Category: reason

From Politico (Josh Gerstein):

In November, the FBI conducted predawn raids at the home of Project Veritas founder James O’Keefe and the homes of two other individuals who worked with the group. The agents acted with warrants that allowed them to seize phones and computers to search for evidence of trafficking in interstate property [apparently related to an investigation into the alleged theft of Ashley Biden’s diary -EV].

The raids generated controversy in some circles because Project Veritas identifies itself as a news organization and the use of search warrants against journalists and news outlets is extremely rare due to Justice Department policies and a federal law passed in 1980 to limit such investigative steps.

After the raids, U.S. District Court Judge Analisa Torres agreed to a request by the group to put in place a special master to review the information on the seized devices to ensure that prosecutors did not get access to emails, text messages and other records that might be subject to attorney-client privilege or other legal protections.

However, in a letter Tuesday to a federal judge overseeing aspects of the probe, Project Veritas’ attorneys said they recently learned that that for nearly a year before last November’s raids prosecutors used gag orders to keep quiet other steps taken in the diary probe, including grand jury subpoenas and court-ordered seizures of all of the emails O’Keefe and several colleagues kept in particular accounts over a three-month span in 2020.

The ACLU, while saying it “deplore[s] Project Veritas’ deceptions,” and noting that the details of the government investigation aren’t fully available, adds:

[W]e’re concerned that the precedent set by this case could have serious consequences for press freedom. We’re deeply troubled by reports that the Department of Justice obtained secret electronic surveillance orders requiring sweeping disclosure of “all content” of communications associated with Project Veritas email accounts, including attorney-client communications.

Compounding these concerns, the government suppressed information about the existence of the electronic surveillance orders even after the investigation became public knowledge and the district court appointed a special master to supervise prosecutors’ access to Project Veritas’ sensitive materials. The government must immediately suspend its review of the materials obtained pursuant to its electronic surveillance orders and fully disclose the extent of its actions, so that the court can consider appropriate relief.

You can see many of the filings in the case here.

The post "Project Veritas Says Feds Secretly Accessed Its Emails" appeared first on Reason.com.

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The Senate Judiciary Committee on Tuesday continued its questioning of Supreme Court nominee Ketanji Brown Jackson. And, as these things tend to go, the hearing focused primarily on the sort of political theater more likely to generate clips for cable news than to extract productive tidbits about Jackson’s approach to the bench.

But a series of exchanges took that to new heights as the nominee spent a considerable amount of time outlining for the committee how being an attorney works and how basic trial practices play out in reality.

Early on there was her exchange with Sen. Lindsey Graham (R–S.C.), who took issue with a few things: There was the fact that President Joe Biden declined to nominate District Judge Michelle Childs, who hails from his state; there was a bizarre line of questioning about Jackson’s religious beliefs and if she could fairly judge a Catholic; and then there was his probing around an amicus brief Jackson filed on behalf of the libertarian Cato Institute in support of detainees on Guantanamo Bay who had been held without the government charging them with a crime. The nominee responded that the brief didn’t necessarily reflect her views, to which Graham replied: “Why would you do that if it’s not your position?”

“I would refer you to the same sorts of statements that Chief Justice Roberts made when he came before the committee,” Jackson said, “which is that lawyers represent clients.”

Graham, an attorney himself who spent years representing clients in the Air Force, likely knows this. But it gave him an opportunity to launch a monologue as if he did not, punctuated by him storming out of his seat in view of the camera.

When Sen. Ted Cruz (R–Texas) took his turn, he pivoted back to allegations—originally raised by Sen. Josh Hawley (R–Mo.)—that Jackson is soft on child predators. During his time, Cruz brandished a chart outlining a series of cases in which Jackson sentenced defendants to lower prison terms than the government requested.

Missing from his spiel was that in the vast majority of non-production cases—meaning a defendant was not charged with creating pornographic content but instead with viewing or possessing it—federal judges nominated by both Republican and Democratic administrations do exactly what Jackson did: sentence such offenders below the federal sentencing guidelines. This is because there is a wide, bipartisan consensus among judges that those guidelines (which are non-binding) are overly punitive and do not appropriately distinguish between various types of offenses—something Jackson reiterated over and over. These defendants aren’t walking free. On the contrary, Jackson argued they should not. Instead, she expressed the mainstream judicial view that there should be nuance, which is easy to weaponize in an era where performance goes farther than substance.

Also missing from Cruz’s time: the fact that judges are not obligated to accept a sentence just because a prosecutor demands it, and they often don’t. That’s not a partisan concept. Cruz, who is also an attorney, is surely familiar with it. He’s just hoping you’re not.

The post Ketanji Brown Jackson Explains to Lawmakers How Being a Lawyer Works appeared first on Reason.com.

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From Judge William Session III in Ha v. Conn (D. Vt.):

[Defendant] Ms. Conn’s attorney withdrew from the case several months ago {stating that his relationship with his client had “irrevocably broken down”}. The Court subsequently ordered Ms. Conn [on November 5, 2021] to appear with replacement counsel, or enter her own appearance pro se (representing herself), within 30 days. That deadline passed in December 2021, and Ms. Conn has failed to comply. Plaintiffs now contend that the litigation is stalled, and that Ms. Conn’s ongoing tortious conduct continues to cause them harm. Plaintiffs therefore move for monetary sanctions to compel Ms. Conn’s compliance with the Court’s order….

Plaintiffs bring this action claiming that Ms. Conn has defamed them by publicly accusing them of “criminal offenses involving moral turpitude.” Ms. Conn has also allegedly posted intimidating and harassing videos “motivated by ethnic, racial, religious and gender animosity.” This conduct is reportedly ongoing. For relief, Plaintiffs seek compensatory damages, punitive damages, injunctive relief and attorney’s fees….

The Court previously dismissed Ms. Conn’s counterclaims as a sanction for [her] failure [to comply with the order to enter an appearance]. Plaintiffs now request daily monetary sanctions, payable to the Court, until Ms. Conn complies with [that] order. Plaintiffs also request attorney’s fees incurred in connection with their motion….

“Courts of justice are universally acknowledged to be vested, by their very creation, with power to impose … submission to their lawful mandates.” Those powers are “governed not by rule or statute but by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.” Accordingly, a court may hold a non-compliant litigant in contempt for disobeying a lawful order. “The underlying concern that gave rise to the contempt power was not … merely the disruption of court proceedings. Rather, it was disobedience to the orders of the Judiciary, regardless of whether such disobedience interfered with the conduct of trial.”

“The imposition of civil contempt sanctions may serve dual purposes: to secure future compliance with court orders and to compensate the party that has been wronged.” To the extent a contempt sanction is coercive, the court has “broad discretion to design a remedy that will bring about compliance.” … “[W]hile pro se litigants may in general deserve more lenient treatment than those represented by counsel, all litigants, including pro ses, have an obligation to comply with court orders. When they flout that obligation they, like all litigants, must suffer the consequences of their actions.”

Plaintiffs’ counsel has submitted an affidavit asserting that Ms. Conn continues to defame, harass and intimidate his clients. Plaintiffs have also allegedly observed Ms. Conn boasting on the internet about her financial assets, while public records reportedly show that she owns real estate in Vermont. Accordingly, Plaintiffs request monetary sanctions in the amount of $500 to $1000 per day until Ms. Conn complies with the Court’s November 5, 2021 order.

Given Ms. Conn’s months-long failure to abide by the Court’s order, Plaintiffs’ request for monetary sanctions is appropriate. The “character and magnitude” of the harm caused by Ms. Conn’s delay, particularly in light of allegedly-ongoing defamatory conduct, is not insignificant.

With only minimal evidence of her liquid assets, however, the Court must take care to fashion a fine that is both reasonable and effective. The Court will therefore impose a sanction of $200 per day, for not more than 25 days, for each continued day of non-compliance with the November 5, 2021 order. The sanctions shall commence five days after the date of this Opinion and Order, and shall be payable to the United States District Court, for deposit in the Court’s registry and will be held until further order of the Court. The Court also grants Plaintiffs’ request for reasonable attorney’s fees.

If Ms. Conn does not comply with the November 5, 2021 order within 30 days, Plaintiffs may file a dispositive motion and/or move for additional sanctions….

The post Sanctions for Libel Defendant's Obstructionism (Perhaps Connected to Continuing Libel) appeared first on Reason.com.

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As a controversial new rent control law in St. Paul, Minnesota, nears its implementation date, politicians are scrambling to define the terms of the vague new policy, mitigate its worst effects, or even overturn it entirely.

Tomorrow the St. Paul City Council will discuss the details of implementing Question 1, a brief, voter-passed ordinance that caps annual rent increases at 3 percent and which includes none of the typical exemptions or allowances for new construction, vacant units, or inflation.

The policy isn’t scheduled to take effect until May 1. Nevertheless, its strictness has seen developers flee the city almost immediately after its passage in November 2021. Thousands of planned new housings units have been put on hold or canceled, and the number of new multifamily building permits issued by the city has plunged.

St. Paul’s ordinance does allow landlords to request exemptions to that 3 percent cap pursuant to their “right to a reasonable return on investment.” But what counts as a reasonable return on investment and how they’d go about requesting that exemption go undefined in the text of the initiative. Even some basic terms, like what counts as “rent” subject to that 3 percent cap, aren’t spelled out.

That lack of definitions has been a major source of frustration for both rent control critics and proponents.

The latter group complains that landlords are trying to subvert the law by jacking up utility costs or charging separate fees for repairs and property improvements. Some state legislators have pointed to the vagueness of the law as a reason for repealing it entirely.

“They don’t even have their terms defined. They don’t even have what rent is defined yet,” said state Sen. Rich Draheim (R–Madison Lake) last week. “Does it include utilities? Does it include parking? Does it include internet? Lot of questions.”

Draheim made those comments at a hearing for the Minnesota Senate’s Committee on Local Government Policy, where his bill nullifying St. Paul’s rent control ordinance and banning all other cities from imposing rent control in the future was being discussed.

At that hearing, Draheim and other opponents of rent control stressed the damage that St. Paul’s rent control policy was doing to new development in the city.

The senator referenced Census Bureau data showing that new multifamily building permits had fallen 80 percent year-over-year in the months after St. Paul passed rent control. In neighboring Minneapolis, new multifamily permits are up 60 percent. Nationwide, 2022 is looking like a blockbuster year for apartment construction. Cecil Smith of the Minnesota Multifamily Association said at the same hearing that developers had canceled or suspended their plans to build around 3,100 units in St. Paul since the ordinance passed.

On the St. Paul City Council’s Wednesday agenda is a pair of ordinances intended to clear up ambiguities in the new law and provide some certainty for property owners and tenants. The first ordinance would establish basic definitions for terms like “rent” and “rental unit.” The other would direct St. Paul’s Department of Safety and Inspections (DSI) to articulate what a reasonable rate of return for landlords will be and establish a uniform process for requesting exemptions.

The latter bill would still require some rule-making from DSI, which city staff say will last into April.

That leaves more time for even larger changes to St. Paul’s rent control policy. The city’s mayor, Melvin Carter, has asked the council to exempt rental properties less than 15 years old from the 3 percent rent cap. That exemption wouldn’t kick in until January 2023.

State-level rent control policies passed by California and Oregon in 2019 include an identical 15-year exemption for new construction. The idea is to allow developers price flexibility so as not to deter new supply.

There’s reason to believe that even including an exemption on new construction will reduce some developers’ incentive to build. Obviously, all new, unregulated development becomes old, rent-controlled housing stock over time.

California and Oregon policies also include a number of other exemptions to their state-level rent control laws. They allow property owners, up to a point, to add inflation to allowable rent increases. They both allow landlords to raise rents as high as they want between tenants and have higher caps on rent increases: 5 percent in California and 7 percent in Oregon.

A city-assembled stakeholder group has discussed making those exemptions to St. Paul’s law, but no one has offered a formal proposal yet. Activists who got rent control on the city’s ballot last year are deadset against even an exemption for new construction.

They’ve also criticized the idea that rent control is causing the collapse of development activity in St. Paul.

“It’s the industry’s jobs to adapt to market conditions, not to threaten cities with disinvestment,” Tram Hoang of St. Paul’s Housing Justice Center said at the Senate committee hearing last week. She said that supply chain issues and a labor shortage are the real reasons developers are delaying construction.

It seems that developers are adapting to market conditions by not building housing. It’s true that lots of market factors go into when and where developers try to build. But the fact that new building permits are up in neighboring Minneapolis suggests rent control is playing a bigger role in reducing supply than rent control advocates would like to admit.

The chances are slim that St. Paul’s rent control initiative will be overturned in its entirety. The MinnPost reports that Draheim’s bill faces long odds in Minnesota’s Democrat/Farm Labor-controlled House of Representatives. Even some Republican senators questioned whether it was right to retroactively overturn the will of St. Paul voters.

Rent control advocates have stressed that point as well.

“We cannot spread the message that community building is the problem,” said B Rosa, an activist with the Housing Equity Now St. Paul, at the committee hearing on Draheim’s bill. “Taking away the right to organize your community is not only irresponsible, it goes against democracy.”

In this case, rent control advocates’ version of building community seems to be coming at the expense of building buildings.

The post America's Most Controversial Rent Control Law Is Getting a Hasty Makeover appeared first on Reason.com.

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From banning gas and oil drilling on federal lands to fixing problems with the Affordable Care Act and overhauling the immigration system, a group of congressional Democrats is pushing the Biden administration to take executive action on a host of issues that Congress apparently can’t or won’t deal with.

Someone might want to remind them that Democrats have a majority in both chambers.

But why go through the effort to pass legislation when you can have a president do it with the mere stroke of a pen? That’s the energy emanating from the seven-page “Recommendations for Executive Action” memo published last week by the Congressional Progressive Caucus, a coalition of about 100 left-wing lawmakers.

These lawmakers should note, though, that executive actions can be easily undone by the next Republican president, so any policy wins achieved this way will be fleeting at best and serve only to expand the bloated powers of the executive branch.

Among other things, progressives are asking the White House to declare “a National Climate Emergency” to unlock even more presidential authority over any aspect of the economy that is judged to be contributing to global warming. The progressives’ memo urges the Biden administration to unilaterally cancel subsidies for fossil fuels, cut off all federal loans and grant programs to fossil fuel projects and infrastructure, implement a new drilling ban on federal land, and “invoke authorities under the Defense Production Act and Trade Expansion Act” to promote green energy projects and ban imported oil. 

The specific calls for President Joe Biden to use the Defense Production Act and Trade Expansion Act are noteworthy because former President Donald Trump invoked both during his time in office to significantly expand executive authority over the domestic economy and international trade. At the time, some warned that Trump’s use of those laws to achieve Republicans’ politically motivated ends would offer an easy road map for Democrats to follow when they retook the White House.

Peter Harrell, then a trade policy expert for the Center for a New American Security (and now a member of the White House’s National Security Council) made the link explicit in a 2020 essay for Foreign Policy. “Fortunately for supporters of aggressive curbs on global emissions, President Donald Trump has demonstrated a highly effective way to circumvent the legislative process,” he wrote. “His use of national security laws to impose tariffs and sanctions sets a precedent for a future Democratic president to address climate change even if Congress fails to act.”

This is how it always goes. One party sets a new precedent for executive power, and the other party rushes to take advantage as soon as possible. Rinse, repeat.

The progressives’ wishlist for the Biden administration also includes price controls for drugs like insulin and naloxone, the cancellation of all federal student debt, and the creation of a federal Office of Gun Violence Prevention to impose more restrictions on Americans’ Second Amendment rights. 

It’s not all expensive, unworkable, big government stuff. There’s a whole section urging the Biden administration to accept more refugees from places like El Salvador, Hong Kong, and Yemen, and to liberalize immigration laws in general. Other portions call for executive orders to increase transparency in America’s police departments and in government contracting.

But the relative merits or drawbacks of any of these proposals are somewhat beside the point. Every member of the progressive caucus in Congress is, by definition, a member of Congress capable of writing and introducing legislation. If these lawmakers want to see changes to existing laws like the Affordable Care Act or want to create more laws to limit gas drilling, abolish student loans, or change the immigration system, they should work with their colleagues to pass those pieces of legislation.

The executive branch does not exist so ideas that cannot get the requisite votes in Congress can become national policy anyway. This is exactly backward. Presidents are supposed to take their agendas before Congress to get approval or denial by the representatives of the American people. Isn’t that the whole point of the State of the Union dog and pony show we had to sit through last month?

“It’s a sad commentary on our current Congress that its members would invite and even urge the executive branch to arrogate legislative power to itself,” writes David Boaz, executive vice president of the libertarian Cato Institute. Boaz notes that Trump accused [former President Barack] Obama of taking “the easy way out” and promised to do away with executive orders—only to then issue 220 executive orders in four years compared to 276 issued by Obama over eight years. Biden, despite frequently talking about the necessity of political consensus, has already issued 85 executive orders, putting him roughly on pace to match or exceed Trump’s one-term output.

This is no way for a small-r republican government to function. It’s also no way for a progressive faction to achieve lasting policy wins, since any executive order can be simply undone by the next Republican president—many of those Trump executive orders were reversing Obama ones, ditto for Biden versus Trump.

This is not, as Rolling Stone magazine called it, a “plan to save the Democratic Party from itself.” It is nearly 100 of the mere 435 people privileged enough to be federal lawmakers saying out loud that they believe themselves to be obsolete. If they want to advocate for executive action, these progressives should resign from Congress, become lobbyists, and let people who want to be legislators do the job.

The post Progressive Lawmakers Ask Joe Biden To Do Their Jobs for Them With Executive Orders appeared first on Reason.com.

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