Welcome to Prof. Mark Movsesian (St. John’s University School of Law)

I’m delighted to report that Prof. Mark Movsesian will be joining us as a co-blogger. He is an expert on law and religion, both on the law and the religion sides, and has also written and taught about contract law and about international and comparative law. He is the cofounder of the Law & Religion Forum blog (where he’ll continue to blog), and the cohost of the Legal Spirits podcast. I very much look forward to his contributions!

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Sanders Wants More Supreme Court Justices Like Sotomayor. That’s Not a Bad Idea.

What sort of Supreme Court justices would Sen. Bernie Sanders (I–Vt.) nominate if he is elected president? Speaking recently to the editorial board of The New York Times, the Democratic hopeful offered a glimpse of his thinking.

“The promises that I’ve made so far is that I will never appoint anybody who was not 100 percent Roe v. Wade,” Sanders said. He added that anyone he picks would have to be “prepared to stand up to the power of corporate interests.”

Sanders was otherwise mostly mum on specifics. Would he ever release his own list of Supreme Court candidates, like Donald Trump did in 2016? “It’s not a bad idea,” Sanders acknowledged. But he’s “got to win the nomination first.”

Sanders has offered more specifics on other occasions. On Twitter, for example, Sanders once declared that he’d “like more justices like…Sonia Sotomayor.”

That’s not a bad idea, either. Sotomayor is the rare left-leaning justice who counts both progressives and libertarians among her admirers.

To be clear, Sotomayor is far from an ideal jurist. She’s been particularly disappointing on the Fifth Amendment. But her record on the Fourth Amendment is admirable. During her 11 years on the Court, Sotomayor has distinguished herself as both a sharp critic of police and prosecutorial misconduct and a staunch defender of the right to be free from unreasonable searches and seizures.

Unlike her liberal colleague Justice Stephen Breyer, who routinely votes in deference to law enforcement, Sotomayor is skilled at dissecting the government’s sickly rationales for patently unconstitutional police behavior.

Consider the 2015 oral arguments in Rodriguez v. United States. Sotomayor neatly sliced and diced the Justice Department lawyer after he insisted that the police should be granted broad leeway to use drug-sniffing dogs during traffic stops. “We can’t keep bending the Fourth Amendment to the resources of law enforcement,” Sotomayor observed. “What you’re proposing,” she informed the government lawyer, is an approach that’s “purely to help the police get more criminals, yes. But then the Fourth Amendment becomes a useless piece of paper.”

Similarly, in her 2016 dissent in Utah v. Strieff, Sotomayor slashed at her colleagues in the majority for holding that the Constitution did not prohibit law enforcement from using evidence obtained during an illegal traffic stop because the man who was stopped happened to be the subject of an outstanding traffic warrant.

“This case allows the police to stop you on the street, demand your identification, and check it for outstanding traffic warrants—even if you are doing nothing wrong,” Sotomayor seethed in dissent. “If the officer discovers a warrant for a fine you forgot to pay, courts will now excuse his illegal stop and will admit into evidence anything he happens to find by searching you after arresting you on the warrant.” As far as she was concerned, “the Fourth Amendment should prohibit, not permit, such [police] misconduct.”

Bernie Sanders, the self-described socialist who has said nice things about bread lines and communist dictatorships, has embraced many truly bad ideas over the years. Nominating a few more justices like Sonia Sotomayor is not one of them.

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Welcome to Prof. Mark Movsesian (St. John’s)!

I’m delighted to report that Prof. Mark Movsesian (St. John’s) is joining us as a co-blogger. Mark is especially knowledgeable on law and religion, including (unlike me) the religion side and not just the law side. He is also the cohost of the Legal Spirits podcast, and coauthor of the Law & Religion Forum, where he will of course continue to post as well. Welcome, Mark!

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Could We Be Heading Back Towards A Gold Standard?

Could We Be Heading Back Towards A Gold Standard?

Authored by Lawrence Thomas via GoldTelegraph.com,

For anyone following the gold industry, a significant development that many in the finance industry may not be paying close attention to is the emergence of Judy Shelton within the Federal Reserve. 

President Trump recently nominated Judy Shelton and Christopher Waller to fill the two vacancies on the Federal Reserve Board of Governors. If confirmed, Mrs. Shelton has publicly advocated for lower rates and also the reintroduction of a gold standard. The president has openly criticized Fed Chairman Jerome Powell about not lowering interest rates quickly enough. His four-year tenure as Fed chair expires in February 2022.

This is a very interesting development because one can only assume if Trump is reelected, he could potentially appoint Mrs. Shelton as the next chairman. Which logically, makes a lot of sense as Trump continues his hard negotiation with China on fair trade.

 “When governments manipulate exchange rates to affect currency markets, they undermine the honest efforts of countries that wish to compete fairly in the global marketplace. Supply and demand are distorted by artificial prices conveyed through contrived exchange rates. Businesses fail as legitimately earned profits become currency losses,” she wrote in a February 2017 opinion article in The Wall Street Journal.

With the insanity of negative interest rates starting to come to fruition across many economies, naturally, the reintroduction of gold into monetary policy does not seem unreasonable. The primary objective of money is typically to be a medium of exchange, unit of account, but also a store of value. Gold has been doing this for thousands of years as Judy understands:

“Forget hawks and doves – this job needs a woodpecker, someone who’ll hammer away at the importance of stable money. The goal: not a strong dollar or a weak dollar, but a dependable dollar,” she wrote in an October 2017 opinion piece in the Journal.

The Fed should focus on stable money as a key factor in economic performance. Given that central banks today are the world’s biggest currency manipulators, it’s imperative that the next chairman prioritize the integrity of the dollar.”

Secondly, President Trump understands the gold market and its importance of it being a stabilizer in turbulent economic times.  He has publicly tweeted (see below) about gold which can confirm these claims:

Economically, maybe Trump assumes normalized interest rates are not coming back due to the endless money printing that took place after 2008. The world of negative yielding debt is beginning to be a natural reality which will continually debase  currencies globally and one of the only things to hedge this debasement is of course, gold. Shelton warned in 2019:

“Perhaps one of our elected representatives on Capitol Hill can explain to [The Fed] that when the low-grade fever of perpetual inflation becomes a full-blown economic malady – when the next financial bubble bursts with horrible consequences for the real economy – average Americans will pay the biggest price.

There continues to be record central bank gold buying, negative interest rates around the world, unprecedented public and private debt and an economic setting where there are deep trade disputes (China and U.S phase one deal is not a resolution to the trade war)  to go alongside geopolitical tensions  which clearly signifies that the world is in unchartered waters.

In these uncharted waters look for governments to slowly revert back to the oldest form of money, gold.


Tyler Durden

Mon, 01/27/2020 – 13:20

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Despite Ugly, Tailing 5Y Auciton, 2s5s Curve Inverts

Despite Ugly, Tailing 5Y Auciton, 2s5s Curve Inverts

After a slightly tailing 2Y auction priced earlier today as yields tumbled across the curve, the lack of motivated auction buyers was that much more on display moments ago when the Fed sold $41BN in 5Y paper, at a high yield of 1.448%, the lowest since August 2019, but also the biggest tail to the 1.437% When Issued since December 2018, when the tail was 2.3bps compared to today’s 1.1%bps.

It wasn’t just the tail however, with the Bid to Cover today sliding from 2.49 to 2.33, below the six auction average of 2.41 and the lowest since September.

The internals were also on the ugly side with Indirects taking down 60.0%, a drop from December’s 62.4% , if just below the 60.8% recent average. And with Dealers taking down a substantial 26.1%, the highest since September, it left Directs with just 13.9% of the auction, below the 14.6% average.

Overall, an uglier auction than this morning’s sale of $40BN in 2Y paper, if still solid enough to keep the 2s5s curve inverted on the day, the first time the 2s5s has traded below 0% since early December.


Tyler Durden

Mon, 01/27/2020 – 13:13

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“Zero Cooperation”: Prince Andrew Ducks FBI Investigation Into Epstein Co-Conspirators

“Zero Cooperation”: Prince Andrew Ducks FBI Investigation Into Epstein Co-Conspirators

The FBI and federal prosecutors in New York say Prince Andrew has been uncooperative with their ongoing investigation into Jeffrey Epstein’s co-conspirators, according to AP, citing US Attorney Geoffrey Berman of the Southern District of New York.

In a Monday statement outside Epstein’s East 71st Street mansion on the Upper East side of Manhattan, Berman said that Andrew has yet to respond despite his public offer to cooperate in the investigation.

To date, Prince Andrew has provided zero cooperation,” said Berman, appearing with members of nonprofit victim services agency Safe Horizon.

As we reported in November, attorneys for Epstein accusers have demanded Andrew’s participation in the investigation.

“It’s great that he’s stepping away from his royal duties, but it’s really not about that — it’s about justice and accountability for the victims, so it’s important that he says he’s going to cooperate with law enforcement,” said victims attorney Lisa Bloom.

Bloom said Prince Andrew should answer questions from all the accusers’ attorneys — in particular the attorney of Virginia Roberts Giuffre, who alleges she was coerced into having sex with Prince Andrew on three separate occasions when she was 17.

Giuffre has offered a detailed account of a March 10, 2001, encounter in which she said she danced with the prince at Tramp nightclub in London before he had sex with her.

Guiffre publicly released a photograph of her and Prince Andrew in which he has his arm around her waist, which she says was taken at the house of Ghislaine Maxwell, who an ex-girlfriend of Epstein’s who has been accused of acting as his “fixer” at the time. –Business Insider

Gloria Allred, who also represents Epstein accusers, urged the prince to provide any evidence that might help victims seek justice “without conditions and without delay,” including emails, texts and calendars – adding that the prince’s staff should also provide relevant information, according to the BBC.

Allred added that if the prince didn’t offer information voluntarily, he might be asked to speak under oath in a criminal investigation into potential Epstein co-conspirators, along with civil lawsuits brought by Epstein’s accusers.

“I haven’t made a determination yet as to … whether we will need to take Prince Andrew’s deposition,” said Allred, adding “But I’m saying he should provide it in any civil case as well, where his testimony might be relevant.

What’s with royals and pedophilia?


Tyler Durden

Mon, 01/27/2020 – 13:00

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Trend Breaks

Trend Breaks

Authored by Sven Henrich via NorthmanTrader.com,

It’s that time of the year again when another exuberant rally gets too cocky, produces massive overbought readings as everybody is trampling long into stocks, is ignoring all the warning signs and then some outside event pulls the plug. Soon the downside will be again blamed on the algos that are never at fault for pushing stocks to extremes to the upside and soon all hopes will rest again on the Fed to prevent any downside getting too scary.

The Fed will have that opportunity again this week and can once again take cover behind the phrase “uncertainty” to stay “accommodative”.

Problem of course is that this time that the apparent trigger, the coronavirus, may turn into something more serious.

If it does then the Fed will be severely tested for one has to wonder if they left themselves exposed having already aggressively intervened:

Oh the hubris of it all. What if the Fed made a major mistake having been way to accommodative, exacerbating asset prices to the record tune of 157% market cap to GDP right in front of a major crisis? What if growth continues to slow as the bond market is suggesting? What if, gosh, it’s not different this time?

We can’t know the answers to these questions yet, but we can observe.

One of these observations points to a similarity in the monthly $NDX chart compared to the final rally run in 2007 versus now:

That final exuberant rally that ignored all warning sings, the final rally that makes bears look stupid and bulls exuberant.

Again, too early to tell, but the similarity is there.

What can be said with certainty for now is that the uptrends since the Fed gunned markets higher with liquidity in October have been broken. On all the major index charts.

Yields broke their trend, banks broke their trend, $SPX broke its trend, $NDX broke its trend. $VIX broke its downtrend.

And we can observe that the $NDX sell signal has indeed produced downside:

Trend breaks often times precipitate larger drops. They don’t exclude the possibility of further rallies or even new highs on occasion. After all markets are becoming short term oversold and the Fed will take center stage this week and lots more earnings are coming out.

But these trend breaks now also inform resistance for future rallies.

Markets overshot to the upside and now they are paying the price and are at risk of having made a sizable short term top. Two down days not a bear market make, but every top starts somewhere.

Just a week ago people were gleefully calling for $DJIA 30,000. Suddenly the $DJIA is nearly 1,000 points lower. Wall Street kept telling people to buy. Nobody said to sell.

And poof, most of the gains in 2020 are gone with several indices now running negative on the year:

Whether this all turns into just a short term correction or something more meaningful remains to be seen. I’ve questioned the sustainability of these price extensions above the underlying size of the economy:

Especially in context of a broader earnings picture that appears to have favored financial engineering via buybacks and a central bank included TINA effects versus actual substance:

For now we have technical trend breaks on a highly valued market with suddenly a lot more uncertainty ahead then just a week ago. Things have changed.

*  *  *

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Tyler Durden

Mon, 01/27/2020 – 12:45

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Scientist Insists 44,000 Already Infected In Wuhan, Calls For “Draconian Measures” To Stop Spread

Scientist Calls For “Draconian Measures” To Stop Virus In Hong Kong, Insists 44,000 Already Infected In Wuhan

Now that health officials in China have admitted that patients infected with the novel coronavirus often become contagious long before symptoms emerge, and Canada may or may not have just confirmed its first case of human-to-human transmission, health officials around the world are finally listening to some of the experts who warned about the virus’s lethal potential (and were rewarded with accusations of being an alarmist).

And nowhere is that advice being followed more closely than Hong Kong, where the city government has already inspired riots after considering using a new public housing project as a quarantine for virus victims.

The pushback to that plan was surprising and appears to be an isolated incident. Because University of Hong Kong academics are urging the city’s government to embrace “draconian” measures to stop history from repeating itself.

Hong Kong was rocked by SARS 17 years ago, when the virus – one of seven coronavirus strains (a family that also includes nCoV and MERS) – tore through the city’s financial district, causing 300 deaths, according to the SCMP.

As we mentioned earlier, the dean of HKU’s med school revealed research during a presser on Monday showing that the virus had already infected nearly 44,000 people in Wuhan. Meanwhile, Professor Neil Ferguson, at least the second UK academic to publicly share his projections, said over the weekend that 100,000 people could already be infected with the virus around the world, according to the Guardian.

Lead researcher and dean of HKU’s faculty of medicine Gabriel Leung said their models indicated that the number of cases in China would double in 6.2 days. Officials around the world have only confirmed 2901 cases so far, while 2839 of those are in Mainland China.

Leung’s remarks were captured in a twitter thread.

Among other things, Leung said sustained human-to-human transmission has already been proven.

“We have to be prepared, that this particular epidemic may be about to become a global epidemic,” he said.

Though Leung warned that additional measures to contain the virus could improve projections, the team’s model predicted the number of infections in five mainland megacities – Beijing, Shanghai, Guangzhou, Shenzhen and Chongqing – would peak between late April and early May, and at the peak of the pandemic, as many as 150,000 new cases could be confirmed every day in Chongqing – China’s At the height of the epidemic, as many as 150,000 new cases would be confirmed every day in Chongqing alonebecause of its large population and intense travel volume with Wuhan.

Since Leung sits on Carrie Lam’s advisory committee, he said he would encourage “draconian” steps to stop the virus, including a travel lockdown, cancellation of all public gatherings, and forcing all companies to come up with work-from-home arrangements.

“Substantial, draconian measures limiting population mobility should be taken immediately,” he said, calling for the cancellation of mass gatherings, along with school closures and work-from-home arrangements.

Possibly with an eye toward Beijing, Leung called on the government to take “one, two, three or more steps” to broaden the scope of the border closure.

Before we go, it’s time for an admittedly macabre round of ‘point-counterpoint’. Some experts claim the virus’s lethal capacity is being exaggerated by the fact that there are probably hundreds or maybe thousands of Chinese who got the virus, but managed to tough it out on their own instead of seeking medical care. Others warn that at least some who were turned away from hospitals, or chose to never seek treatment out of fear, might have met an unfortunate fate.

Point: “There are many many more thousands of people in China who have gotten sick, just stayed home, gotten rest under comfy blankets, got better after a week, and are just fine. But they aren’t counted because they didn’t go to the hospital. This inflates the lethality rate.”

Counterpoint: “There are many more Chinese rotting in their apartments who died weeks ago but haven’t been counted”

Of course, nothing would put the market’s mind at ease like a vaccine. That’s why drug stocks have surged on Monday. In the meantime, some doctors are treating the illness with retrovirals used to combat AIDS. Still, experts are estimating a vaccine could take one-to-three months to develop.

HK wouldn’t be alone in taking extreme measures to stop the virus. Taiwan over the weekend announced it would bar all visitors from mainland China.

At one point, a guest who appeared on CNBC Monday said investors should take the figures released by China and multiply those numbers by ten to arrive at the true statistics.

Speaking of draconian measures, the Philippines has taken the most drastic step so far: According to media reports, it’s preparing to deport 500 Chinese to try and stop the virus’s spread.

Now, imagine if Trump tried to do something like evicting all Chinese nationals traveling in the US…


Tyler Durden

Mon, 01/27/2020 – 12:25

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Pennsylvania Could Shut Down Cyber Charter Schools, Eliminating Choice for 35,000 Students

When Stefaine D’Amico’s son Bobby became a target for bullies at school, she saw how the boy changed. He stopped enjoying school, and his progress faltered. He became emotionally withdrawn. Worst of all, the teachers and administrators at Bobby’s school didn’t seem capable of dealing with the situation.

“He slid back. His whole focus was the social [aspect]—you know, ‘Are these kids gonna accept me? Who is going to tease me today?'” D’Amico recalls. “As a parent, your hands are tied, and the school district isn’t helping, you just feel so frustrated.”

More than six years ago, before Bobby entered the sixth grade, D’Amico made the choice to pull her son out of the middle school in Marple-Newtown School District and enroll him in one of Pennsylvania’s so-called cyber charter schools—online education programs where students from any of the state’s 500 traditional public school districts can complete coursework and earn a high school diploma from home. It has made all the difference, D’Amico says. Bobby is now a high school senior, eager to graduate and head off to college to study filmmaking.

But Bobby might be one of the state’s last graduates from a cyber charter school, if one state lawmaker has his way. Under the terms of a bill that’s working its way through the state House this month, all of Pennsylvania’s cyber charter schools could be shuttered, leaving their 35,000 students scrambling to find limited spaces in brick-and-mortar charter schools and possibly forcing them to return to the traditional school districts they fled. That would include Bobby’s two younger siblings, both of whom are following his path through the Agora Cyber Charter School.

State Rep. Curt Sonney (R–Erie), chairman of the House Education Committee and the bill’s sponsor, says his goal is to “eliminate the tension between school districts and cyber charter schools.”

It would indeed do that—and more.

“It would force parents and students to go back to the districts that have already failed them,” says Ana Myers, executive director of the Pennsylvania Coalition of Public Charter Schools, which lobbies on behalf of both brick-and-mortar and cyber charters.

Sonney’s proposal is extreme, but it’s part of a bipartisan push to restrict school choice in Pennsylvania. State lawmakers and Gov. Tom Wolf are taking steps to restrict access to charter schools or otherwise hobble charter school’s budgets. Even if the end result is less dramatic than the prospect of throwing 35,000 kids out of the schools they currently attend, the crackdown on choice is likely to leave more kids in situations like the one Bobby escaped.

Pennsylvania legalized charter schools in 1997, and cyber charters followed in 2004. Now roughly one out of every 11 public school students in Pennsylvania attends a charter school. In Philadelphia, the state’s biggest school district, charter schools now educate more than a third of the city’s students—with 30,000 more on waiting lists. Cyber charters account for about 20 percent of overall charter school enrollment; because brick-and-mortar charters are clustered mostly in the cities and densely populated suburbs, cyber charters are the only available charter school option in many parts of Pennsylvania.

This proliferation of choices has seen some missteps. Most prominently, the CEO of one cyber charter school was sentenced to 20 months in prison after he got caught skimming millions of dollars from the school. A handful of charter schools have been shut down due to poor performance, and studies show that cyber charters, in particular, may need more scrutiny to ensure they are worthwhile alternatives.

There is also a persistent argument, pushed by lobbyists for traditional public schools, that charter schools are somehow shortchanging students who remain in non-charter schools. That’s the “tension” that Sonney is talking about.

Each traditional public school in Pennsylvania is funded with a combination of state and local tax dollars. How much comes from the state and how much from the school district varies from place to place, in accordance with a complex formula determined by the state Department of Education. When a student leaves a traditional public school to attend a charter school—physical or cyber—the portion of that student’s tuition that’s paid by the local school district follows the kid to the charter school. The school district retains the state’s portion.

As a result, charter schools get about 70 percent, on average, of the per-pupil funding that traditional public schools do. The traditional schools still complain, because fixed overhead costs don’t necessarily decline when students leave, and they are left with fewer total dollars (but also fewer kids to educate). The argument is somewhat disingenuous: If you don’t want students leaving, give them reasons to stay. That’s how competition is supposed to work.

“If districts want to stop the mass exodus of students, they have to look inside themselves and figure out why families are unhappy with the education they are getting,” says Meyers.

Rather than compete for students, it seems like traditional public schools prefer to ask the government for favors. That’s one way to understand Sonney’s bill, which would replace the marketplace of cyber charter schools with a mandate that every school district offer online classes for students who want them.

That’s also a good lens through which to view Gov. Tom Wolf’s executive order last year requiring charter schools to cover the administrative costs that occur when the state Department of Education must settle a funding dispute between a school district and a charter school. That’s no small thing: In the 2018–19 school year, more than 13,000 such disputes were lodged with the department.

Forcing charter schools to cover those costs, Wolf said in September when he unveiled a series of charter school reform measures, “will allow more money to go where it should go, tax dollars toward educating our children.”

That may sound great. But a subsequent open records request filed by the Commonwealth Foundation, a pro-market think tank, found that every single one of those 13,000-plus funding disputes launched the previous year was decided in the charter school’s favor. That leaves an obvious conclusion: School districts are deliberately shortchanging charter schools.

Indeed, the superintendent of the Pottsville School District told The Philadelphia Inquirer that his district never pays its local charter school. But now charter schools have to pay the state to cover the cost of getting what obstinate school officials owe them.

“Making charter schools pay when school districts break the law isn’t about ‘fairness’ or ‘accountability’ or any of the other slogans the Wolf administration uses,” says Nathan Benefield, vice president of the Commonwealth Foundation. “By favoring one type of public school over another, Gov. Wolf is working to undermine parental choice—prioritizing money over kids.”

Wolf has pushed through several other charter school regulations via executive order—after legislators spent years trying, and failing, to enact a comprehensive rewrite of Pennsylvania’s charter school laws. Some of these are welcome changes aimed at increasing transparency and accountability when it comes to charter school performance, finances, and enrollment processes. Charter schools are public schools, after all, and they should meet the same standards. And the state’s charter school laws are due for an update after two decades of seeing what works and what doesn’t.

But that logic never seems to flow in the other direction. Many of Wolf’s proposals will make it more difficult for new charter schools to open, while doing nothing to fix persistently bad district schools except forcing more students to attend them. Toward that end, he’s also asked the state legislature to pass a new cap on charter school enrollment, despite the long waiting lists that already exist in many places.

The current push also reflects a four-year-long Stanford study that found “students enrolled in Pennsylvania online charter schools post significantly weaker growth” than those enrolled in traditional public schools and brick-and-mortar charters. (The study also found that urban charter schools outperform traditional public schools, though the reverse is true in suburban and rural areas, and that students from families below the poverty line gain the most by switching to charter schools. So there is a lot of nuance to the report.) D’Amico concedes that cyber charter schools might not be the best choice for everyone—but few things are. Eliminating them, on the other hand, would wipe out an option that is working for her own family.

“The general numbers mean absolutely nothing to me,” she says. “Is my child getting the best education? Is my child getting the education that fits my child’s needs?”

The state shouldn’t deny that choice to students and families seeking alternative educational options, either directly—by capping enrollment or abolishing cyber charter schools—or indirectly, by making it more expensive and difficult to operate a charter school.

“They’re trying to force us to put our children in the district school,” says D’Amico. “That’s not fair.”

Reason is celebrating National School Choice Week. This story is part of a series that will be published over the course of the week highlighting different K-12 education options available to children and families.

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Journalists Might Be Felons for Publishing Leaked Governmental “Predecisional Information”

In U.S. v. Blaszczak, decided four weeks ago, a Second Circuit panel concluded (by a 2-1 vote) that a federal agency “has a ‘property right in keeping confidential and making exclusive use’ of its nonpublic predecisional information.” Because of this, the panel held that a federal employee’s leak of the information—and the receipt of that information by someone cooperating with the employee—could be felony wire fraud and conversion of government property.

In Blaszczak, the people dealing with the employee were using this information to trade stocks, and some of the securities charges on which they were convicted were focused on that. But the wire fraud and conversion charges did not require a showing of such illegal trading—the parties were convicted for the “theft” of government information quite apart from how the information is used.

Say then that investigative journalists have a relationship with a federal government employee, and cooperate with the employee to get a leak of confidential government “predecisional information” about the government’s planned policy changes. Under the panel’s theory, they too would be guilty of felony conversion of federal property and wire fraud.

Indeed, even if they just get the leak out of the blue, they would likely still be guilty of felony conversion, so long as they knew the leak was of confidential information. In such a situation, they would have “knowingly convert[ed] to [their] use … any … thing of value of the United States,” or “receive[d] … or retain[ed] [such a thing of value] with intent to convert it to [their] use or gain, knowing it to have been embezzled, stolen, purloined or converted.” Participation in the leak itself isn’t required; knowing use of the leaked information suffices. (If the “property” could somehow be valued at under $1000, such behavior would be just a misdemeanor, but I assume that under the federal-predecisional-information-as-property theory that the panel majority adopted, most leaked information would be valued at more than that.)

Nor would journalists have an obvious First Amendment defense that others don’t possess. As I’ve canvassed in my Freedom of the Press as an Industry, or for the Press as a Technology? From the Framing to Today article, the First Amendment generally doesn’t give institutional media more protection than other speakers.

Even if a court could distinguish use of government property for public speech purposes (whether by the media or other speakers) from such use for private purposes, the statutes on which the panel relies draw no such distinction. And the panel’s reasoning as to property draws no such distinction, either: If the predecisional information is federal government property, and using that information for one purpose (selling stocks) is conversion of that property, then using that information for another purpose (selling newspapers) would be as well. Certainly journalists (or independent bloggers or other commentators) have no assurance that they would escape criminal liability under the panel’s theory.

The National Association of Criminal Defense Lawyers amicus brief in the case puts the matter well:

Consider a government employee, believing the government is about to enact a misguided policy, who makes an interstate telephone call to a journalist and relays “confidential” information about the planned policy. Assume the employee does so in the hope that the journalist’s newspaper will publish the article, that the publication will lead to public pressure, and that the pressure will lead the government to reverse its misguided decision. Further, assume the information will help the newspaper increase its circulation. On the prosecution’s theory in this case, the employee, the journalist, and the newspaper would be well advised to consult with counsel before proceeding, for this conduct would satisfy each element of the fraud and theft offenses for which the defendants were convicted.

It would violate Section 641, as charged in this case, because on the prosecution’s theory all “confidential” information is the government’s property, the information was disclosed without permission, the disclosure was intended to deny the government the “use and benefit” of the property in precisely the manner identified by the prosecution here—undermining the government’s ability to implement a chosen policy—and the information was worth more than $1,000 to the ultimate recipient, the newspaper.

On the prosecution’s theory, this conduct would also violate the fraud statutes, for similar reasons: It would constitute a scheme to deprive the government of what the prosecution contends is government “property”—that is, the information about regulatory plans—and to convert that property to one’s own use (that is, to run a profitable newspaper story).

The prosecution may protest that it would never bring such a case. But the vibrant public discourse guaranteed by the First Amendment requires greater protection than a prosecutor’s indulgence. See McDonnell, 136 S. Ct. at 2372-2373 (“[W]e cannot construe a criminal statute on the assumption that the Government will ‘use it responsibly.'” (quoting United States v. Stevens, 559 U.S. 460, 480 (2010))). When, as here, “the most sweeping reading of [a] statute would fundamentally upset” constitutional constraints on federal prosecution, it “gives … serious reason to doubt the Government’s expansive reading … and calls for [courts] to interpret the statute more narrowly.” Bond v. United States, 572 U.S. 844, 866 (2014).

Of course, information is sometimes treated as property, and indeed business confidential information has been so treated in related areas (as in Carpenter v. U.S. (1987)); that too raises potential First Amendment problems for business journalists whose articles are often based on leaks from within a company.

But the First Amendment concerns become even greater when the information has to do with the inner workings of the government, and not just of a private business. And the case for treating the information as property becomes weaker; to quote again the NACDL brief,

To be sure, the Supreme Court in Carpenter, on which the government relied heavily below, affirmed a fraud conviction based on a scheme to steal and trade on “confidential business information.” But it was critical in Carpenter that the scheme involved a very particular business—the Wall Street Journal—and a very particular kind of information—the planned content of future columns. The Journal obviously held much more than a “regulatory” interest in its forthcoming columns. These columns were, in the Carpenter Court’s words, the Journal’s “stock in trade.” It requires no great leap of logic to find that a newspaper has a property interest in the only thing it sells—the particular stories it plans to print—and that misappropriating such valuable, confidential information is a form of fraud.

Here, by contrast, the information about future regulatory actions is not something the government ever sells, much less its entire stock in trade. And the government can identify only hypothetical regulatory injury from disclosure of the information, unlike the obvious commercial loss at issue in Carpenter....

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