Brickbat: Bad Review

Marine Le PenFrench prosecutors have asked a magistrate to charge National Rally party leader Marine Le Pen with “circulating violent pictures liable to be seen by children” for tweeting images of atrocities committed by the Islamic State. Le Pen has already been stripped of her parliamentary immunity against being prosecuted.

from Hit & Run

Mueller’s Conclusion: No Coordination Between Trump Campaign and Russia

President Donald TrumpThe investigators working for Special Counsel Robert Mueller did not find evidence that President Donald Trump or anybody connected with him directly conspired or coordinated with Russian nationals or entities attempting to influence the outcome of the U.S. presidential election in 2016.

That’s according to a long-awaited summary of the outcome of Mueller’s investigation, which was delivered today to the heads of Congress’ judiciary committees and then almost immediately released to the public.

The four-page memo written by Attorney General William Barr states clearly, “The Special Counsel’s investigation did not find that the Trump campaign or anyone associated with it conspired or coordinated with Russia in its efforts to influence the 2016 U.S. presidential election.”

Barr’s letter explains that Mueller’s team looked at the two big efforts by Russian entities to meddle with the election outcome—both the secret, concealed campaign to spread discord and misinformation on the internet, and the hacking operations that gathered secret Democratic Party emails and communications within Hillary Clinton’s campaign—and found no involvement from Trump or people on his campaign.

Furthermore, the report explored accusations that Trump obstructed justice by his actions during the investigation, like firing FBI Director James Comey. Here, Mueller essentially punted. Mueller did not draw a conclusion one way or the other as to whether Trump’s behavior counted as obstruction, and will leave it to Barr to make a decision to prosecute. Mueller’s report does not conclude that Trump committed a crime, but also does not exonerate him, according to Barr.

Barr adds in response that he does not see enough evidence under the principles of the Department of Justice to establish obstruction charges that would satisfy a “beyond a reasonable doubt” threshold for conviction.

Barr concludes he wants to release as much information from the report as possible, but there are some disclosure concerns involving evidence in grand jury investigations that need to be dealt with. There are likely to be some redactions in what gets out from the report, but it does suggest we’re going to see a lot of it.

So this is hardly going be the last word, not that anybody thought it would be. Mueller is essentially handing the obstruction issue over to Congress, and I imagine there will be a lot of opinions there, though House Majority Leader Nancy Pelosi (D-Calif.) has already said she doesn’t predict impeachment happening without bipartisan support. If Barr’s summary of the Mueller report is accurate, I don’t see any current Republican defenders of Trump switching sides.

Read Barr’s letter to Congress for yourself here.

from Hit & Run

Not Even the Pope Can Maintain a Monopoly: New at Reason

Religiously traumatic and militarily ominous, the fall of Constantinople in 1453 also created a crisis for the European textile industry. The problem, in a word, was alum.

To securely attach to fibers, most dyes need chemical help: a mineral salt known as a mordant, from the Latin word mordere, meaning to bite. Allowed to saturate the material before dyeing, the mordant bonds with the fibers and provides a bridge to bond with and fix the dye.

Alum, a potassium or aluminum sulfate, is the most important mordant. It “is no less necessary to dyers of wool and woolen-cloth than bread is to humankind,” wrote Vannoccio Biringuccio in his 1540 book De la Pirotechnia.

By the Middle Ages, alum mining, production, and trade were big businesses—the first international chemical industry. The typical alum operation mined alunite, a mineral found in volcanic areas, then heated the rocks in a kiln and repeatedly poured water over them until they formed a paste. The paste was then boiled and decanted to get rid of insoluble compounds, resulting in a saturated solution that crystallized into purified alum, writes Virginia Postrel.

View this article.

from Hit & Run

PETA Sics Cops on California Foie Gras Dinner: New at Reason

Earlier this week, a small salumeria in Nevada City, California, was forced to cancel a foie gras-themed dinner after PETA, the animal rights group, sicced the local police on the popular local retailer. The Ham Stand marketed the foie gras dinner on its Facebook page and elsewhere. The dinner menu, which I tracked down here, was to include a trio of foie gras appetizers and a seven-course foie gras tasting menu.

A PETA spokesperson says the group learned about the dinner and contacted the Nevada City police, leading to the dinner’s cancellation and a police visit to The Ham Stand. While Ham Stand owner Jason Jillson says he cancelled the event due to lack of interest and before the police showed up, PETA’s actions are nevertheless troubling.

California’s foie gras ban is abhorrent not because foie gras is tasty, writes Baylen Linnekin, but because it violates our rights.

View this article.

from Hit & Run

As the Mueller Report Drops, a Transparency Fight Begins

Robert MuellerThere no need to ask if we’ll see Special Counsel Robert Mueller’s report about his investigation of Russian attempts to meddle in the 2016 presidential election. We almost certainly will. The real questions are when we’ll get it, how much we’ll see of it, and who‘s going to leak it.

Because these days, sieves are jealous of the federal government. If the report claims any sort of direct connection between President Donald Trump and Russian election interference, some folks are going to want to get that into the public’s hands. And if the report does not show any connections, a different group of people is going want to leak that information out.

Unnamed Justice Department officials are telling reporters Mueller has recommended no further indictments. The letter from Attorney General Robert Barr to ranking members of Congress indicates that he found no actions by the Mueller’s special investigation to be inappropriate. Barr further noted that he may be able to advise the heads of Congress’ two judiciary committees of the conclusions reached by the report over the weekend.

That means something may leak out tomorrow or Sunday. A spokesperson from the Justice Department said the conclusions of the report (note that this isn’t the same as the report itself) may be released to the public as the same time as it is to Congress, perhaps to avoid the issue of somebody on either side of the political aisle attempting to leak a heavily spun version of the conclusions.

In any event, Democratic leaders are now immediately calling for the entire report to be released:

And of course, presidential candidates among the Democrats are lining up behind that message. The desire to release the report might not actually be a Dems vs. GOP thing however: Recall that the House of Representatives voted 420–0 on a resolution to release the report, though it’s not clear where the Senate stands. Sen. Majority Leader Mitch McConnell (R–Ky.) is a bit non-committal in his response:

He’s calling for “as much openness and transparency as possible” without actually saying he’s going to push for the full report’s release.

As for the complicated details of what happens to the report, here’s an explainer. Barr has a lot of control over how much information will be made public and even revealed to Congress and Trump himself.

But given how much of geopolitical space this entire Russian investigation has consumed ever since Trump became president, it’s easy to predict we’re going to see much—maybe even all—of the report regardless of what Barr, or Trump, Pelosi, or McConnell want. And probably sooner rather than later.

from Hit & Run

Preet Bharara’s Boy Scout Manual of “Doing Justice”

From the very first pages of his new legal memoir, former U.S. Attorney for the Southern District of New York (SDNY) Preet Bharara underscores his commitment to all that he believes is good, decent, and disappearing fast in contemporary America. Reason readers may remember him as the official who, in 2015, issued a grand jury subpoena demanding turn over “any and all identifying information” of six commenters who had criticized District Court Judge Katherine Forrest’s sentencing of Silk Road founder Ross Ulbricht. Shortly after we received the subpoena, his office issued a gag order on Reason, which prevented us from discussing the demand for records until it was lifted (more on that in a bit).

In Doing Justice, Bharara sounds like an Aaron Sorkin protagonist; a mix of Tom Cruise’s character from A Few Good Men and Atticus Finch in To Kill a Mockingbird (a version of which Sorkin is currently directing on Broadway).

Phrases and concepts like “the rule of law” and “due process” and “presumed innocent” seem to do service these days more as political slogans than as bedrock principles….It seems preferred these days to demonize one’s opponents rather than engage them, to bludgeon critics rather than win them over. There is a creeping contempt for truth and expertise….And the concept of justice seems turned on its head—holding different meaning depending on whether you are a political adversary or ally.

The law, he continues, “is not a political weapon; objective truths do exist; fair process is essential in a civilized society.” Especially in a world that seems hell-bent on burning down existing norms and institutions—one in which the president attacks a dead rival and Democratic contenders for president lobby for the destruction of the Electoral College—that all sounds comforting, as does Bharara’s insistence that it’s “an undeniable fact” that “the system is imperfect.”

Over more than 300 pages broken into four large sections (“Inquiry,” “Accusation,” “Judgment,” and “Punishment”), he tells a wide variety of stories from his time at SDNY about how the feds decide who to charge with what sorts of crimes. There are some famous cases here, such as the prosecution of Faisal Shahzad, who in 2010 tried to detonate a car bomb in Times Square; the “cannibal cop,” an NYPD officer whose conviction on conspiracy to kidnap women he fantasized about torturing and eating was overturned; and the successful cases against Sheldon Silver, speaker of the New York State Assembly, and Dean Skelos, the majority leader of the New York State Senate, on federal corruption charges.

Among the most appealing tales involves Brandon Mayfield, an American whom the FBI, on the basis of a fingerprint match, mistakenly insisted was involved in the March 2004 terrorist attacks on trains in Madrid, Spain. In a chapter called “The Problem of Confirmation Bias,” Bharara notes that the paucity of physical evidence (a single fingerprint match from a plastic bag used by the bombers) was complemented by a series of seemingly incriminating coincidences. Mayfield, a lawyer, had represented a convicted terrorist in a trial. His wife was a Muslim immigrant from Egypt and he had converted to Islam. He attended a mosque in Beaverton, Oregon that had, in Bharara’s artful phrasing, “received attention from local authorities.” “The science had spoken,” he writes. “The [fingerprint] match had been made and confirmed….Clearly the FBI had got its man.” Except they hadn’t. Even as the feds took Mayfield into custody, Spanish investigators “definitively concluded” that the fingerprint was a match with an Algerian suspect named Ouhnane Daoud. The FBI officially apologized (a rare thing) and the government eventually paid Mayfield $2 million. Bharara notes that the FBI’s internal investigation concluded that agents running the investigation became so uncritically accepting of their theory that they created a “failure to sufficiently reconsider” their suppositions even after they found no real corroborating evidence. “That is worth repeating,” says Bharara. “An innocent man was accused and forever injured because of a failure to sufficiently reconsider” (his emphasis). A cautionary tale, to be sure.

Yet Bharara’s treatment of the Reason episode reveals a fair amount of distance between his ideals and his actions while in office and suggests the blindness with which prosecutors tend to act. He writes that law enforcement people have a “God forbid” voice in their head warning them that the consequences would be catastrophic if they ignored what turned out to be legitimate threats against public officials from the president on down. “When the possibility of harm is afoot,” he writes, “prosecutors are aggressive.”

During the Silk Road trial, Judge Katherine Forrest had become “the victim of abuse and harassment,” says Bharara, including having her Social Security number and home address made public. In a bit of rhetorical slipperiness, he writes that “her critics called for SWAT teams or anthrax to be sent to her residence,” though such things never happened (my emphasis). When it comes to Reason‘s commenters, he says that a “string of threats was made,” including lines such as “it’s judges like these that should be taken out back and shot” and “send her through the wood chipper” (this last is a reference to a scene in the movie Fargo, in which criminal characters violently dispatch one of their own ilk).

Prosecutors in my office took aggressive action. They subpoenaed the records of six Reason users who posted threatening statements. They sought a boilerplate gag order…so that Reason could not prematurely and publicly discuss the subpoena before law enforcement could run down the leads, to determine whether there was any actual threat.

“Pretty routine and responsible,” he concludes, surprised that “for this, I earned the endless antipathy of the libertarian periodical.”

Well, principled opposition and criticism of government action isn’t “endless antipathy” and there are in fact good reasons to be concerned by Bharara’s version of events, which blurs some details and simply ignores the massive, nearly unconstrained power the government wields in such situations. His office filed the subpoena but forgot to attach a gag order, so we shared the subpoena with the six commenters to see if any were planning to quash it, which would affect our compliance with the demand. The gag order came a couple of days later, after our attorney had talked with an assistant U.S. attorney and explained that we had shared the subpoena with the targeted commenters (once the gag was in place, we complied fully with it).

As former assistant United States attorney and law blogger Ken White wrote as events were unfolding, there is simply no world in which what our commenters wrote came anywhere close to being “true threats” that should trigger a subpoena and gag order. Indeed, one of the commenters whose information was requested had simply written, “I hope there is a special place in hell reserved for that horrible woman” and another wrote, “I’d prefer a hellish place on Earth be reserved for her as well.” A true threat, White wrote, requires specificity about who is going to use violence, when they are going to act, and some sort of plan. “Even the one that is closest to a threat — ‘It’s judges like these that will be taken out back and shot’ isn’t a true threat,” writes White. “It lacks any of the factors that have led other courts to find that ill-wishes can be threats.” Which isn’t to say that the SDNY didn’t have the legal right to issue the subpoena and the subsequent gag order. Especially when it comes to grand jury subpoenas, the government holds all the power.

As Matt Welch and I wrote after the gag order had been lifted, “the chilling effect on Reason and our commenters is tangible. It takes time, money and resources to challenge, or even simply to comply with, such intrusive demands.” It’s simply impossible to know how many requests for user data the government has made of publications, platforms, or service providers, but in 2013 Mother Jones reported that Google, Microsoft, Facebook, Twitter, and firms received “tens of thousands” of requests each year. It’s also impossible to know how many requests have been made but can’t be discussed due to gags.

“The line between hyperbole and plausibility is hard to discern,” writes Bharara, again channeling a world-weary Sorkin protagonist. “In some lines of work you don’t want to take any chances.” That’s simply not a good enough answer, especially when confidence and trust in government institutions are at or near historic lows and the expansion of federal power after the 9/11 attacks continues apace. In a 2016 article for Reason titled “Confessions of an Ex-Prosecution,” Ken White, now a defense attorney, recalled his own time as a federal prosecutor and wrote that immense institutional and cultural pressures conspire to make federal prosecutors view consitutional “rights as a challenge, as something to be overcome to win a conviction.” Bharara’s actions toward Reason suggest a similar mindset at work despite his attestations to truth, justice, and the rule of law.

from Hit & Run

Robert Mueller’s Russia Report Is Finally Done, and We Still Know Nothing

At long last, Special Counsel Robert Mueller has completed his probe into Russian meddling in the 2016 election. And surprise! We still know nothing.

Mueller has finished the investigation and submitted a report to Attorney General William Barr, according to Politico. “I write to notify you…that special counsel Robert S. Mueller III has concluded his investigation of Russian interference in the 2016 election and related matters,” Barr wrote to Congress, adding that he’s “reviewing the report, and anticipate that I may be in a position to advise you of the special counsel’s principal conclusions as soon as this weekend,” USA Today reported.

It’s important to emphasize that there’s currently no confirmed information regarding the report’s contents.

from Hit & Run

Florida Cops Re-Arrest 26 Sex Offenders in ‘Operation Karma.’ Their Crime? Not Updating Their Car Info.

OffendersThe Polk County Sheriff’s Department in Florida is touting its successful completion of “Operation Karma,” a three-day sting in which cops arrested 26 registered sex offenders for violating various legal obligations imposed on them.

“They are apparently up to no good and we are going to hold them accountable,” Sheriff Grady Judd promises The Miami Herald.

But there is no evidence that any of the arrested people were a danger to anyone. They were not re-arrested for approaching children, or committing sex acts. In most cases, they were arrested for failing to register their vehicles with the government. This is understandable: sex offenders in Florida are required to provide the government with up-to-date information regarding their name, age, sex, height, weight, tattoos, hair color, address, email address, telephone number, social media accounts, employment information, and vehicle information. It’s probably fairly easy for a sex offender to forget to constantly re-supply necessary information.

But it’s absurd to suggest that these un-registered cars posed some kind of danger to the community. And yet The Miami Herald happily entertained this fantasy, allowing Grady and his office to essentially take a victory lap in the pages of the newspaper. The Herald also printed the mugshots of all the offenders, listed their names, and provided not only the reason for their re-arrests but information on their initial arrests. In practice, this means that many of these offenders—who range in age from 57 all the way down to 19—are being shamed for crimes they committed years and decades ago.

A bunch of mugshots of middle-aged men convicted of sex offenses against minors makes for a frightening image. But I did the math, and most of these people were in their 20s, or teens themselves, when they were first convicted.

One of the sex offenders, whom I will call J.S., was convicted of molesting a victim who was less than 12-years-old. This was in 2005, and J.S. is currently 25—meaning that at the time of the alleged crime, J.S. would have been about 12 himself. Another perpetrator, C.C., who is currently 39, was convicted in 1998 of lewd conduct toward a person under the age of 16. This man would have been about 18 in 1998. Both were re-arrested for failing to register their cars.

I don’t mean to excuse these people’s bad behavior, and I don’t know the specific details of their crimes. But the premise of the sex offender registry is that citizens deserve to know if people who live in their community are inclined to prey on their children. I am not convinced that the vast majority of these perpetrators represent any lingering threat, or that forcing them to register a new car or address with the government is defensible.

The name of this sting—”Operation Karma”—implies that the perpetrators’ bad decisions are finally catching up with them. Instead, we see the reverse: The perpetrators have already been punished, and the authorities refuse to let them move on.

from Hit & Run

Indiana Cops are Charged with Federal Civil Rights Violations for Beating a Handcuffed Man

|||Screenshot via YouTube/ProPublicaIn January 2018, a then 29-year-old Mario Guerrero Ledesma was taken into police custody in Elkhart, Indiana. During booking, Ledesma was placed into a chair and handcuffed. He then spat in the direction of Cory Newland and Joshua Titus, two officers with the Elkhart Police Department. Newland and Titus, both in their 30s, proceeded to repeatedly punch Ledesma while he was still handcuffed.

On Friday, the Department of Justice announced via a press release that Newland and Titus were being charged for the excessive force they used against Ledesma while he was handcuffed and in their care. Both men face a single count of deprivation of rights under color of law.

“Maintaining integrity in the criminal justice system by investigating and prosecuting police officers who step out of bounds with the law, while working with, training and promoting good relationships with law enforcement who operate within the law are important functions of my Office,” said U.S. Attorney Thomas L. Kirsch in the press release.

The South Bend Tribune and ProPublica obtained a video of the incident with a FOIA request.

Elkhart cops have a long history of abuse and misconduct. Newland himself had been involved in several questionable incidents prior to the beating. In one 2011 incident, Newland received a three-day suspension after attempting to contact a woman whom he arrested for having sex with her boyfriend in her car while at the park. He sent her a Facebook friend request and several text messages to see if she wanted to “hang out.”

Police Chief Ed Windbigler was suspended and eventually resigned last winter following the beating. His suspension was based in part on his failure to report the incident in a timely manner and an understating of the events that transpired. Windbigler’s tenure was also marred by poor tracking of officer misconduct and a poor record of disciplinary action. Several supervisors were promoted under Windbigler despite the Police Merit Commission not being made aware of their disciplinary records, as is protocol.

The State Police previously declined a request from the mayor to review both the beating and the Elkhart Police Department. Instead, they recommended that the mayor get the DOJ involved.

from Hit & Run