Month: March 2020

Yet more Columbus, Ohio, vice cops have been arrested on federal criminal charges. The U.S. Attorney’s Office for the Southern District of Ohio announced Tuesday that former Columbus Division of Police (CPD) Officers Steven G. Rosser and Whitney R. Lancaster have been charged with conspiring to violate others’ civil rights and conspiring to commit wire fraud.

“The indictment alleges that these two former law enforcement officers abused their badges and deprived individuals of their Constitutional rights,” said U.S. Attorney David M. DeVillers.

Rosser and Lancaster—who made their first appearance in court today—were both longtime members of the force (19 years and 31 years, respectively) who spent their last several years on the job as part of the city’s vice unit. And both officers were involved in an ill-fated, extracurricular stakeout of Columbus strip club Sirens when Stormy Daniels danced there in July 2018.

Rosser, Lancaster, and a few colleagues arrested Daniels and two Sirens workers that night on illegitimate charges. The cases against all three were quickly dismissed. A whistleblower within CPD outed the officers as having lied about being at Sirens that night as part of a prostitution and human trafficking investigation and the city had to pay a total of $500,000 to settle lawsuits from Daniels and the other two women. Rosser and Lancaster were two of six Columbus cops named in the Daniels lawsuit.

That incident is not part of the new federal indictment. But the duo’s current troubles also stem, in part, from strip club antics and allegations of wrongful arrest.

According to the feds, Rosser got in a fight with a patron at Nick’s Cabaret in 2015 and “allegedly represented that he was acting in the course and scope of his employment as a police officer during the fight and in the days that followed,” when he had the man “seized and searched without probable cause.”

“Based, in part, on a report that Rosser wrote regarding the fight, officers arrested that individual in April 2015, and he was detained at the Franklin County jail for approximately five days before the charges against him were ultimately dismissed,” according to the U.S. attorney’s office.

In another incident, this one in April 2018, Rosser, Lancaster, and some of their colleagues allegedly stopped and searched the owner of the Dollhouse strip club without probable cause.

These two allegations form the basis for the conspiracy to violate civil rights charge. The other charge comes from allegations that Rosser and Lancaster were “routinely reporting false and fraudulent special duty hours,” as the federal charges put it. The former officers allegedly billed work hours to both the Columbus Division of Police and to a special fire-related project on 29 different days in early 2018.

The charges against Rosser and Lancaster come about a year after former Columbus vice cop Andrew Mitchell was indicted on federal criminal charges.

Mitchell—who fatally shot Donna Dalton while she was trapped in his unmarked police car in 2018—was accused of depriving multiple women of their civil rights by kidnapping them and threatening them with arrest if they wouldn’t have sex with him. The case against Mitchell is still ongoing, with a jury trial date currently set for September 21, 2020.

Mitchell is also being sued in federal civil court by a Jane Doe who alleges that Mitchell kidnapped and raped her while she was handcuffed in the back of his vehicle. Doe’s complaint, filed in January, also suggests that “the harm visited upon [Doe] by Defendant Mitchell resulted from the failure of the City… to act to relieve Defendant Mitchell of his gun and badge” despite the fact that “red flags about [Mitchell] and other officers in the Vice Unit had been raised.” This failure stemmed from the city’s “policy or culture” of tolerating bad behavior from vice cops, the suit claims.

In another federal civil lawsuit, Rosser and Lancaster are being sued by the company behind now-defunct Columbus strip club Kahoots.

“In or around 2017, Defendant Rosser and Defendant Lancaster spent numerous
hours at Kahoots while in their official capacity,” states the Kahoots complaint, filed in the U.S. District Court for the Southern District of Ohio in January. It accuses Rosser and Lancaster of filing “criminal charges, without probable cause, against a number of [Kahoots] employees and/or independent contractors,” after Kahoots wouldn’t rehire a fired bouncer that Rosser allegedly wanted the club to rehire.

The complaint also notes that Rosser filed criminal charges against Kahoots’ parent company Icon Entertainment, claiming that it illegally allowed sexually oriented activity. Those charges were later dismissed. “Criminally charging Icon Entertainment was for other ulterior motives that violated its Constitutional rights,” the lawsuit claims.

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Last week, Rep. Thomas Massie (R–Ky.) became the most-hated man in Washington when he unsuccessfully tried to force a recorded vote in the House of Representatives on the $2 trillion Coronavirus Aid, Relief, and Economic Security (CARES) Act. House Speaker Nancy Pelosi (D–Calif.) and House Minority Leader Kevin McCarthy (R–Calif.) denounced him while President Donald Trump called him “a third rate Grandstander.” Seconding Trump’s characterization on Twitter, former secretary of state and Democratic presidential candidate John Kerry averred, “Congressman Massie has tested positive for being an asshole.”

In an exclusive interview with Reason, Massie, a libertarian-leaning Republican who entered Congress in 2012 with the backing of the Tea Party movement, explains his insistence that House members should have cast on-the-record votes on the single-biggest spending bill in U.S. history and calls out his critics. Referring “to John Kerry’s tweet that I tested positive for being an a-hole,” Massie tells Nick Gillespie, “I would just say at least I haven’t been symptomatic since birth.”

Brushing aside health concerns for his House colleagues, Massie notes that the Senate, whose members are on average much older than those in the House, voted in person for the spending bill. “You’re telling me that a congressman who makes $174,000 a year and has a really good healthcare plan paid for by the taxpayer can’t come to work when the Constitution compels them,” asks Massie rhetorically.

The CARES Act passed on a voice vote, meaning that there is no record of who voted in favor of or against the legislation (Massie adds bitterly that officials claim it passed unanimously). It was quickly signed into law by President Trump. Massie says that he knows several members besides himself who would have voted against it and name-checks Justin Amash (I–Mich.), Ken Buck (R–Colo.), Alex Mooney (R–W. Va.), and Andy Biggs (R–Ariz.) as others he says were solid no votes. He adds that several “Bernie bro” members recognize that the CARES Act is “cronyism on steroids” but isn’t sure they would have voted the bill down given the opportunity.

In a wide-ranging discussion about the public health and economic responses to COVID-19, Massie says that the federal government, especially the Centers for Disease Control and Prevention and the Food and Drug Administration first failed to anticipate and contain the pandemic and now continue to get in the way of allowing local and state governments and the private sector to respond effectively. “When we were attacked at Pearl Harbor, did we come up with a $2 trillion stimulus package,” he asks while criticizing the CARES Act. “Or did we declare a war on our enemies? We declared war on our enemies. Why have we not declared war on this virus? Why is our first instinct to make sure that the rich people is to keep all their riches? We need to be fighting the virus. So let’s do a Manhattan project against this virus. Let’s do a Manhattan project that comes up with a 3D-printed a ventilator, right? Let’s do a Manhattan project that figures out how to get everybody a week supply of masks.”

Despite the passage of a $2 trillion spending bill and his belief that another massive spending bill will almost certainly be introduced over the coming months, Massie still believes that the anti-spending energy that propelled the Tea Party movement and helped bring him to Congress in the first place is still alive. He notes that after he first announced his dissent to the CARES Act and his insistence that regular order be observed in voting for the legislation, he started receiving support from people around the country who respected what he was doing.

“You’ve got government telling you when to go to work and how long to work and what things you can buy and what you can’t buy. That’s central planning on steroids,” observes Massie. “When this is over… [I hope we will see] the aspects of this that saved us were free market and innovation and individuals and not the government. Maybe when this is over with, people will have less confidence in the government. A realistic view of what government’s role is.”

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A report released today by the Office of the Inspector General for the Department of Justice (OIG) warns that the problems found with the FBI’s secret warrants to wiretap former Donald Trump aide Carter Page were not an anomaly. The agency regularly makes mistakes on its applications to the Foreign Intelligence Surveillance Amendment (FISA) Court when it asks for permission to secretly snoop on Americans.

Back in December, the OIG released a blockbuster report showing that FBI agents made a number of significant omissions and errors in their four warrant applications to snoop on Page in the hopes of determining if he was being unduly influenced by Russian officials during Trump’s 2016 presidential campaign.

Inspector General Michael Horowitz was so bothered by the problems with the Page warrants that he declared that the OIG would perform a deeper audit to see if FBI officials were following proper procedures with their other secret FISA warrants.

The results of that deeper audit were published today and they don’t look good for the FBI. The OIG report shows that the agency regularly neglects proper procedures when seeking FISA warrants.

The failing point appears to be adherence to the Woods procedures, a collection of policies implemented in 2001 to make sure that every fact and detail in a warrant application to the FISA court has been carefully vetted for accuracy and to document that process. The FBI failed to properly follow those procedures with Page. Based on this new report, it looks like this failing is a common problem.

How common? The OIG reviewed 29 FISA warrant applications. In 25 of them the OIG identified errors or “inadequately supported facts.” In the other four, the OIG couldn’t find the associated Woods files—records that document that the FBI agents did due diligence to verify factual accuracy—at all. In three of those cases, the OIG is not certain whether any Woods files even exist. So there’s essentially a problem with every warrant application the OIG looked at for this audit.

The report notes that the OIG is not evaluating whether these errors or omissions were material mistakes that would or should have impacted whether the original warrants should have been granted. But that’s not the point, and that’s why this audit is so important. Because the FISA warrant process is so deliberately secretive, its oversight is limited to the FISA court, which depends on the FBI to be honest about the procedures it is supposed to follow. The FBI has a lengthy internal process to double-check warrant applications. This report notes that the internal processes have found close to 400 errors in 39 FISA warrant applications across the last five years. Inspector General Horowitz writes:

We do not have confidence that the FBI has executed its Woods Procedures in compliance with FBI policy, or that the process is working as it was intended to help achieve the “scrupulously accurate” standard for FISA applications.

Horowitz recommends that the FBI put into place a system of examining past Woods procedures compliance problems to train FBI employees to do a better job. And he recommends that the FBI perform a “physical inventory” to make sure that there’s a Woods file for every warrant application submitted to the FISA court.

After the Page warrant audit was released, FBI Director Christopher Wray released a 40-point plan to correct procedures within the department. In the FBI’s official response to today’s OIG report, FBI Associate Deputy Director Paul Abbate contends that the changes that Wray is already introducing, such as more checklists and training, will help fix these problems moving forward.

It’s deeply disturbing that the OIG found problems with every single FISA warrant application it looked at. FISA warrants exist for the purpose of catching spies and terrorists, which is why so much secrecy is permitted. But mistakes and omissions in this secretive process have huge civil liberties implications for any citizen caught in the government crosshairs. Normally, citizens can turn to the courts for relief when warrants are misapplied. But that’s not the case with FISA warrants.

Read the new OIG memo here.

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Historically, major crises have led to expansions of federal government power. As Robert Higgs documents in his classic book Crisis and Leviathan, this tends to happen even if the crisis was partly caused by misguided federal policies, and even if the federal response to the crisis has serious flaws of its own. So far, however, the coronavirus crisis seems like it might be an exception. There is some value to the decentralized nature of the response to the crisis, but also some risks. And it is far from clear that the crisis won’t ultimately result in a major expansion of federal power.

As Walter Olson documents in a Wall Street Journal op ed, so far it is state governments that have taken the lead in combating the virus. The “shut down” and “stay at home” orders that have affected millions of Americans are almost entirely issued by state and local authorities. These have also—so far—taken the lead in trying to boost the capacity of the health care system to handle the surge in coronavirus cases.

The federal government’s coronavirus “social distancing” guidelines, by contrast, are largely advisory. With the important exception of draconian new restrictions on international travel and migration, the lion’s share of coronavirus-related regulations affecting ordinary citizens are the work of state and local authorities. Donald Trump may have high TV ratings, but the actions of governors like Gavin Newsom (California), Andrew Cuomo (New York), and Mike DeWine (Ohio) are having a much bigger on-the-ground impact.

There is some value to this relatively decentralized approach to combating the virus. The US is a large and diverse nation, and it is unlikely that a single “one-size-fits-all” set of social distancing rules can work equally well everywhere. In addition, state-by-state experimentation with different approaches can increase our still dangerously limited knowledge of which policies are the most effective.

Moreover, if one policymaker screws up, his or her errors are less likely to have a catastrophic effect on the whole nation.  Here, there is a tension in the views of those who both advocate a much more centralized policy but also (correctly in my view) believe that Donald Trump is often malicious or incompetent. The worse he is, the less we should want to see even more power concentrated in his hands.

As Olson points out, giving the states the lead role on public health issues is not a new idea, but one  embedded in the original meaning of the Constitution. The Founding generation regarded most public health issues as primarily a state responsibility beyond the scope of the federal government’s enumerated powers. In his landmark 1824 opinion  in Gibbons v. Ogden, Supreme Court Chief Justice John Marshall—who generally advocated a broad conception of federal power by the standards of the time—listed “Inspection laws, quarantine laws, [and] health laws of every description” as part of “that immense mass of legislation which embraces everything within the territory of a State not surrendered to the General Government.”

There is, in fact, a long history of state and local governments taking the lead in battling the spread of contagious disease. During the 1918-19 flu pandemic, state and local restrictions were the primary means of inhibiting the spread of the virus, while the federal government did very little.

While there is much to be said for state-led efforts, they also have at least two serious limitations in the current crisis. First, the coronavirus is—apparently—highly contagious and can spread quickly from one area to another. This means that a state or locality with overly lax policies can potentially “infect” its neighbors.

I lack the epidemiological expertise to assess the extent of this risk; it may vary from place to place. It is also possible that it can be mitigated by coordination between neighboring jurisdictions. Still, the possibility of “externality” effects—in which one state’s policies harm its neighbors—is a standard critique of decentralization. And the spread of a deadly disease is a particularly severe example of this problem, one that may be more difficult to address than many other types of  externalities.

Second, one of the major checks on bad state and local policies is the ability of people to “vote with their feet” against them by moving elsewhere. Foot voting enables some people to escape harmful or oppressive government policies, and also gives jurisdictions incentives to avoid  them in the first place, for fear of losing key parts of their tax base. In most situations, foot voting is one of the biggest advantages of political decentralization.

But its effectiveness is greatly reduced in our current situation situation. Though some states have enacted  quarantine requirements on people entering from epidemic hot sports, interstate migration has not—so far—actually been banned. But even aside from legal restrictions, interstate movement in the midst of a pandemic will be extremely difficult, at best. Where it remains feasible, it could potentially risk spreading the disease further—at least until we have enough testing capacity to effectively screen would-be movers (and others).

Hopefully,  foot voting will become safer more feasible again, as testing improves, and parts of the economy begin to recover. At the moment, however, it is nowhere near as effective as it would need to be to provide a meaningful constraint on ill-advised state and local policies. That includes both policies that are overly lax—and thereby allow the virus to spread—and those that are overly restrictive, and thereby cause more harm to liberty, the economy, and social welfare than can be justified by their health benefits.

Externalities and other similar problems might yet lead to a greater centralization of power during the crisis. Centralization could occur even in some areas where it isn’t really needed, because public opinion might prefer a seemingly strong federal hand on the tiller in the midst of a crisis. Political ignorance is widespread, and many voters may be unwilling or unable to  objectively evaluate the effectiveness of either federal or state policies. For many, the default response to a terribly dangerous situation might be to clamor for large-scale intervention of the largest and most powerful government available.

It is also worth remembering that the massive $2 trillion “stimulus” bill passed by Congress has already caused a huge increase in federal spending, and made many more people, industries, and subnational governments more dependent on federal largesse. Much of what is in the bill may be a justified emergency measure. But that spigot—like other expansions of government power in the midst of crisis—may not be easy to cut off even after the emergency ends.

In sum, the coronavirus crisis has so far featured states taking the lead in crafting the US response. This federalist approach has some real value. But it has downsides, as well. It is too early to tell how severe those flaws are. Despite the current starring role of state governments, it is also too early to rule out the possibility that the coronavirus crisis will ultimately result in a major expansion of federal government power.

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