, spoke out in the media, and wrote letters to Drummond’s business partners accusing the company of “hiring, contracting with, and directing” the paramilitaries who committed the murders.

Collingsworth’s decision to file suit in the United States made Orcasita’s widow hopeful that justice would prevail. For years, she had felt that justice would be impossible in Colombia due to Drummond’s political clout.

“What we were most excited about was bringing the lawsuit in Alabama,” she said. “There it would not be so easy for them to traffic their influence.”

Collingsworth lost an initial trial in 2007, when a jury found there wasn’t clear evidence tying the company to the crimes. Another of his lawsuits was dismissed for being too similar to the first. But Collingsworth continued to press his case, offering new witnesses with firsthand testimony implicating Drummond.

Then, in March 2015, the case took a surprising turn.

Drummond had returned fire in the legal fight with an unusual accusation. The company charged that Collingsworth — an advocate who recently brought a case before the U.S. Supreme Court — had led a “multifaceted criminal campaign” to extort Drummond into paying a costly settlement. This campaign, Drummond alleged, was in fact a racketeering conspiracy as defined by the Racketeer Influenced and Corrupt Organizations Act, better known as RICO.

Drummond’s charges represent a scorched-earth legal strategy in which corporations are turning the tables on attorneys and advocates who accuse them of wrongdoing. The technique was popularized by the elite corporate law firm Gibson, Dunn & Crutcher, whose clients include a who’s who of America’s most powerful companies. Representing the oil giant Chevron, Gibson Dunn convinced a judge to block one of the largest environmental verdicts ever reached by deploying a novel formula: using the civil provisions of RICO to charge opposing attorneys with racketeering.

Companies that have used RICO against their accusers say they brought the charges on themselves by committing fraud, bribery, and extortion. In Chevron’s case against environmental attorney Steven Donziger, a federal judge agreed; in the case against Collingsworth, a judge ruled that there was enough evidence of malfeasance to allow discovery. Human rights and environmental advocates contend that the true purpose of the cases is to send attorneys and activists a message: Going toe-to-toe with heavyweight corporations can lead to personal ruin.

“Companies with functionally limitless resources can come in and bigfoot like this, and no one can withstand it.”
Legal experts say some plaintiff’s attorneys made themselves vulnerable to RICO claims because they operated at the most aggressive edge of their field, overstepped ethical lines, and by their own admission made mistakes. By shifting the spotlight to these attorneys’ conduct, corporations effectively sidestepped the original allegations against them. Following these victories, other companies adopted similar theories to target advocacy groups directly.

If the goal is to hold attorneys accountable for unethical behavior, RICO is an odd choice. George Washington University law professor and international human rights attorney Ralph Steinhardt noted that RICO is a “very heavy club to swing” when there are more direct penalties, like sanctions, which punish the advocate without invalidating the entire case.

“One wonders why you would bring out the big guns of racketeering to send a message,” he said. “It’s a take-no-prisoners approach that’s intended to distract from whatever good faith allegations there may be.”

Ken White, a former federal prosecutor who specializes in First Amendment law, said responding to alleged misconduct by opposing attorneys with RICO charges is “like going after raccoons knocking over your trash cans with a tactical nuke.”

What’s missing, White says, is a universal mechanism to secure quick dismissals of baseless RICO claims. “Companies with functionally limitless resources can come in and bigfoot like this, and no one can withstand it,” White said.

Climate activists are gathered outside Gibson Dunn office to protest against the Chevron Corp, New York City, June 10, 2021.
Climate activists gather outside the Gibson Dunn office in New York City to protest against Chevron on June 10, 2021.

Photo: Tayfun Coskun/Getty Images

The RICO Playbook
As scientists issue dire warnings about climate change, advocates have turned to the courts and public campaigning to try to impose consequences on companies they accuse of serious attacks on the environment. Energy and extractive industry giants targeted by these efforts have been particularly eager to turn the tables by deploying this no-holds-barred strategy.

One of the world’s biggest oil companies, accused of dumping billions of gallons of toxic waste in the Amazon rainforest, won the first high-profile victory that relied on this approach. Drummond filed RICO charges in response to allegations that it financed the murder of union leaders who threatened the productivity of its coal mines. A pulp and paper company accused of destroying forests and the energy company behind the Dakota Access pipeline followed soon after, bringing RICO claims against environmental campaigners and anti-pipeline protesters.

In each of these cases, the accused racketeers were environmental and human rights attorneys, Greenpeace and other environmental groups, or Indigenous land and water rights activists.

The RICO Act, originally passed in 1970 to help prosecutors go after the mafia, includes civil provisions that allow private parties to allege a racketeering conspiracy. Most civil RICO claims are filed in business disputes, while others have been brought against political groups from anti-abortion protesters to animal rights activists. These suits require a high bar of evidence: They must prove a pattern of at least two “predicate” crimes such as bribery, fraud, or money laundering; that the perpetrators worked together in a criminal “enterprise”; and that the perpetrators acted with criminal intent.

Nonetheless, RICO claims offer powerful incentives to plaintiffs. If a judge allows the case to go forward, the defendants are subject to extensive discovery in which a well-funded corporate law firm can bury them in paperwork. If the company wins and can establish damages, those damages are automatically tripled.

“When we really think about what these suits are about, it’s fear.”
The success of early cases has helped build a body of law that opens the door for even more aggressive uses of the statute. The most recent corporate RICO cases have sought to define common public advocacy techniques such as negative media campaigns that allegedly contained false claims as predicate offenses for racketeering. The financial and reputational costs of defending these claims can make them devastating to their targets even if they ultimately fail.

“These RICO cases are easier to file than they are to win,” Steinhardt said. “Their intimidating purpose is served by their filing or their pendency.”

Deepa Padmanabha, deputy general counsel for Greenpeace USA, said that even though her team was awarded more than $800,000 in legal fees after successfully defeating RICO claims, the cost of defending the case was even higher.

Padmanabha said that two RICO suits would have cost the organization a total of more than a billion dollars if it had lost. The goal of the charges, she believes, was to caution the environmental movement that even the largest organizations were not safe from ruin.

“When we really think about what these suits are about, it’s fear,” Padmanabha said.

Corporate lawyers seem to be betting that the strategy will have staying power. In October 2020, Gibson Dunn announced a new practice in Judgment and Arbitral Award Enforcement, offering its services to creditors or debtors seeking to litigate existing judgments. The practice’s website highlights “its representation of Chevron Corporation in its successful RICO suit” and boasts that the firm “excels at defending companies and individuals against fraudulent arbitration awards and foreign judgments.”

Evan Mascagni, policy director for the Public Participation Project, an organization that fights against abusive lawsuits, said the RICO strategy threatens to overwhelm the legal system by allowing deep-pocketed companies to deploy endless resources to silence critics and defy judgments against them.

“I think if we accept this as a society, as a country, we’re saying we’re going to give incredibly powerful multinational corporations the ability to hijack our legal system,” Mascagni said.

The lawyer of Ecuadorean people affected by Texaco-Chevron, Steven Donziger, speaks during a press conference on March 19, 2014 in Quito.
Steven Donziger speaks during a press conference on March 19, 2014, in Quito, Ecuador.

Photo: Rodrigo Buendia/AFP via Getty Images

A Victory for Chevron
The RICO strategy was most famously deployed in 2011 by Chevron in its bitter legal conflict with attorney Steven Donziger.

At the time, Donziger was the lead lawyer pursuing massive damages against the oil company for toxic pollution in the Ecuadorian Amazon. Chevron inherited the lawsuit when it acquired Texaco, which had allegedly left hundreds of open pits of sludge in the rainforests where it operated, causing cancer deaths, miscarriages, and birth defects among the area’s mostly Indigenous residents. As the prospects of a multibillion-dollar judgment grew higher, Chevron enlisted the help of Gibson Dunn.

In February 2011, Gibson Dunn attorneys filed a civil RICO suit in New York accusing Donziger and his colleagues of running a racketeering conspiracy. They charged that Donziger and his team secretly controlled a key independent expert appointed by the Ecuadorian court to assess pollution damages. By the time of Donziger’s trial, they added the accusation that Donziger had bribed an Ecuadorian judge to allow his team to ghostwrite the judgment against Chevron.

Chevron provided hundreds of thousands of dollars in benefits to Alberto Guerra, the witness who claimed he’d facilitated the bribery and served as a liaison between Donziger’s team and the Ecuadorian judge. The benefits included relocating Guerra and his family from Ecuador to the United States, where the company supplied him with a $12,000 monthly salary. Chevron has said that it relocated Guerra to ensure his safety and that the payments were to compensate him for the cost of providing his evidence.

The company’s case was bolstered by Donziger’s own words, obtained through discovery of materials that included outtakes from a documentary film. In one clip, Donziger discussed the size of a possible judgment against Chevron and speculated that his team could “jack this thing up to $30 billion.” In draft testimony in 2013, Donziger conceded that he “did make errors along the way” but challenged the legitimacy of the proceedings against him.

As the RICO case headed for trial, Chevron made a strategic move. Roughly two weeks before the trial date, it dropped its request for damages and sought only to block enforcement of Ecuador’s $9.5 billion judgment. That meant the case would no longer be heard by a jury but decided solely by Judge Lewis Kaplan, a federal district judge in Manhattan who had ruled in the company’s favor in earlier motions.

In March 2014, Kaplan ruled in favor of Chevron, barring U.S. enforcement of the Ecuadorian judgment and holding that private parties are entitled to seek relief from foreign courts’ decisions under civil RICO — a crucial green light for the strategy that Gibson Dunn had developed.

Kaplan concluded that Donziger’s team had not only secretly written the Ecuadorian court’s ruling, but also submitted false evidence and made hidden payments to the court-appointed expert. “The wrongful actions of Donziger and his Ecuadorian legal team would be offensive to the laws of any nation that aspires to the rule of law,” Kaplan wrote in his opinion.

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How the Environmental Lawyer Who Won a Massive Judgment Against Chevron Lost Everything
Critics have raised questions about irregularities in the case against Donziger. Guerra later changed key details in his testimony, including the nature of the alleged bribe agreement and the dates of trips in which he claimed to have worked on the case. Computer analysis also showed the judge in question had a running draft of the judgment saved on his hard drive for months, undermining the ghostwriting claim. Still, the case set in motion a stunning downfall for Donziger. The one-time star of the environmental bar ended up serving time in federal prison on contempt charges stemming from his refusal to comply with orders from Kaplan after the RICO decision. Meanwhile, Chevron avoided paying the multibillion-dollar judgment for the toxic sludge that remains in the Ecuadorian Amazon.

In an emailed statement, Gibson Dunn noted that an arbitration panel established through a trade agreement between the United States and Ecuador found that Texaco, Chevron’s predecessor, had complied with a pollution remediation plan approved by the Ecuadorian government, releasing the company from liability. Critics contend that the remediation plan failed to clean up the damage and did not cover claims by private plaintiffs.

In response to questions about Guerra, the firm said Donziger exaggerated the importance of his testimony and pointed to Kaplan’s statement that he would have “reached precisely the same result in this case even without the testimony of Alberto Guerra.” Gibson Dunn added that Kaplan’s RICO ruling, which was unanimously affirmed by a panel of judges on the 2nd U.S. Circuit Court of Appeals, showed that the firm’s advocacy had uncovered serious wrongdoing.

“As for Gibson Dunn’s work successfully exposing fraud by unscrupulous lawyers like Mr. Donziger who seek to rip off vulnerable people in weak legal systems overseas based on lies, this is laudable work vindicating the rule of law,” William Thomson, a partner at Gibson Dunn who was part of its Chevron team, wrote in the statement.

Donziger maintained that his contacts with the Ecuadorian expert were legal and appropriate under Ecuadorian law, and that the ghostwriting charges were fabricated.

“Chevron used a civil racketeering case and false witness testimony from a person who is an admitted liar to try to criminalize me,” Donziger told The Intercept and Type in a written statement. “They wanted to use this bogus RICO case to try to get people to forget about the human devastation Chevron caused in Ecuador.”

Undated photo of a open air coal mine in La Guajira province, Colombia.
An open-air coal mine in Colombia’s La Guajira Department.

Photo: Jeffrey Tanenhaus

Witnesses in Dispute
About a year after Kaplan blocked the Ecuadorian judgment against Chevron, Drummond filed RICO charges against Collingsworth.

Although the company had already prevailed against several of his lawsuits, Collingsworth forged ahead with new legal actions, adding witnesses who offered firsthand testimony alleging that the coal company was complicit in the union leaders’ murders.

One of these witnesses was an imprisoned former paramilitary commander called El Tigre, or the Tiger, who testified that Drummond provided regular payments to his unit. Another key witness was Jaime Blanco, the food contractor who was ultimately convicted of the murders, who said Drummond used his company as a conduit to funnel money to the paramilitaries and directed them to commit the murders.

Collingsworth made payments to El Tigre’s family members and helped arrange financing for Blanco’s legal defense when he agreed to testify. He said the funds he provided to El Tigre’s family were security payments to help the family relocate in order to avoid violent retaliation by the paramilitaries, Autodefensas Unidas de Colombia, which the U.S. State Department designated as a terrorist group in 2001. In response to a court order, Collingsworth disclosed similar payments to relatives of three ex-paramilitary witnesses, but he failed to include the payments to El Tigre and two other ex-paramilitaries, as well as his arrangement with Blanco.

Drummond’s media office did not respond to multiple phone calls and emails requesting comment for this story, and attorneys for Drummond declined to comment.

Colombian authorities have backed up key elements of Collingsworth and El Tigre’s account. In December 2020, the Colombian Attorney General’s Office charged the current and former presidents of Drummond’s Colombian subsidiary with conspiracy in the union leaders’ murders. The 149-page charging document included a summary of a forensic analysis that found evidence of more than $3.7 million in overpayments from the subsidiary to Blanco’s company, bolstering allegations that Drummond had financed the paramilitaries.

Prosecutors also noted that numerous witnesses who did not receive security payments had testified to the same facts. The accounts of El Tigre and other disputed witnesses, they wrote, were “in harmony with and verified by other forms of proof.”

This fall, prosecutors named Drummond’s Colombian subsidiary as a “civilly responsible third party” in the case of the union leaders’ murders.

Though its Colombian subsidiary is now in the crosshairs of prosecutors, Drummond has had more success against Collingsworth in the United States.

In 2015, Drummond filed a civil RICO suit charging that Collingsworth had bribed El Tigre, Blanco, and other witnesses to falsely testify that Drummond was involved in the murders, as part of a racketeering conspiracy to strong-arm the coal producer into paying a hefty settlement. The company pointed to inconsistencies in their testimonies, noting previous statements in which they denied that Drummond had worked with the paramilitaries before they became witnesses for Collingsworth.

The case, which focused on the undisclosed payments to witnesses, was heard by a federal judge who had ruled in Drummond’s favor in earlier litigation with Collingsworth, Judge R. David Proctor of the Northern District of Alabama.

Collingsworth said in court filings that the omissions were an “inadvertent disclosure error” resulting from miscommunication with his co-counsel in Colombia. He said he had failed to include the payments in an initial disclosure and then recycled his answer repeatedly before realizing his error. He also apologized to the judge for making a “terrible mistake” in not revealing his arrangement with Blanco, which he had previously deemed to be outside the scope of required disclosures.

“Sitting here now, boy, I wish I had just disclosed it,” Collingsworth said in a phone interview. “Because it wasn’t hiding the truth or changing the testimony.”

The real question, Collingsworth said, is whether the payments to the witnesses in Colombia were ethical and necessary for their safety. The security arrangements were needed for them to testify truthfully without endangering their families, he said, noting that he reviewed all arrangements in advance with ethics lawyers and turned down witnesses who sought to exchange testimony for cash. He fiercely defends his decision to help relocate the families of former paramilitaries and submitted testimony supporting the need for security payments by expert witnesses including Javier Peña, the former Drug Enforcement Administration agent who led the mission that killed cartel leader Pablo Escobar and inspired the Netflix series “Narcos.”

“It was morally necessary to protect these families from one of the most brutal groups that roamed the earth,” Collingsworth said.

In December 2015, Proctor ruled that Drummond’s RICO case could go forward, finding that Collingsworth’s explanation for the undisclosed payments was “as weak as it is incredible.” He held that there was probable cause to believe that Collingsworth had bribed witnesses and suborned perjury, opening the door to the extensive discovery process that Chevron had effectively used against Donziger.

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It was the beginning of years of legal wrangling that Collingsworth said drained the resources of his small human rights firm.

Collingsworth said he has spent some 2,000 hours — what a lawyer usually bills in a year — defending against Drummond’s charges. Even more damaging, he said, has been the impact on his professional reputation, which he says has deprived him of business opportunities and revenue.

“I have had colleagues who are in law firms tell me that they can’t collaborate with me until these charges are completely resolved in my favor, because they don’t want to be accused of associating with someone who bribes witnesses,” Collingsworth said.

Steinhardt, the human rights law professor, said the facts of the case aren’t black and white, but the charges against Collingsworth are disproportionate. “He isn’t a racketeer,” Steinhardt said.

A protester holds a poster during a demonstration outside the Constitutional Court, called by the Union of Persons Affected by Texaco, to mark the 23 years of legal battle against the oil company, in Quito, Ecuador, Wednesday, Nov. 9, 2016.
A protester holds a poster outside the constitutional court in Quito, Ecuador, on Nov. 9, 2016, at a demonstration marking 23 of the legal battle over Texaco’s pollution.

Photo: Dolores Ochoa/AP

A Chilling Effect
The success of these cases paved the way for increasingly aggressive uses of civil RICO.

Around 2012, Greenpeace and other environmental groups launched a protest campaign against Resolute Forest Products, accusing the forestry company of destroying boreal forests in Canada. Several years later, Greenpeace and others began another campaign targeting Energy Transfer Partners (now part of Energy Transfer LP), the company behind the Dakota Access pipeline. This campaign charged, among other things, that the company was threatening Indigenous communities’ water supply and sacred sites. Greenpeace and its allies rallied their members, drove media coverage, and urged the companies’ business partners to sever ties unless the companies changed course.

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The two companies filed RICO charges against Greenpeace and the other groups in 2016 and 2017. Both were represented by the firm Kasowitz Benson Torres, whose founding partner Marc Kasowitz was a longtime personal attorney for Donald Trump and filed a defamation case against one of Trump’s critics. (First Look Institute, the nonprofit that publishes The Intercept, is involved in litigation with Energy Transfer, represented by the Kasowitz firm, over records related to the Dakota Access pipeline.)

Michael Bowe, the former Kasowitz partner who brought the RICO cases, told Bloomberg in August 2017 that he was in contact with other companies considering similar actions and “would be shocked if there are not many more.” He anticipates an increase in these actions, he wrote in response to questions from Type and The Intercept, because “the online nature of activism and speech generally makes it easier and more common to widely disseminate false claims and inflict great harm.”

“The claims against Greenpeace and others are … essentially saying, ‘Your activism is racketeering.’”
The cases against Greenpeace took the RICO strategy well beyond the arguments made by Chevron and Drummond. They argued that common advocacy techniques such as naming-and-shaming campaigns and fundraising amounted to RICO offenses if the campaigns included false allegations. Greenpeace’s campaign against Resolute included an inaccurate claim that Resolute had logged in protected forests, which Greenpeace later retracted, saying it had made a mistake. Resolute accused Greenpeace of intentionally fabricating the claim in order to extort the company, calling the organization a “global fraud” that existed to maximize donations rather than protect the environment.

“The claims against Donziger aren’t claims against environmentalism as it operates,” said Joshua Galperin, an environmental law professor at Pace Law School. “But the claims against Greenpeace and others are much more broad, essentially saying, ‘Your activism is racketeering.’”

Bowe disputed this characterization. “The case is not about activism, it is about lies,” he wrote. “Legitimate activism is truthful.”

Krystal Two Bulls, an organizer who participated in the Standing Rock protests against the Dakota Access pipeline, was added as a defendant in the racketeering suit brought by Energy Transfer in 2018, after a judge found that the initial complaint was too vague to support RICO claims. The company charged that Two Bulls, a media liaison for a group of protesters called Red Warrior Camp, had sought to “provide cover for their illegal activities” by issuing public calls to action on the group’s behalf. They accused Red Warrior Camp of being a “front for eco-terrorists” who engaged in violent attacks on construction sites. News reports state that while members of the camp occupied private land to block pipeline construction, police and security guards carried out much of the violence — using water hoses, rubber bullets, and tear gas against protesters.

Two Bulls, a U.S. Army veteran and a member of the Oglala Lakota and Northern Cheyenne, was shocked when she learned she had been charged with racketeering.

“I remember thinking, what am I supposed to do with this?” she said. “I have no lawyer. I have no money for a lawyer.”

“I started to censor myself.”
Two Bulls was represented pro bono by the nonprofit law firms Center for Constitutional Rights and EarthRights International. She considers herself lucky that colleagues in the environmental movement connected her with these lawyers but recalls a heavy weight on her shoulders while the charges were pending. She felt like her presence was a liability to her fellow activists.

“It made me second guess myself and the spaces I entered,” Two Bulls said. “I started to censor myself in the things I was saying.”

Laura Lee Prather, a partner at Haynes Boone who specializes in First Amendment law, said civil RICO claims often lead to extended litigation because they depend heavily on the facts of the case. Defamation charges can be thrown out if the defendant can affirmatively show their statements were true. By contrast, a civil RICO claim usually requires a more complex defense.

“Civil RICO is much more difficult to have a court feel comfortable dismissing at any early stage,” Prather said.

Federal judges in California and North Dakota dismissed the RICO claims in both cases almost a year and a half after they were filed. In the Resolute case, the judge ruled that the company failed to prove that Greenpeace’s fundraising claims had directly caused the alleged harm it suffered. He later ordered the company to pay more than $800,000 of Greenpeace’s legal costs.

Resolute noted that other charges it has brought against Greenpeace, alleging defamation and unfair competition, were allowed to proceed and are still before the courts. “The long-running dispute with activists has been about standing up for our communities to defend our sustainable practices against misrepresentation,” Resolute spokesperson Seth Kursman said in a statement.

In the case of Energy Transfer, the judge ruled that the company failed to prove that the various actors involved in the Standing Rock protests were a coordinated “RICO enterprise.”

“While there is a common purpose among defendants — they all oppose the Dakota Access Pipeline — there is no ongoing organization, no continuing unit, and no ascertainable structure apart from the alleged RICO violations,” U.S. District Judge Billy Roy Wilson wrote in February 2019. “That is far short of what is needed to establish a RICO enterprise.”

Energy Transfer did not respond to email or telephone inquiries. A week after its RICO charges were dismissed, the company filed charges in North Dakota state court, accusing Greenpeace, Two Bulls, and others of trespass, defamation, and civil conspiracy for their role in the Standing Rock protests. The litigation is ongoing.

Defiant Dakota Access Pipeline water protectors faced-off with various law enforcement agencies on the day the camp was slated to be raided, on Feb. 22, 2017, North Dakota.
Dakota Access pipeline protesters face off with various law enforcement agencies on Feb. 22, 2017, in North Dakota.

Photo: Michael Nigro/Pacific Press/LightRocket via Getty Images

Protecting the Protest
The RICO attacks on Greenpeace and its allies alarmed civil society organizations, which feared that the cases would deter advocacy groups from speaking out against big corporations. In 2018, a coalition of organizations founded Protect the Protest to combat lawsuits meant to silence free speech, which are known as strategic lawsuits against public participation, or SLAPPs. These lawsuits can include RICO claims but have also proliferated in other ways. Telltale signs of a SLAPP, according to the coalition, are claims that target activities protected by the First Amendment, seek to exploit a power imbalance, and threaten to bankrupt defendants.

“Civil society is not just going to lay down and take this,” said Marco Simons, the general counsel for EarthRights International and a member of the coalition.

Simons believes the coalition’s recent work calling attention to the Greenpeace lawsuits has, for the time being, discouraged companies from attempting more RICO suits that broadly target activism. But Protect the Protest is still seeking more permanent solutions.

The coalition aims to crack down on these suits by promoting anti-SLAPP laws, which provide fast-track procedures for dismissing SLAPPs and shifting their legal costs to the party that filed them. More than half of U.S. states have some version of an anti-SLAPP law.

Ken White, the former prosecutor, said that state anti-SLAPP laws have been highly effective, both in deterring abusive lawsuits and providing a defense mechanism for their targets. But RICO is a federal law.

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In September, Rep. Jamie Raskin, D-Md., introduced the SLAPP Protection Act of 2022, a federal bill that, like the state laws, would provide an expedited process for getting SLAPPs thrown out. Raskin singled out the fossil fuel industry for abusing the “legal system by deploying costly, protracted, and meritless lawsuits to target activists.”

A law providing a uniform standard for dismissing such lawsuits across federal courts would make it “much harder to abuse the system,” White said.

As advocates search for solutions, Drummond is pressing ahead with its RICO case against Collingsworth. The company subpoenaed VICE Media last year for raw audio recordings from a podcast about the union leaders’ murders. On March 7, Proctor, the judge, ruled in Drummond’s favor, ordering VICE to turn over recordings of its interviews with Collingsworth, Blanco, and another witness.

Collingsworth said that he doesn’t fear losing in court, but the looming racketeering charges have taken a toll psychologically.

“There is a question mark over my name.”
“It has caused me emotional turmoil because some people view me differently,” he said. “There is a question mark over my name.”

The coming months are expected to bring new developments in his legal battle with the coal company. Attorneys will take depositions from witnesses in Colombia for Drummond’s RICO suit and a more recent suit brought by Collingsworth. Meanwhile, Colombian prosecutors have resumed work in their case against the current and former presidents of Drummond’s Colombian subsidiary, seeking testimony from a former paramilitary leader in October. The defendants have appealed the decision to charge them with conspiring in Orcasita’s and Locarno’s murders, and the appeal must be decided before the case can go to trial, according to Ivan Otero, Collingsworth’s co-counsel in Colombia.

More than 21 years after her husband’s murder, Elisa Orcasita is still skeptical of Colombian justice but is hoping for a clean trial.

“We pray to God that there’s no more buying of anything, no more influence of anything,” she said. “That’s what we hope for as victims.”

This story was produced with support from the Fund for Constitutional Government and the H.D. Lloyd Fund for Investigative Journalism.





Crafty_Dog

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Re: Legal issues
« Reply #256 on: June 08, 2023, 04:23:08 AM »

Crafty_Dog

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How Appealing
« Reply #257 on: August 06, 2023, 02:57:41 PM »
This seems like a very good resource.  I will be checking it out.

https://howappealing.abovethelaw.com/

Body-by-Guinness

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The State’s Coercive Power
« Reply #258 on: October 19, 2023, 09:03:20 PM »
Well funded prosecutors in Democratic cities where juries are happy to convict political opponents for wrong think bode interesting times ahead:

https://x.com/molmccann/status/1715026027397648550?s=61&t=L5uifCqWy8R8rhj_J8HNJw

Crafty_Dog

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Re: Legal issues
« Reply #259 on: October 20, 2023, 06:07:46 AM »
I agree with the main point about the coercive power of prosecutions and the nature of some juries in some jurisdictions, but for me there came a point where Sidney Powell was spewing out some seriously specious claims to grift fund raising.  She did much damage to the cause of electoral integrity.

DougMacG

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Re: Legal issues
« Reply #260 on: October 20, 2023, 07:29:30 AM »
I agree with the main point about the coercive power of prosecutions and the nature of some juries in some jurisdictions, but for me there came a point where Sidney Powell was spewing out some seriously specious claims to grift fund raising.  She did much damage to the cause of electoral integrity.

Yes and also (if I have this right) there was one real incident of illegality in Georgia, breaking into a voting machine (with good intentions?) and according to the charges and plea she was involved with that.

ccp

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Re: Legal issues
« Reply #261 on: October 20, 2023, 11:20:10 AM »
Mike Lindell also in same boat

sounds like he is bankrupt.

won't miss his commercials but not the way I would have preferred to see then stop or at least become rare.

I am not sure what is going on with Rudi...........

but he sounds like he is losing a lot too.

Body-by-Guinness

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Chauvin Case to be Reviewed by SCOTUS
« Reply #262 on: October 28, 2023, 09:58:19 PM »
I think this case was a tremendous travesty—as I understand it Chauvin was following his training—so it’ll be interesting to see how this plays out.

https://www.dailywire.com/news/derek-chauvin-attorney-talks-u-s-supreme-court-appeal-every-juror-had-a-stake-in-outcome-of-trial?fbclid=IwAR1lLw3-DST7jbVTydsT2XwbvyD0sjthEOwYRdfroWFo0iyIUCwRYJbdq2s

Crafty_Dog

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Re: Legal issues
« Reply #263 on: October 29, 2023, 06:26:19 AM »
Those are sound points, but OTOH what we all saw on the tape was quite reprehensible.

DougMacG

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Re: Legal issues
« Reply #264 on: October 29, 2023, 08:10:05 AM »
Those are sound points, but OTOH what we all saw on the tape was quite reprehensible.

My brother had some connection to a person who participated the first autopsy.  I can't remember the details (jury didn't see that one) but it didn't show the 'right' cause of death so others kept at it until it did.

On the forum, G M showed us that hold was in the manual.  I hadn't seen that, never saw that pointed out anywhere else.  That doesn't mean he used the hold correctly.

There were other causes of death:

Multiple times the fatal dose of fentanyl

covid,

Pre-existing health issues (heart issues?)

In the film, the longer film, we see that the earlier officers were not able to handle him, other methods didn't work.  They deferred to a more senior officer when he arrived.  (Hard for a junior officer who failed to subdue him tell Chauven to lay off.)

Crafty pointed out at that time (my recollection), Chauvin didn't have to keep that hold all that time while he was down.  Very unlikely he could get back up.

I concluded the 'mistake' (criminal act?) (negligent act that led to the death?) was to hold him that way for that long.  SO the 'crime' occurred not in subduing him but a minute or some other time later when he didn't lay off.

Jury said "murder" so now it's murder.  But the jury did not hear/see everything, and they were under UNBELIEVABLE pressure to return that verdict, or be 'doxxed', lose their lives, their families and certainly restart the riots that burned the town.. 

As mentioned, everyone saw the video.  I know that at least locally, you weren't allowed to hold or express a different view.

Not relevant to the criminal trial:

George Floyd, prior to the hold and to his death, was no hero.  For one thing he had no problem holding a woman at gunpoint and threatening her with her life while her riches were stolen.

You aren't allowed to remain drunk (high in this case) in the driver's seat with the keys in the ignition on a city street.  Those cops would have ordered any one of out of that car and taken us in.

Heather MacDonald published a piece at the time that the whole premise of blacks and police is false.

This started because he was committing a crime and .

There never was anything in the incident or the case to do with race.

Glad I wasn't in the jury. 
--------------------------

In the aftermath, 1600 building were burned or vandalized in the Twin Cities alone, plus Portland, plus the occupation in Seattle, plus Denver, and so on. 

What did people think of the trial of the people who burned the Minneapolis Police 3rd Precinct building to the ground, and burned a federal building there (U.S. Post Office)?  Remember it's a federal crime to tamper with just an envelope in the mail?  Oh that's right, no one was ever charged.

ccp

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From American Thinker
« Reply #265 on: October 29, 2023, 08:22:52 AM »
https://www.americanthinker.com/blog/2023/10/fact_check_george_floyd_wasnt_murdered.html

I disagree with the conclusion of this article.
Clearly Floyd perished due to the positioning held for too long and too hard.
He was clearly saying he could not breath, witness pleaded with Chauvin to let up and even one of the police officers could be heard suggesting to turn him on his side.

Though there probably were contributing factors - health, drugs in system etc.

https://www.nbcnews.com/news/us-news/derek-chauvin-be-sentenced-murder-death-george-floyd-n1272332

I agree with Crafty - Floyd was clearly guilty of something though the charge perhaps could have been different. That I would leave to lawyers.








DougMacG

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Re: From American Thinker
« Reply #266 on: October 29, 2023, 09:05:20 AM »
"(Chauvin) was clearly guilty of something though the charge perhaps could have been different. That I would leave to lawyers."


Right.  I'm no expert but there is a big difference between causing another person's death through reckless behavior and  murder with intent.

Those lawyers we trusted it to, the lead was Keith Ellison.  He had no interest other than follow the facts and the law...   Oops.

The Supreme Court would be crazy to re-open this.

Crafty_Dog

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Re: Legal issues
« Reply #267 on: October 29, 2023, 09:56:22 AM »
"Crafty pointed out at that time (my recollection), Chauvin didn't have to keep that hold all that time while he was down.  Very unlikely he could get back up. I concluded the 'mistake' (criminal act?) (negligent act that led to the death?) was to hold him that way for that long.  SO the 'crime' occurred not in subduing him but a minute or some other time later when he didn't lay off."

Yes.



Crafty_Dog

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Re: Legal issues
« Reply #270 on: November 16, 2023, 06:55:44 PM »
Oy vey.


Crafty_Dog

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Re: Legal issues
« Reply #272 on: January 25, 2024, 04:56:16 AM »

Crafty_Dog

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WSJ: Should SCOTUS attend SOTU?
« Reply #273 on: March 11, 2024, 11:10:50 AM »


No More Justices at the State of the Union
John Harlan thought it unconstitutional for him to attend. Biden proved him right.
By Nathan Lewin
March 10, 2024 4:05 pm ET


I served as a law clerk for Justice John Marshall Harlan in 1961-62. John F. Kennedy was scheduled to deliver his first State of the Union address on Jan. 11, 1962. Harlan informed his clerks he wasn’t attending because he thought it violated the separation of powers for a Supreme Court justice to participate in a task that the Constitution assigned to the executive and legislative branches.

I had enormous respect for Justice Harlan but thought he was taking formalism too far. What was the harm if a justice appeared at this demonstration of national unity? Last week President Biden conclusively proved Harlan right by scolding and threatening the six sitting justices who chose to attend the event.

Article II of the Constitution enumerates the duties of the president. Section 3 begins: “He shall from time to time give to the Congress Information of the state of the union, and recommend to their consideration such measures as he shall judge necessary and expedient.”

The words “to the Congress” are extraneous if the purpose of this report is purely informational. Only if the provision contemplates collaboration between the president and lawmakers are these words meaningful. This reading deliberately excludes the judiciary from the process of delivering or receiving information on the State of the Union.

It would surely be improper for a justice to speak in support of or in opposition to proposed legislation at a session of the Senate or House. Nor would any justice attend a publicized meeting of the president and his cabinet to discuss national or foreign policy. Justices Felix Frankfurter and Abe Fortas took pains to keep secret any advice they privately gave to Presidents Franklin D. Roosevelt and Lyndon B. Johnson.

Justices Antonin Scalia, Clarence Thomas and Samuel Alito all stopped attending State of the Union addresses. This year Justice Amy Coney Barrett sat the event out. The six who attended (wearing their judicial robes) sat awkwardly with hands folded as Mr. Biden excoriated them for overturning Roe v. Wade and vowed to nullify the decision if voters choose his political party. In singularly demeaning style, the president taunted the court with hoist-on-your-own-petard language from Justice Alito’s majority opinion.

In 1962 Kennedy had the good sense and respect not to address legal controversies that were before the high court. The justices had heard oral argument in October 1961 on legislative reapportionment, and the Kennedy administration had taken a controversial position (which resulted in the landmark ruling of Baker v. Carr). Civil-rights sit-in cases were before the court, as were major antitrust and religious-liberty disputes. The Kennedy administration had legal positions on these issues, which it expressed in pleadings filed in court.

In 1962 it was beyond anyone’s imagination that the president would reprimand the court in a State of the Union address. Harlan chose to stay away anyway. All the court’s current members should follow his example.

Mr. Lewin is a Washington lawyer with a Supreme Court practice.

Body-by-Guinness

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250 Year Old Spanish Land Grant Used by Private Landowner …
« Reply #274 on: April 11, 2024, 06:44:55 PM »
… to defeat Mississippi’s claim of costal land ownership. Tickles my fancy that a citizen beat the state by reaching back so far into the historic record:

Private Landowner in Mississippi Beats State Based on Interpretation of "1784 Spanish Land Grant"

The Volokh Conspiracy / by Eugene Volokh / Apr 11, 2024 at 2:49 PM

From last week's Mississippi Supreme Court decision in State v. Aldrich (opinion by Justice David Ishee):

This case is a dispute over roughly one acre of Mississippi coastal land. In short, John Aldrich and the State disagree over whether the subject property is Aldrich's or State-owned tideland…. [T]he primary source of conflict is the map the secretary of state published in 1994 that demarcated the boundaries between private property and Public Trust Tidelands.

Via the map, the secretary designated the subject property as State-owned tideland. Aldrich disagreed with the designation however, leading him to challenge the relevant boundary in Harrison County Chancery Court in 1998. The State then filed a counterclaim, alleging it held fee simple title to the property.

Following more than two decades of inactivity and extended bursts of litigation to be detailed below, the chancellor eventually found in Aldrich's favor in 2022, vesting title in him and adjusting the tideland boundary. Throughout the proceedings, the chancellor made five consequential findings, all of which the State labels as error on appeal. Four of them present issues that can be routinely resolved. The outlier, however, poses a unique issue.

Specifically, the chancellor found that a 1784 Spanish land grant, which is the root of Aldrich's deraignment of title, negated the State's claim to fee simple title. This finding carries considerable weight, as it calls into question which lands passed from the federal government to Mississippi upon statehood. This case therefore requires careful historical analysis that balances the interests of private landowners with those of the State. Upon review, however, we find no error and affirm the chancery court's decision….

The 1783 Treaty of Paris, the 1795 Treaty of San Lorenzo, the 1800 Treaty of St. Ildefonso, and the 1803 Treaty of Paris also come up, as does "[t]he deposition of oyster shells and dredge spoils."

The post Private Landowner in Mississippi Beats State Based on Interpretation of "1784 Spanish Land Grant" appeared first on Reason.com.

https://reason.com/volokh/2024/04/11/private-landowner-in-mississippi-beats-state-based-on-interpretation-of-1784-spanish-land-grant/

Crafty_Dog

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Weinstein granted new trial
« Reply #275 on: April 25, 2024, 05:53:24 PM »
From nothing more than reading the article off the top of my head I would say this is correct.

https://twitchy.com/samj/2024/04/25/weinstein-rape-charges-overturned-n2395511

Body-by-Guinness

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Kudos for Cannon
« Reply #276 on: May 12, 2024, 03:44:55 PM »
Contrary to the MSM, she is the embodiment of the rule of law:

Judge Aileen Cannon is a Heroine
The Volokh Conspiracy / by Steven Calabresi / May 11, 2024 at 1:15 AM
[She is scheduled on June 21st to hear oral argument on whether special counsel Jack Smith was unconstitutionally appointed]

The liberal news media is full of false stories about how Judge Aileen Cannon of the United States District Court for the Southern District of Florida has delayed former President Donald Trump's trial unnecessarily for allegedly mishandling classified documents. But, in fact, the Biden Administration and its Attorney General, Merrick Garland, are themselves to blame for the current delay. Special Counsel Jack Smith claims to be an inferior officer of the United States, but in fact he holds no such office. Smith is a mere employee of the Department of Justice, and he lacks the power to initiate prosecutions. Lucia v. Securities and Exchange Commission, 585 U.S. __ (2018) holds that only officers of the United States can take actions that affect the life, liberty, and property of citizens.

Judge Cannon has asked for oral argument on June 21, 2024 on former President Donald Trump's motion to dismiss Special Counsel Jack Smith's indictment on the ground that Smith was unconstitutionally appointed to his current job because he is not an inferior officer. Washington, D.C. super-lawyer, Gene Schaerr, has filed an amicus brief in United States v. Trump on behalf of former Attorney Generals Edwin Meese III and Michael B. Mukasey, as well as me and Professor Gary Lawson, arguing that Jack Smith was unconstitutionally appointed to be an inferior officer, and Judge Cannon has asked Gene Schaerr to participate in the oral argument, which he has agreed to do.

The Appointment Clause of Article II, Section 2 provides that: "the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments." Jack Smith claims to be an inferior officer of the United States appointed by the Head of the Justice Department, but he is instead a mere employee.

We argue in our amicus brief that Congress has never by law vested in the Attorney General as the Head of a Department the power to appoint inferior officers even though Congress has explicitly vested that power in the Heads of the Departments of Energy, Health and Human Services, Transportation, and Agriculture. The only power, which Congress has given to the Attorney General is the power to make a sitting U.S. Attorney a Special Counsel with jurisdiction to prosecute cases nationwide and outside his or her home district. Thus, the Delaware U.S. Attorney, David C. Weiss, currently has nationwide jurisdiction to investigate and prosecute Hunter Biden as a Special Counsel, and this appointment is completely constitutional. Similarly, former U.S. Attorney for the Northern District of Illinois, Patrick Fitzgerald, was quite legitimately given nationwide jurisdiction to prosecute former Vice President Dick Cheney's Chief of Staff, Scooter Libby, in Washington, D.C. Fitzgerald got Libby convicted and sentenced to time in jail.

Jack Smith, however, was a private citizen, and not a sitting U.S. Attorney, when Attorney General Merrick Garland named him to be the Special Counsel who would investigate and prosecute Donald Trump. Smith's appointment as an inferior officer was thus unconstitutional, and therefore the cases against former President Donald Trump, which Smith is prosecuting in Florida and in Washington D.C. must be dismissed. Again, Congress has never by law vested in the Attorney General the power to appoint inferior officers

The 92 U.S. Attorneys are all superior officers who must be nominated by the President and confirmed by the Senate. This requirement of Senate confirmation of U.S. Attorneys has been a part of our law since the Judiciary Act of 1789—i.e. for 235 years. It is, to say the least, implausible that Congress would require Senate confirmation of the U.S. Attorney for Wyoming but not of a Special Counsel who is prosecuting a former and possibly future President in both Florida and Washington, D.C.

Senators have deliberately decided not to give Attorneys General the power to appoint inferior officers with power to initiate a prosecution because they want to have a say in the confirmation process over who can prosecute cases in their home states. If the Attorney General has the power to appoint prosecutors without Senate confirmation think of what he might do with that power in corrupt places like Cook Country, Illinois or New Orleans, Louisiana. No wonder the Senate grants to the Heads of four other Cabinet Departments the power to appoint inferior officers while denying that power to the Attorney General.

Former Attorney General Robert Jackson said in a December 1, 1940 speech at the Conference of U.S. Attorneys that:

"It would probably be within the range of that exaggeration permitted in Washington to say that assembled in this room is one of the most powerful peace-time forces known to our country. The prosecutor has more control over life, liberty, and reputation than any other person in America. His discretion is tremendous. He can have citizens investigated and, if he is that kind of person, he can have this done to the tune of public statements and veiled or unveiled intimations. Or the prosecutor may choose a more subtle course and simply have a citizen's friends interviewed. The prosecutor can order arrests, present cases to the grand jury in secret session, and on the basis of his one-sided presentation of the facts, can cause the citizen to be indicted and held for trial. He may dismiss the case before trial, in which case the defense never has a chance to be heard. Or he may go on with a public trial. If he obtains a conviction, the prosecutor can still make recommendations as to sentence, as to whether the prisoner should get probation or a suspended sentence, and after he is put away, as to whether he is a fit subject for parole. While the prosecutor at his best is one of the most beneficent forces in our society, when he acts from malice or other base motives, he is one of the worst. ***

Because of this immense power to strike at citizens, not with mere individual strength, but with all the force of government itself, the post of federal district attorney from the very beginning has been safeguarded by presidential appointment, requiring confirmation of the senate of the United States. You are thus required to win an expression of confidence in your character by both the legislative and the executive branches of the government before assuming the responsibilities of a federal prosecutor."

Thank God Judge Cannon has scheduled oral argument on President Trump's motion to dismiss Jack Smith's prosecution of Trump for misuse of classified documents by a Justice Department employee who has not been nominated by the President and confirmed by the Senate. The judge should dismiss Smith's case, and the Eleventh Circuit, and the U.S. Supreme Court should affirm that dismissal.

If, at that point, Attorney General Garland still wants Trump's alleged misuse of classified documents investigated, as did not happen with former Obama Secretary of State, Hillary Clinton, then Attorney General Garland should follow the law and ask one of the 92 sitting, Senate-confirmed U.S. Attorneys to conduct any investigation that occurs. Attorney General Garland's failure to follow the law and the Constitution is a national disgrace. Judge Cannon should get a national round of applause.

The post Judge Aileen Cannon is a Heroine appeared first on Reason.com.

https://reason.com/volokh/2024/05/11/judge-aileen-cannon-is-a-heroine/

Body-by-Guinness

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VDH Catalogs Trump’s Persecutions
« Reply #277 on: May 13, 2024, 02:19:12 PM »
A fine compendium if nothing else:

Presidential Persecutions

What will be the endgame of all these attacks on the American legal system and the warping of it for blatant political purposes?

By Victor Davis Hanson

May 13, 2024
None of the five civil and criminal cases currently lodged against former President Donald Trump have ever had merit. They were all predicated on using the law to injure his re-election candidacy—given a widespread derangement syndrome among the left and a fear they cannot entrust a Trump/Biden election to the people.

These criminal and civil trials are merely the continuation of extra-legal efforts of the last eight years to destroy a presidential candidate in lieu of opposing him in transparent elections.

As such, the current lawfare joins the Mueller investigation of the Russian-collusion hoax. It is a continuation of the laptop disinformation caper and the “51 intelligence authorities” who lied about its Russian origins. It logically follows from the two impeachments, the Senate trial of Trump as a private citizen, and states’ efforts to remove him from their ballots.

The E. Jean Carroll case, the Alvin Bragg, Letitia James, and Fani Willis local and state trials, and the Smith federal indictment share various embarrassments.

Suspension of statutes of limitations: Carroll and Bragg could only go to court through the legal gymnastics of enlisting sympathetic judges and legislators to change or amend the law to suspend the statute of limitations as a veritable bill of attainder to go after Trump.

Violations of the Bill of Rights: In the Bragg case, Judge Merchan’s selective and asymmetrical gag order likely violates the First Amendment (prohibiting “abridging the freedom of speech”). Bragg violated the Sixth Amendment by denying Trump the right “to be informed of the nature and cause of the accusation”. Judge Engoron, in the juryless James case, violated the Eighth Amendment (“nor excessive fines imposed”) in assessing Donald Trump an unheard of $354 million fine for supposedly overstating the value of real estate collateral for loans, while violating the Sixth Amendment as well (“the accused shall enjoy the right … to trial by an impartial jury”). The FBI likely violated the Fourth Amendment (“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures”) by raiding Trump’s private residence, seizing his papers and effects (many of them private), and then lying about its own shenanigans of rearranging the seized classified files to incriminate Trump.

The invention of crimes: The indictments of Bragg, James, Willis, and Smith had no prior precedents. These cases will likely never be seen again. Bragg bootstrapped a federal campaign violation allegation onto a state crime. Yet still, he has never explained exactly how Trump violated any particular law.

No one had ever been tried in New York for allegedly inflating real estate assets to obtain a loan from banks, whose auditors had reviewed favorably the applicant’s assets. Thus, the lending agencies issued the loans, profited from the interest, were paid back in full and on time, and had no complaint against the borrower, Trump. Nonetheless, James indicted Trump and convicted him of a non-crime without a victim, due the New York combination of a politicized left-wing Manhattan judge, prosecutor, and juror.

No local prosecutor until Willis had ever indicted a presidential candidate for calling up a registrar and complaining about the balloting or alleging that some votes cast were not yet counted, followed up by an additional request to find supposedly missing ballots. If such criminalization was the norm, a local Florida prosecutor in 2000 could have indicted both the Bush and Gore campaigns.

Prior to Smith’s federal indictment, all disagreements with presidents about the classification and removal of their private papers were handled administratively, not criminally, much less inaugurated by a staged, performance-art FBI swat-like raid on an ex-president’s residence.

Equal justice?: These indictments are asymmetrical, hounding Trump when other prominent left-wing politicians have been far greater violators of the same alleged crimes and yet were given exemptions. Special prosecutor Robert Hur found Biden culpable for removing classified files for far longer, in more places, in less secure circumstances, and without the presidential authority to declassify them. Yet Biden was not indicted on the Orwellian excuse that he, as president, was so mentally challenged no jury would convict such an amnesiac and debilitated defendant (who otherwise apparently can exercise the office of President of the United States.)

Tara Reade was as believable or unbelievable as E. Jean Carroll. Far poorer, and without Carroll’s New York elite connections, Reade alleged that Senator Joe Biden sexually assaulted her at about the same time as the Carroll claim. Yet Reade was written off as a nut, ostracized, and felt to have opportunistically piggy-banked on the #MeToo movement.

James and her predecessors were aware of hundreds of New York City developers who submitted loan applications with property assessment at odds with those of initial bank appraisals. She knows the solution is that either the bank’s sophisticated auditors refuse the loan or the disagreement is deemed not sufficient enough to sacrifice profit-making by offering a loan that will likely be timely paid back.

Willis knows that Stacey Abrams, in her own state, claimed herself the winner of the 2018 gubernatorial race (she lost by over 50,000 votes). Abrams then declared that the actual winner, current governor Brian Kemp, was and is an illegitimate governor. She further sued to overturn the election in the manner that Jill Stein had tried to overthrow the 2016 presidential election.

In a similar fashion of election denialism, Democratically-funded ad campaigns and sycophantic celebrities hit the airways in 2016 to flip the electors to become “faithless,” thus renouncing their constitutional duties to reflect their own states’ tallies and instead voting according to the national popular vote.

Bragg knows that Hillary Clinton was fined over $100,000 for 2016 campaign violations after she hid the nature of her illegal payments to foreign national Christopher Steele to collect dirt on her opponent Donald Trump. Barack Obama was fined—five years post facto!—by the same Federal Election Commission a whopping $375,000 for improperly reporting nearly $2 million in 2008 campaign donations. In neither case did a federal prosecutor, much less a local district attorney, seek to criminalize what was customarily considered an administrative or civil violation of federal law.

Bias: Never has an ex-president and leading presidential candidate been targeted with promises of indictment by candidates running for state and local offices. Yet that is precisely what Bragg, James, and Willis have done, fueling their campaigns for offices by promising to find ways to go after Donald Trump and subsequently raising money from such boasts.

Willis’s paramour, fellow prosecutor Nathan Wade, met with the White House counsel’s office. One of Bragg’s prosecutors, Matthew Colangelo, left his prestigious job as a senior federal prosecutor in the Biden DOJ temporarily to work on contract with Bragg’s Manhattan office to go after Trump.

Jack Smith was appointed by the Biden Department of Justice; his left-wing filmmaker spouse helped to produce a puff-piece documentary on Michelle Obama.

The judge in the Bragg case, Juan Merchan, donated to the 2020 Biden campaign. So did one of the lead prosecutors, Susan Hoffinger, who gave generously to Biden in 2020. Merchan’s own daughter, Loren, has made a small fortune as a Democratic campaign consultant, having guided her left-wing clients’ fundraising efforts to the tune of $90 million.

Given these egregious violations of the law, abject political bias, conflicts of interest, asymmetrical application of the law, and manipulations of the statutes of limitations, the public has slowly grown incensed. They rightly conclude that the lawfare is a left-wing coordinated effort to destroy candidate Trump by exhausting him physically and psychologically in five separate cases at the height of the campaign season, bankrupting him with what will likely be $1 billion in legal fees and fines, silencing him with gag orders, defaming him with salacious and sensational but irrelevant court testimonies, and keeping him off the campaign trail.

And now? The sheer preposterousness has resulted in two unexpected developments. One, the more the left tries to subvert the legal system to emasculate Trump, the more the latter wins popularity, especially in traditionally non-Republican constituencies, even as Biden slumps in the polls. And two, the four criminal cases are starting to fall apart because of their sheer ridiculousness and abject bias.

Will and her boyfriend, prosecutor Wade, likely lied under oath about both their covert romantic relationship and the money that fueled their global junketeering. A Georgia state appellate court is reviewing Willis’ suitability to continue the prosecution. One might ask, “How can a prosecutor who lied under oath while trying a case retain any credibility?” Whatever the state court’s findings, a state appellate or federal court will eventually exonerate Trump. No other prosecutor or jurisdiction would likely take over Willis’s tainted indictment.

Smith’s indictment is in limbo, largely because: 1) in unusual and partisan fashion, he sought to rush the prosecution to coincide with the 2024 campaign; 2) the Supreme Court is determining to what extent a president either has immunity or can be hauled into court by a special prosecutor appointed by the opposition party; and 3) his office lied to the court about the condition of the Trump files they found at his residence, collected, and then took possession of—in a fashion that was intended to prejudice the case in the government’s favor.

Bragg’s gambit of putting Stormy Daniels on the stand to offer irrelevant but lurid testimony to hurt candidate Trump may have backfired, given she proved unstable, narcissistic, unreliable, hateful, and promised to break the law and refuse a legally ordered payment to Trump after losing a defamation case against him. Convicted felon and liar Michael Cohen, the prosecution’s key witness, has already hit the internet trying to get rich and will have less credibility.

James’s civil conviction of Trump and massive fine (originally $450 million with interest) may also be overturned on appeal, given it violates Eight-Amendment protection from “unusual punishment” (“bail shall not be required, nor excessive fines imposed”), in addition to the selective prosecution of Trump where there is no criminal act and no victim.

So what will be the endgame of all these attacks on the American legal system and the warping of it for blatant political purposes?

One, we have entered new territory. There will soon be hundreds of local and state prosecutors who feel they have now been given license in election years to go after national presidential candidates for political advantage, both local and national.

Two, conservatives are in a dilemma: whether to restore deterrence by boomeranging the left’s extra-legal effort to ruin a candidate and president or to refrain from what would be a descent into third-world, tit-for-tat criminalization of politics.

Three, the persecution of Trump, coupled with the derelict candidacy of Joe Biden, threatens to erode the traditional base of the Democratic Party and redefine politics in terms of class rather than race. Minorities are beginning to empathize with the gagged, railroaded, and victimized Trump while distancing themselves from the victimizers, who are using their “privilege” to warp the law on behalf of a bullying president.

Four, the U.S. has lost a great deal of credibility abroad due to the erosion of what was once seen as the greatest system of jurisprudence in the world. No longer.

Enemies like China and Russia now boast that America’s new political prosecutions are similar to their own systems, or even more egregious, and will welcome us into their own customs of bastardized justice.

Latin-American, African, and Asian dictators are delighted that the U.S. has lost the moral authority to lecture them on the need for a disinterested and independent judiciary and the rule of law.

Our democratic allies in Europe and Asia are increasingly disturbed that the instability and unlawfulness apparent in the current lawfare put into question the reliability of the United States and its adherence to a rules-based order—whether at home or aboard.

Any president who would sic the justice system on his opponent might be equally vindictive and lawless to his allies abroad.

https://amgreatness.com/2024/05/13/the-fall-of-the-house-of-presidential-persecutions/

Body-by-Guinness

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Can Protest Organizers Lose Their Non-Profit Status?
« Reply #278 on: May 14, 2024, 12:27:23 PM »
No doubt those committing illegal acts will be pursued by the current admin with extreme prejudice, just like they it does with illegal immigrants….

Can Nonprofits That Help Organize Protests Lose Their Tax Exemptions?

The Volokh Conspiracy / by Eugene Volokh / May 14, 2024 at 2:24 PM

[Not because of the viewpoints they express—but yes if they engage in systematic illegal conduct.]

Senate Republicans have called on the IRS to investigate various nonprofits that have helped organize university protests, and see if they should be stripped of their tax exemptions. Would that be permissible?

[1.] The government can't strip groups of nonprofit status based on their ideological viewpoints. This was first made clear in Justice Brennan's opinion in Speiser v. Randall (1958), which struck down a denial of a property tax exemption to people and organizations that "advocate[] the overthrow of the Government of the United States … by … violence … or who advocate[] the support of a foreign government against the United States in the event of hostilities":

[A] discriminatory denial of a tax exemption for engaging in speech is a limitation on free speech. It is settled that speech can be effectively limited by the exercise of the taxing power. To deny an exemption to claimants who engage in certain forms of speech is in effect to penalize them for such speech. Its deterrent effect is the same as if the State were to fine them for this speech…. [T]he denial of a tax exemption for engaging in certain speech necessarily will have the effect of coercing the claimants to refrain from the proscribed speech. The denial is "frankly aimed at the suppression of dangerous ideas."

The Supreme Court reaffirmed this in Regan v. Taxation with Representation of Wash. (1983) and Rosenberger v. Rector (1995): Though "the Government is not required to subsidize" speakers, once it chooses to provide such a subsidy—including through "tax deductions for contributions"—it must abide by "the requirement of viewpoint neutrality in the Government's provision of financial benefits."

And the U.S. Court of Appeals for the D.C. Circuit has specifically applied this (in Z Street v. Koskinen (D.C. Cir. 2015)) to denials of a 501(c)(3) tax exemption, holding that "in administering the tax code, the IRS may not discriminate on the basis of viewpoint"—there, as it happens, against pro-Israel speech that departed from the Administration's foreign policy. There have been some viewpoint-based denials in the past (see Dale Carpenter's post for some examples), but these precedents pretty categorical forbid such denials.

[2.] But nonprofits' right to express viewpoints doesn't extend to a right to violate valid laws (such as content-neutral time, place, and manner restrictions). IRS Revenue Ruling 75-384 deals specifically with that:

Advice has been requested whether a nonprofit organization formed to promote world peace and disarmament by nonviolent direct action including acts of civil disobedience qualifies for exemption from Federal income tax under section 501(c)(3) or 501(c)(4) of the Internal Revenue Code of 1954.

The purposes of the organization are to educate and inform the public on the principles of pacificism and nonviolent action including civil disobedience. Its primary activity is the sponsoring of protest demonstrations and nonviolent action projects in opposition to war and preparations for war.

Protest demonstrations are conducted at military establishments, Federal agencies, and industrial companies involved with military and defense operations. Other activities consist of peace marches and protests against the use of tax monies for war purposes. The protest demonstrations constitute the primary activity of the organization. They are designed to draw public attention to the views of the organization and to exert pressure on governmental authorities. To derive the maximum publicity of an event, demonstrators are urged to commit acts of civil disobedience. Participants deliberately block vehicular or pedestrian traffic, disrupt the work of government, and prevent the movement of supplies. These activities are violations of local ordinances and breaches of public order. Incidental to demonstrations, leaflets are dispersed presenting the views of the organization….

[A]ll charitable trusts (and by implication all charitable organizations, regardless of their form) are subject to the requirement that their purposes may not be illegal or contrary to public policy. In this case the organization induces or encourages the commission of criminal acts by planning and sponsoring such events. The intentional nature of this encouragement precludes the possibility that the organization might unfairly fail to qualify for exemption due to an isolated or inadvertent violation of a regulatory statute. Its activities demonstrate an illegal purpose which is inconsistent with charitable ends….

Illegal activities, which violate the minimum standards of acceptable conduct necessary to the preservation of an orderly society, are contrary to the common good and the general welfare of the people in a community and thus are not permissible means of promoting the social welfare for purposes of section 501(c)(4) of the Code. Accordingly, the organization in this case is not operated exclusively for the promotion of social welfare and does not qualify for exemption from Federal income tax under section 501(c)(4).

For a recent application of this principle, see In re Kahea (Haw. 2021), which generally endorsed (in a somewhat different context) the reasoning of Rev. Rul. 75-384, while upholding the Hawaii Attorney General's investigation into whether an advocacy group violated the law:

In July 2019, construction of an astronomical observatory (the Thirty Meter Telescope or TMT) near the Mauna Kea summit loomed. That month, law enforcement officers arrested over thirty protesters on Mauna Kea's slopes. Hoping to thwart the Thirty Meter Telescope's construction, the protesters had blocked the road leading to the TMT's planned site. Later, the State charged these protesters with obstructing a highway or public passage.

The arrests and charges followed a lengthy legal and political battle over Mauna Kea's future. KAHEA: The Hawaiian Environmental Alliance, is an outspoken anti-TMT partisan in that scrap. One way KAHEA opposed development on Mauna Kea was through its Aloha `Āina Support Fund. According to KAHEA's website, the Aloha `Āina Support Fund "prioritizes frontline logistical support for non-violent direct actions taken to protect Mauna Kea from further industrial development." …

The State AG's investigation is premised on the notion that KAHEA's financial support for direct action opposing development on Mauna Kea may disqualify it from 501(c)(3) status. Nothing about this premise contradicts or runs counter to First Amendment principles….

Though Revenue Ruling 75-384 is more than forty years old, the IRS continues to rely on it in private letter rulings. For example, in 2019, the IRS cited Revenue Ruling 75-384 in a private letter ruling concerning an organization formed to aid financially disadvantaged patients affected by the costs of THC and CBD (cannabidiol) treatment. The organization assisted these patients "by providing financial support to cover costs of living and other expenses…." The IRS concluded that because cannabis was illegal under federal law, and because the organization was formed to provide financial assistance to cannabis users, the organization had an "illegal purpose" and could not be recognized as exempt under Section 501(c)(3) of the Internal Revenue Code.

Nothing in Rev. Rul. 75-384, of course, suggested there was anything wrong with advocating for world peace and disarmament as such. But trying to serve any cause, good or bad, through deliberately violating the law—including by "deliberately block[ing] vehicular or pedestrian traffic" and thus "disrupt[ing] the work of government, and prevent[ing] the movement of supplies"—can justify denying a tax exemption.

Indeed, such denial of tax exemptions can extend even to groups that operate merely "contrary to public policy," which includes engaging in race discrimination in education (Bob Jones Univ. v. U.S. (1983)). And that principle is at least equally true as to groups that systematically engage in violating criminal laws; here's the Court's reasoning in Bob Jones, which treats them in parallely:

A corollary to the public benefit principle is the requirement, long recognized in the law of trusts, that the purpose of a charitable trust may not be illegal or violate established public policy. In 1861, this Court stated that a public charitable use must be "consistent with local laws and public policy." Modern commentators and courts have echoed that view.

[3.] Again, speech remains protected regardless of its viewpoint. That would include speech that is viewed as disparaging based on race (see Matal v. Tam (2017), affirming In re Tam (Fed. Cir. 2015) ("Bob Jones University is a case about racially discriminatory conduct, not speech")); advocacy of "the overthrow of the Government of the United States … by … violence … or who advocate[] the support of a foreign government against the United States in the event of hostilities" (see Speiser); advocacy of terrorist attacks by Hamas; and more. But pervasive illegal conduct planned by the group can lead not just to criminal punishment for members of the group, but to the loss of tax exemption for the group itself.

The post Can Nonprofits That Help Organize Protests Lose Their Tax Exemptions? appeared first on Reason.com.

https://reason.com/volokh/2024/05/14/can-nonprofits-that-help-organize-protests-lose-their-tax-exemptions/