King Sadim–Never Trust a Con Man

ComeyI’d like to imagine that freshly-fired FBI Director James Comey–being a career prosecutor (including prosecuting the Gambino crime family)–was able to see through President Trump’s shtick when they met shortly after inauguration day. Surely, he saw his eventual ouster coming, and, surely, he prepared for it. When Trump kissed him on the cheek, he must have known it was the kiss of death, and that his still-short tenure as Director of the FBI was borrowed time. Barrels of ink have been poured over the years detailing how President Trump’s word is nearly worthless, how his debts are rarely paid, and how nearly everything he touches and everyone he meets are damaged by the encounter.

Very Little Precedent

That’s what I have to tell myself, at least, because Comey’s unprecedented ouster yesterday afternoon was shocking. FBI Directors, for those who don’t know, get 10-year terms of office on the theory that they are able to operate above the political fray. Granted with exceptional autonomy, the FBI theoretically operates largely independently from the Department of Justice, which in turn theoretically operates largely independently from the White House.

While Comey is not the first Director to be canned by a President–President Clinton had to fire William Sessions due to a ton of abuses within the FBI–he is certainly the first to be discharged while overseeing an investigation into potential collusion between the Trump presidential campaign and the Russian Government.

That Comey was fired during an active investigation obviously leads to comparisons with Richard Nixon, who fired Archibald Cox, the lead investigator on the Watergate scandal.  And that Comey’s firing occurred on the same date in history that impeachment proceedings were opened against Nixon is just a little extra frisson of intrigue.

A Complicated Director

This is not to suggest that Comey’s departure should necessarily be mourned.  Like many attorneys, he has had to espouse positions that he might not necessarily personally agree with. In other words, while he reportedly refused–as acting Attorney General–to certify the legality of certain aspects of the NSA’s domestic spying programs in 2004, he also–as Deputy Attorney General–endorsed a memorandum certifying “enhanced interrogation techniques” including waterboarding in 2005. (He subsequently stated that he personally felt that waterboarding is torture, but that the Geneva Conventions are vague on the issue.)

More recently, and more notoriously, he inserted himself into the 2016 Presidential Campaign by first, in July of 2016, holding a press conference to state that Hillary Clinton would not be prosecuted about, as Bernie Sanders would put it, her damned emails. But, on October 28, 2016, 10 days prior to the election, he sent a letter–which he knew would be leaked to the press–saying that the investigation was reopening. Just a little. That was followed by a letter two days before the election that said, essentially, “whoops, nothing to see here.”

Even more recently, in very strange testimony to Congress on May 3, 2017, Comey tried to explain his rationale for the October 28, 2017 letter. He claimed that investigators had discovered hundreds and thousands of previously unseen emails, and that he, “Lordy,” had a dilemma. He felt that he either needed to “speak” or “conceal”; there were no other options, in his opinion.  (“Conceal,” for what it’s worth, is a terrible word to use by an FBI Director when discussing investigations…)  This testimony, however, was…inaccurate, and the FBI has since submitted a follow-up letter to Congress stating that there might have been 2 to 12 email chains which provoked curiosity.

Comey
Letter about Comey’s testimony from the FBI to Congress, May 9, 2017. Retrieved from ProPublica.org.

Comey’s behavior during the 2016 campaign led both parties to alternately praise and condemn him. Trump, especially, while stoking his crowds with chants of “lock her up,” called Comey a hero when the October 28 letter was sent to Congress.  Despite rumors that Trump might get rid of Comey for failing to recommend prosecution against Clinton, Comey survived the transition.

Canned Comey

Amidst all this, however, was a much larger problem. Russia, according to multiple intelligence agencies, heavily interfered in the 2016 election through troll armies on Twitter and Facebook, generation of fake news, and potentially even more.  A number of Trump administration officials have had to resign or recuse themselves for various contacts and omissions about their contacts with Russia.

The investigation into this activity was occurring at the same time the FBI was investigating Clinton’s emails, and the lack of a public statement from Comey is part of why disheartened Democrats are none too pleased with him. By the same token, though, it appears the investigation has heated up dramatically, and CNN reported last night what less-established sources have been saying for weeks: that grand jury subpoenas have been issued out of the Eastern District of Virginia.

The timing of Comey’s firing, then, looks highly suspect. Not to mention the memorandum prepared by freshly-installed Deputy Attorney General Rod Rosenstein focused on Comey’s handling of Clinton’s emails in July and October, and not for anything more recent which would justify the need for an immediate termination. At the very least, one would think that the Department of Justice could have taken Comey to task for providing “inaccurate” testimony to Congress.  After all, it’s a federal crime for a person to make materially false statements to Congress in an investigation (18 U.S.C. § 1001).

The stated rationale, however? Looks, feels, and sounds bogus, especially when Comey joins Sally Yates and Preet Bharara as high-ranking officials who have been terminated. Their common denominator? They were investigating Trump campaign ties to Russia.

King Sadim, the Anti-Midas

I’ve no expectation at all that Trump is concerned in the slightest about how his actions appear. After all, he routinely and repeatedly breaches long-established norms. His behavior can appear erratic, and he blithely ignores (or pretends to ignore) reality. (One of these days, I will compile a rolling list of the crazy stuff his Administration is responsible for.) But surely, Comey had to be aware of the President’s reputation, and planned accordingly. Surely he knew he was on borrowed time, and made sure his investigation was in appropriate hands.

If not, then we are all the worse for it.

Investor Visas for Sale, $500,000 a Pop

Over the weekend, the Kushner family (yes, the family members of Presidential senior adviser Jared Kushner) got caught in China trying to sell investor visas to wealthy Chinese.

Well, let me rephrase that.

The Kushner family presentation in Beijing promoted the opportunity for these wealthy individuals to invest $500,000.00 in a Kushner family real estate development in New Jersey, and by doing so, they would be eligible to qualify for an EB-5 visa.  The fact that the Kushner family mentioned Jared Kushner, and that he currently works for the President (insinuating that some strings could be pulled), is being explained as a regretful oversight. Understandably, a lot of people think this might be problematic.

EB-5 Investor Visas

The EB-5 Program was created, according to USCIS, in 1990 to stimulate growth in the American economy. To qualify for such a investor visas, the applicant must invest a certain amount of capital into a new commercial enterprise and that investment must include a plan to create or preserve 10 full-time jobs for U.S. workers.  Generally, a minimum of $1,000,000.00 is required, unless the investment will be in a rural or a high-unemployment (150% of the national average) area. USCIS’s guidance on the program clearly promotes Chinese investment. For example, there is a prominent link to a Simplified Chinese version of the filing tips, while other languages are hidden.

Investor Visas
EB-5 Filing Tips, promulgated by USCIS.

And that’s all well and good. Investment is generally good for the economy, and people need jobs.

Cash for Access

The unseemly side of the Kushner family’s presentation, though, is the insinuation that the investment in the Kushner family’s development will automatically result in the receipt of EB-5 investor visas.  And that begins to look and feel a lot like bribery.

Bribery is generally criminalized by 18 U.S.C. § 201. There are a lot of ways to commit bribery under this statute, and there are a lot of people covered by it. For example, bribery–in simplified terms–is:

  • directly or indirectly giving anything of value to a public official, with intent to influence any official act.
  • being a public official, and directly or indirectly demanding anything of value in return for any official act.

A “public official” is, inter alia, an officer or employee or person acting for on behalf of the United States or any branch of United States government.

And there are a couple of ways this Kushner family scheme smells.

In the barest of senses, if the investors were paying Jared Kushner directly, expecting him to pull the right strings to get them their investor visas, that would, at the very least, constitute bribery by the Chinese investors. Likewise, if Jared Kushner were demanding the investors pay him the $500,000.00 to get him to pull the strings, that would also constitute bribery.

Investor Visa
Textbook Bribery

Is One Step Removed Enough?

Taking the Kushners at their word, that Jared Kushner divested himself from the real estate project completely (a suspect proposition, but let’s run with it), there would be one additional layer that could theoretically pull this deal out of the realm of bribery. That’s because Jared Kushner would not be part of the transaction.  He’d be in the background, a conveniently name-dropped individual, but nothing more.

Investor Visas
Is this bribery or not?

These examples are obviously simplified, because Jared Kushner, as adviser to the President, is not the person in charge of issuing investor visas.  Nonetheless, it creates an unseemly situation, that is compounded all the time by the Presidents words and actions, and by the President’s family’s words and actions.  The erosion of heretofore traditional rules and norms that prevented such appearances of impropriety–“erosion” isn’t even a strong enough word because it connotes degradation over a long period of time, and the disregard of appearances has been stunningly swift–threatens to overwhelm the public’s ability to prevent such destruction.

At the end of the day, it’s a tempest in a teapot.  Like most things of questionable ethics and legality the Administration has done since taking office, it is unlikely anything will come of this investor visa scandal other than some blog posts and news articles. Time will tell, however.

There Are No Small Roles

It has become axiomatic that the Democrats–despite winning the popular vote for President in every general election since 1992 (except 2004)–are faring poorly in State and local elections.  Statistics tend to bear this out, with most governorships and state legislatures across the country being controlled by Republicans.

Texas is Red

Texas, for example, is considered a deeply red State.  Our Senators are the lamentable Ted Cruz and John Cornyn. Queries to either either Senator for progressive causes are responded to with what amounts to an “aw, isn’t that cute” hair tousle and a “now, run along, bless your heart.”  Our Congressional Districts are gerrymandered to unacceptable degrees to ensure protection for, primarily, Republican candidates.

(It’s true–they’re unacceptable. Just ask the Fifth Circuit Court of Appeals about Districts 23, 27, and 35. And look at the map below.  Do those look like rational districts?)

Gerrymandering
Texas Congressional Districts, sourced from GovTrack.us.

Texas Has Opportunity

That does not mean, however, that Democrats must be resigned to constantly being in the minority in even deep-red States.  Over this past weekend, three progressive candidates in Pearland municipal elections either won outright or forced runoffs.

Mike Floyd, who is the 18 year-old son of John T. Floyd, won his election outright for a position on the Pearland School Board, beating Rusty Deborde. Quentin Wiltz, running for Mayor, and Dalia Kasseb, running for City Council, forced run-offs in their races.  Both stand excellent chances to win the runoffs in June.

No Small Roles

These victories, which garnered national attention, may seem small when writ against the backdrop of the vast amount of work which must still be done to even the playing field. However, they show what doing the hard work of knocking on doors, waving signs on the highway, and having a clear progressive message can do.

Fake Underreported Terrorism Attacks

The quick response to the hastily published list of 78 “terrorism” incidents which the Administration feels haven’t garnered enough media attention has been to point out that many entries are misspelled (“ATTAKERS” and “SAN BERNADINO”, for example). That’s a cheap and easy criticism. First, who hasn’t had an employer ask you to drop everything you’re doing and bang out a report immediately, due 30 minutes before being tasked with the assignment? Second, for whatever reason, Word doesn’t automatically spell-check words that are in all-caps, so, there won’t necessarily be red squiggles to catch your attention. (Then again, unless all the names on the list have been added to Word’s spell-check dictionary, the document was probably a sea of red squiggles, anyway, so…💁‍♂️)

No, there are more problematic aspects of the list, more so even than the incidents which absolutely *did* receive wall-to-wall coverage (Nice, for example, and San Bernardino–which led to a huge fight between the FBI and Apple regarding unlocking a phone, and which led to Trump calling for a boycott of the latter).

Read more “Fake Underreported Terrorism Attacks”

End of the Obama Era

Official portrait of Barack Obama
Official portrait of Barack Obama, by Pete Souza, The Obama-Biden Transition Project [CC BY 3.0, via Wikimedia Commons”
At 11:47a Eastern, Donald Trump became the 45th President of the United States.  As that happened, Barack Obama joined the ex-President’s club, leaving behind a legacy that will probably take a little time to truly comprehend.  Just as Bill Clinton benefited from slow-developing policies enacted by George H.W. Bush, it can take years before a President’s actions are truly understood.

I’m not ashamed–why would I be?–to admit that I voted for Obama in 2008 based on his promises to clean up the messes left behind by George W. Bush. And there were certainly messes, not the least of which–but probably the most obvious–was the near-collapse of the economy.  The problems in America, however, were so much deeper.  George W. Bush had presided over an administration which had flouted international human rights norms through its policies of extraordinary renditions, operation of so-called Black Sites and Gitmo, torture, and specious spying on Americans.  Obama ran on a platform that promised to end these abuses, promised to provide greater transparency, and promised to curtail the abuses of the Bush Administration.

So, how’d Obama do?

Read more “End of the Obama Era”

Vote Buying

"American Cash" by Revised by Reworked - Own work. Licensed under Public Domain via Commons.
American Cash” by Revised by ReworkedOwn work. Licensed under Public Domain via Commons.

T-Mobile’s CEO John Legere is a prolific tweeter, and he is one of the few CEO Twitter follows that provides entertainment. Whether he’s in Central Park running a race, handing out free phones to people who approach him, or engaging in a misguided back-and-forth with a person critical of T-Mobile’s signal strength, his Twitter account is legitimately fun to watch.  (As far as CEO accounts are fun.)

But he may have gone a step too far.

Vote-buying is a federal criminal violation, pursuant to 52 U.S.C. § 10307: “Whoever knowingly or willfully …. pays or offers to pay or accepts payment either for registration to vote or for voting shall be fined not more than $10,000 or imprisoned not more than five years, or both.”  (Emphasis added.)

Is it a Violation?

Assuming arguendo that the tweet is authentic (i.e., that there was an actual exchange of money for a promise not to vote for a particular candidate, and not that this was simply a piece of puffery), this would be a problematic admission. Certainly, had the tweet said “…I paid someone $100 to vote for Ben Carson in the primary election for President,” this would satisfy the bare elements of the statute: that this involved a primary election, that the election was for President, and that one person knowingly or willfully paid for voting.

Legere’s situation is slightly more complicated, however.  This involves an exchange of money to not vote for a particular person (I think an AUSA would make a compelling argument that “for voting” should be construed broadly since U.S. Sentencing Guidelines Manual § 2H2.1(a)(3) sets a base offense level of 6 for a defendant who “solicited, demanded, accepted, or agreed to accept anything of value to vote, refrain from voting, [or] vote for or against a particular candidate…” (emphasis added)),  and though it feels ticky-tack, was this in the context of a primary, special, or general election, or was it for something else?

Sentencing Considerations

Despite the large statutory maximum sentence of five years, the base offense level for vote-buying is relatively low by federal standards: 12, pursuant to 2H2.1(a)(2) (“if the obstruction occurred by forgery, fraud, theft, bribery, deceit, or other means”) (emphasis added).  An offense level of 12 translates to 10-16 months.

Financial Considerations

And, to be perfectly cheeky, what if all potential voters took Legere up on his offer of accepting $100 to not vote for Trump? According to the U.S. Census Bureau, as of November 2014, there were roughly 220 million citizens over the age of 18, of which 142 million are actually registered to vote.  First, if each person accepted that $100, that would constitute 142 million potential criminals.  Second, that would result in about $14.2 billion worth of bought votes. That’s a lot of money. I hope he’s got deep pockets.

TYSK: Changes to Texas Petitions for Nondisclosure are Coming

Vault
Image from: «WinonaSavingsBankVault» por JonathunderTrabajo propio. Disponible bajo la licencia CC BY-SA 3.0 vía Wikimedia Commons.

It wasn’t so long ago (February 26, 2015, to be precise) that I mentioned that people who did some sort of straight probation (rather than getting a deferred adjudication) were out of luck when it comes to sealing their criminal records in Texas.  (Which of course causes people to ask “How do they expect me to live and not steal stuff if I can’t get a job?!?!”  Perhaps not the most ethically responsible question to ask, but it’s at least understandable and does form the basis for the change…)

And when I speak to people in those situations, I always whimsically mention that maybe the Texas legislature will surprise all of us by giving people some sort of relief, even with a conviction, but until then… well.

Turns out, the Texas legislature has surprised us.

On September 1, 2015, the regime governing petitions for nondisclosure will change, opening up new opportunities for certain individuals to put mistakes behind them and try to get ahead in life.

Five Things You Should Know

  • 1. Senate Bill 1902 was signed by Governor Abbott on June 20, 2015, and the law will take effect September 1, 2015.
  • 2.  The Senate Research Center’s Bill Analysis addresses the need for such a change to the nondisclosure regime:
    • A criminal record can be a crippling barrier to obtaining employment. Studies show that ex-offenders who are gainfully employed are much less likely to re-offend. Thus, a responsible, limited expansion of current nondisclosure law is important in giving reformed offenders a second chance, creating a safer Texas, and increasing the workforce with individuals who are no longer limited by their minor criminal histories.
  • 3. An Order of Nondisclosure is not for everybody.  As the Bill Analysis states, in part: “S.B. 1902 maintains current law which exempts serious violent offenders, sexual offenders, and family violent offenders from ever receiving an OND.” There are other exceptions to receiving an OND.
  • 4. The procedure and eligibility information for Orders of Nondisclosure is transferred from Tex. Govt. Code § 411.081(f) to Tex. Govt. Code § 411.0715 et seq.  The new regime is fairly convoluted (not that the old system wasn’t) and, as is typical for Texas statutes, contains a lot of cross-references.
  • 5. There are 4 classes of individuals who are eligible for an Order of Nondisclosure:
    • First-Time Non-Violent Misdemeanor Offenders placed on Deferred Adjudication (Texas Govt. Code § 411.072)
    • “Traditional” Nondisclosure Petitioners (Tex. Govt. Code § 411.0725)
    • Non-Violent, Non-Sexual, Non-Alcohol Misdemeanor Offenders placed on “Straight” Probation (Tex. Govt. Code § 411.073)
    • Non-Violent, Non-Sexual, Non-Alcohol Misdemeanor Offenders who serve a period of confinement (Tex. Govt. Code § 411.0735)

There are indubitably some downsides to the new nondisclosure regime. For example, certain law enforcement, educational, and licensing agencies are still entitled to review one’s criminal record.  In addition, banks and other financial institutions, along with facilities that handle dangerous materials, will be allowed to review the criminal record in certain situations.

I’m still wading through the legislation, but if you have any questions regarding petitioning for an order of nondisclosure, please feel free to contact me.

Data Privacy and Backdoors

GibberishI don’t often talk about politics here because it’s an alienating topic.  It is what it is.

Every now and then, though, political news touches on things that make sense for me to discuss.  Such as a recent open letter from over 50 tech companies, public-interest groups, and academics urging the Obama Administration to knock it off already when it comes to calls for more access to data on smartphones and other technological devices and services.  USA Today writes about it today with the click-baity title “Apple and Google to Obama: Hands Off Our Phones!” but many other news orgs, beginning with the Washington Post, are talking about the letter (PDF), too.

The letter is in response to comments made in April by Administration officials who expressed concern about encryption technology being present in our devices. In other words, law enforcement doesn’t like how it can sometimes be difficult to get into people’s phones and computers. The signatories to the letter, however, state: “Whether you call them ‘front doors’ or ‘back doors,’ introducing intentional vulnerabilities into secure products for the government’s use will make those products less secure against other attackers. Every computer security expert that has spoken publicly on this issue agrees on this point, including the government’s own experts.”

Enter Cynicism

It all sounds like privacy-positive advocacy, and it certainly has a bunch of good names attached to it.  The American Library Association, ACLU, EFF, EPIC, The Tor Project, Human Rights Watch… All names that you would want to see attached to such a letter.  But the cynic in me (remember, I mentioned that attorneys tend to be cynical) notes that among the corporate signatories–the list of which includes Apple, Google, Facebook, Microsoft, Yahoo, CREDO mobile (which coincidentally just sent me an email), and Hewlett Packard, just to name a few–there are some notable exceptions.  None of the major ISPs or telecoms are signatories, for example. AT&T, Verizon, Sprint, T-Mobile, Time Warner, Comcast, Cox, and Charter are nowhere to be found. (Of course, their appearance would be highly suspect considering the controversies surrounding NSA access to certain companies’ records. On the other hand, Google, Microsoft, and Yahoo! were all mentioned in the first leak of the Snowden documents, so it’s all a mess, and, again, is why I’m a cynic.)

That there is a need for such a letter to be written is a reflection of the extremely high value attached to personal data, perhaps seen most starkly in the sale of RadioShack’s assets.  Not only can (and does) law enforcement and intelligence-gathering outfits make use of personal data to investigate individuals and “threats,” but corporate interests want the data to continue flowing for their own pecuniary gains.  In other words, every entity that is not a consumer wants data to flow freely.

I say consumers don’t really want data to flow freely because I don’t know anyone who really likes that searching for, say, a toaster on Amazon means that for the next few days you’ll be seeing ads for the same toaster on a variety of other websites. Yes, there are certainly ways to get around tracking cookies, but at some point I think the majority of people just give up.  And yes, services like Google Now that will pop up your plane ticket automatically on your phone when you get to the airport relies heavily on access to your personal data to function; I think most consumers would be fine with getting the same services if there were a way to get them without providing all their personal data to Google.  Then again, I say that, and then I read an article from 2014 which says that only a bare majority of poll respondents thinks that tech companies have encroached too much. So, maybe I’m wrong.

While the government and the corporations both have an interest in free-flowing data, both columns contain the seed for having away all the nice things taken away.  If I had to guess, though, I’d say that the government ultimately has the trump card.  Backdoors already exist, whether they are covert (as the Snowden documents have shown) or explicit (CALEA and the FCC expansion). And the government keeps agitating for more and more access, despite periodic letters criticizing such agitation.  At the same time, personal data is flowing in ever-increasing ways, with, as noted, a slim majority of people having concerns about the stream. I’m cynical about ever putting the personal data genie back in the bottle, but I hope I’m proven wrong.

KSM and Others Leave Gitmo for New York?

Interesting.  According to the AP (and others), five Gitmo detainees will be tried in a civilian court in New York for the 9/11 attacks.  Among these detainees will apparently be Khalid Sheikh Mohammed, who purportedly confessed to masterminding the attacks after severe waterboarding.  Which raises all sorts of evidentiary issues, as Charlie Savage of the New York Times points out:

The decisions about how to prosecute Mr. Mohammed and Mr. Nashiri have been particularly difficult because their defense lawyers are expected to argue that they were illegally tortured by the Central Intelligence Agency during their confinement, tainting any evidence gathered from their interrogations.

In addition to the civilian trial(s), five others will be sent to a brig (probably in South Carolina) for trial before a military commission.  Attorney General Eric Holder is expected to make an official announcement at 11a today.

This announcement, like the under-reported news that President Obama has sent war planners back to the table to come up with better ideas about Afghanistan, signals a potential shift in Obama’s resolve.  Neither decision will be politically popular, and we haven’t seen Obama flex his muscles in quite a while.

Extraordinary Rendition–Convictions

It’s been awhile since extraordinary rendition has been in the news, but the Italians have done something that is both unexpected and not surprising.  It’s unexpected because it isn’t often that CIA agents are convicted of anything anywhere, and it’s not surprising because they were tried in absentia.

The convictions involve 23 CIA agents who allegedly kidnapped a very influential Italian Imam–Abu Omar–off the streets of Milan, and then sneaked him off somewhere, where he was then allegedly tortured.  The Italians have, from time to time, thought of having the agents extradited from the United States, but nothing ever came of that (mainly because the Secretary of State would never authorize the extradition, and it would cause diplomatic friction, so Italian authorities never pursued the matter).  In lieu of that, then, the Italians opted to try the agents in absentia and now they have been convicted.  (Link)  It really doesn’t mean a whole lot from a practical perspective other than that the agents are pretty much barred from going to Europe now.