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.

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”

Why Police Killings Are a Thing

See page for author [Public domain], via Wikimedia Commons
A lot has been said in the past year or so about law enforcement officers killing people, with hardly a day going by without some news story on the matter.  For example, an unarmed black man was killed by officers in San Diego just yesterday.

A lot of the controversy surrounding police killings involves separation of governmental powers.  Going through a primer on the three branches of government seems unnecessary to me, but simply put: once the legislature passes laws, and the executive signs the law into effect, someone has to make sure that the laws are executed.  Criminal laws are essentially prohibitions with consequences (i.e., “thou shalt not kill” and if you do, you will go to jail for a long time, or even lose your own life).  That means that the execution of the laws requires some entity to make sure that the prohibited act either never happens in the first place, or–if the prohibited act occurs–the violator is rendered up for judgment.

Read more “Why Police Killings Are a Thing”

Facebook’s Data Collection–I’m a Late Adopter?

The New York Times recently ran a story (found via Geekwire) on Facebook’s deep trove of personal data that it keeps on people, including its opinion on where you fall on the political spectrum.  While I find it amusing that the algorithm believes I’m politically moderate, I am also amazed at the sheer number of things there are profiles for. Under “Hobbies and activities,” for example, it lists “Duck,” “Firefly” (okay, that was a really good series), and “Herding.” Under “Food and drink,” it lists “Cheese sandwich,” “Garlic,” and “Mustard.”  Fair enough.

And under “Lifestyle and culture,” it includes “Technology late adopters.” This surprises me. After all, I jumped all over the Insider Preview opportunity to try out Windows 10, I try to keep as up-to-date on technology trends as possible (even keeping tabs on Android developments even though I have no Android devices (I don’t think Amazon’s tablets count, really)).  And I bought that danged Venue 8 Pro pretty soon after its release.

Am I Really a Late Adopter?

The more I think about it, though, the more I realize it isn’t that inaccurate. I didn’t really see the utility of text messaging on dumb phones back in the mid-2000s, didn’t understand the appeal of cameras on dumb phones when they first showed up (why would you want to take a 320×240 grainy picture of anything?), and I didn’t get an iPhone until the 5 came out (and only then because my Evo 4G was a piece of junk and I just needed something that would handle Exchange properly).  I prefer the “s” iterations of the iPhone, and I don’t own a smart watch, though the Microsoft Band intrigues me. And while I love the idea of a Smart Home with all my lights, A/V devices, and door locks controllable from some central hub, I’m not certain it would really make an appreciable difference.

Advertising to Late Adopters

The other thing that strikes me about having an advertising category for late adopters is the question of what sort of ads get served to that demographic.  I imagine early adopter advertising is probably fairly easy: “This is the latest and greatest, and you gotta have it!!”  But late adopters probably aren’t motivated by FOMO. So, what does representative advertising for late adopters look like? Something like this:

Typical late adopter advertising? Typical late adopter advertising? Typical late adopter advertising?

Thai (I think)-language based home renovation. Something unintelligible to me.  Dental services,  A chance to win a Starbucks gift card.  And an external battery charger. Okay. Sure.  I mean, external battery packs are somewhat relevant to the technology category.  But everything else..?  I expected ads for clearance gadgets, but if Facebook’s metrics show that late adopters respond to those things, I guess that’s working for them.

In any event, I just find the whole thing amusing.

No Big Surprise: FanDuel and DraftKings Ordered to Stop

"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.

It really comes as no surprise that New York’s Attorney General has ordered FanDuel and DraftKings to stop taking money from New York residents.  This is because the New York AG has determined that the operations are illegal gambling enterprises, even though the companies insist that they rely on skill rather than chance. Those of us who remember the explosion and subsequent clamp-down on online poker saw this coming, and I’m betting (sorry) that it won’t stop with New York.

Internet-based gaming first caught Congress’s attention in the mid-00s with the proliferation of websites devoted to playing poker online. The Unlawful Internet Gambling Enforcement Act (the acronym for which, UIGEA, is strangely unwitty) is codified at 31 U.S.C. §§ 5361-5367, and was passed in 2006 after the National Gambling Impact Study Commission recommended the passage of legislation to prohibit the electronic transfer of funds to gambling sites or the banks which supported them.  In 2011, indictments were brought against PokerStars, Full Tilt Poker, and Absolute Poker, alleging the federal crimes of conspiracy, wire fraud, money laundering and illegal gambling. At least one individual associated with the case pleaded guilty and was sentenced to time served.

Fantasy sports have always stayed just inside the legal side of the line, and we’ll see if the ongoing FBI and DOJ investigations change that.

In Texas-related developments, Governor Abbott has ordered the Texas Lottery Commission to cease activities related to gathering information about incorporating internet gaming to the State’s sanctioned gambling framework.

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.

Weaponized Police Drones

"Aeryon Scout In Flight" by Dkroetsch - Own work. Licensed under Public Domain via Commons.
Aeryon Scout In Flight” by DkroetschOwn work. Licensed under Public Domain via Commons.

North Dakota’s police forces can outfit drones with any variety of “nonlethal” weapons, according to a Daily Beast article.  This really shouldn’t be surprising, given the increased militarization of the United States’ police forces. Six years ago, when I wrote about LRADs (Long Range Acoustical Devices) being deployed in Pittsburgh during a G-20 summit, the use of such “nonlethal” weapons by police forces was seen as somewhat unique.  Now, though, with police forces engaging in wanton teargassing of subdued Occupy protesters at UC-Davis and the police behavior in Ferguson, MO several months ago, it is a logical progression for police forces to want to take to the skies.

Drones are one of the more interesting gizmo-related developments to come along in the past couple of years.  For just a few hundred dollars, anyone can purchase a machine that is highly maneuverable, can provide high definition surveillance, and can even carry a payload.  They are seemingly ubiquitous to the point where news articles are published about how the use of drones bothers grizzly bears and interferes with firefighting efforts.

Ubiquity is a Problem

The fact that drones are so easily obtainable raises the question that is presented in the Daily Beast article:

Grand Forks County Sheriff Bob Rost said his department’s drones are only equipped with cameras and he doesn’t think he should need a warrant to go snooping [as is required by the bill].

‘It was a bad bill to start with,’ Rost told the Daily Beast. ‘We just thought the whole thing was ridiculous.’

Rost said he needs to use drones for surveillance in order to obtain a warrant in the first place. (Emphasis in original.)

Drone surveillance is much like the FLIR surveillance central to Kyllo v. United States, 533 U.S. 27 (2001).  In summary, the Supreme Court of the United States held that using FLIR to detect heat emanating from grow houses was an unconstitutional because it constituted the use of a sense-enhancing technology to obtain information regarding the interior of the home that could not otherwise have been obtained without physical intrusion into a constitutionally protected area.  Kyllo at 34.  This holding, however, has always had a poison pill attached to it: “at least where (as here) the technology in question is not in general public use.”

This qualifying language has been used in the context of WiFi signal analysis to prosecute an individual in Maine for interstate cyberstalking and identity theft. United States v. Sayer, 2012 U.S. Dist. LEXIS 82729 (D.Me. 2012). The defendant in this case argued that it was an illegal warrantless search to do a “wireless survey of WiFi/Internet signals”, relying on the holding in Kyllo.  As the Court stated, “Moreover, the technology that they used [to do the WiFi analysis] is in general public use; anyone with a laptop with wireless capability can find evidence of WiFi signals. This is not Kyllo’s advanced technology ‘not in general public use.'”

What Impact Does a Drone Have?

The pace of technology is both beneficial and problematic.  20 years ago, Windows 95 launched. The Internet was barely a “thing,” and Broadband and WiFi was still something that was in its infancy. The result in Sayer would have been very different at that time.  Six years later, by the time Windows XP came out, the Internet was absolutely a thing, so much so that Pets.com’s sock puppet had become a symbol of the dot-com bubble burst.

"Pets.com sockpuppet" by Jacob Bøtter from Copenhagen, Denmark - Flickr. Licensed under CC BY 2.0 via Commons.
Pets.com sockpuppet” by Jacob Bøtter from Copenhagen, DenmarkFlickr. Licensed under CC BY 2.0 via Commons.

WiFi was still not ubiquitous at that time, however. Many laptops shipped with PCMCIA slots into which you slid wireless cards; these wireless cards often cost over $100 at the time, and unless you had access to a wireless network, there was little need to purchase them.  Even in 2001, the holding in Sayer would likely have been different.

Now, however, in 2015, our phones have robust WiFi adapters built in, and the technology is thoroughly ubiquitous.

Drones have come a long way in a very short period of time. One of the first videos of GRASP lab’s “autonomous quadrotors” was put on YouTube in 2010.

Since then, prices for drones have come down substantially, to the point where Amazon.com has an entire shop devoted to a wide range of the devices with a wide range of capabilities, including taking infrared video. Someone even posted a video to YouTube this summer showing a quadrotor that was able to fire a pistol.

Drones, in short, are quickly approaching ubiquity status, meaning that the protections provided by Kyllo can easily be side-stepped.  Admittedly, it is very easy to engage in slippery slope discussion about Constitutional protections. Nonetheless, it’s always important to remember that our Constitutional protections are not always as strong as we believe them to be.

TYSK–Infidelity and Divorce in Texas

Divorce
By Jennifer Pahlka from Oakland, CA, sfo  [CC BY-SA 2.0], via Wikimedia Commons
The AshleyMadison.com hack and subsequent release of about 30GB of user data claimed at least one very high-profile victim this week: Josh Duggar.  The former FRC Action head’s brand image was already tarnished by his acknowledged inappropriate behavior with his siblings (hence, why his position with the Family Research Council is marked with “former”), and now his acknowledged infidelity brings that image even lower.

(As an aside, generally speaking, whether a person has an affair is pretty much an issue to be dealt with only by that person and that person’s spouse.  However, when a person has made a career on publicly and zealously telling other people that affairs and pornography are evils which must be eradicated, but doesn’t toe the line himself, I think it becomes newsworthy.)

Can You Sue Your Cheating Spouse in Texas?

Infidelity, cheating, adultery, alienation of affection, criminal conversation, whatever you want to call it, used to be a crime in Texas.  (It still is, in fact, in some states; whether those laws would actually be enforced today is another question.)  It also used to be an independent tort which could support a civil cause of action against the wayward spouse.  Since 1997, however, Texas does not have an independent cause of action against someone who strays. See Tex. Fam. Code §§ 1.106 & 1.107.

How About Divorcing Your Cheating Spouse?

Adultery, however, is explicitly listed as a grounds for divorce in Texas.  See Tex. Fam. Code § 6.003 (“The court may grant a divorce in favor of one spouse if the other spouse has committed adultery.”)  Rarely, though, will you see a divorce petition which lists adultery as the reason for the divorce.  This is because Texas allows a divorce without fault when things have become irreconcilable.  See id. § 6.001 (“the court may grant a divorce without regard to fault if the marriage has become insupportable because of discord or conflict of personalities that destroys the legitimate ends of the marital relationship and prevents any reasonable expectation of reconciliation.”)  With such catch-all language available, there is often little reason to make a spectacle of such proceedings.  In other words, while infidelity indubitably is the cause of many divorces, many parties simply want to get the proceedings over with with as little hassle as possible.

This is not to say that adultery should never be alleged in a petition for divorce.  Adultery, for example, is one of the factors a court will consider when determining whether spousal maintenance should be ordered.  See Tex. Fam. Code § 8.052(10).  It can also affect the division of the community’s property. See id. § 7.001 (“the court shall order a division of the estate of the parties in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage.”)  It can also be a factor in determining whether a party has committed a fraud on the community, and if so, whether that will affect the division of the estate.

Not All Affairs End in Divorce

It is also important to note that a great number of relationships have been able to withstand a spouse’s infidelity, and I’m certainly not suggesting that Anna Duggar is going to run out to file divorce papers on Josh Duggar.

If, however, you have questions about your spouse’s infidelity and how it affects you, please contact the Choate Firm to schedule an appointment.