In her first economic policy speech as the 2024 Democratic presidential nominee, Kamala Harris rightly criticized Donald Trump for favoring steep tariffs, saying her Republican opponent "wants to impose what is, in effect, a national sales tax on everyday products and basic necessities that we import from other countries." But in the same speech, Harris pitched a half-baked idea that is just as economically dubious, promising to crack down on "price gouging" by the grocery industry.

That proposal is so misguided that it provoked undisguised skepticism from mainstream news outlets such as CNN, the Associated Press, The New York Times, and The Washington Post, along with criticism by Democratic economists. It showed that Harris joins Trump in pushing populist prescriptions that would hurt consumers in the name of sticking it to supposed economic villains.

"If your opponent claims you're a 'communist,'" Post columnist Catherine Rampell suggested, "maybe don't start with an economic agenda that can (accurately) be labeled as federal price controls." Harvard economist Jason Furman, who chaired President Barack Obama's Council of Economic Advisers, was equally scathing.

"This is not sensible policy, and I think the biggest hope is that it ends up being a lot of rhetoric and no reality," Furman told the Times. "There's no upside here, and there is some downside."

That downside stems from any attempt to override market signals by dictating prices. High prices allocate goods to consumers who derive the greatest value from them, encourage producers to expand supply, and spur competition that helps bring prices down.

Without those signals, you get hoarding and shortages. This is not some airy-fairy theory; it reflects bitter experience since ancient times with interventions like the one Harris proposes.

Consider what happened when President Richard Nixon imposed wage and price controls in the 1970s. "Ranchers stopped shipping their cattle to the market, farmers drowned their chickens, and consumers emptied the shelves of supermarkets," Daniel Yergin and Joseph Stanislaw note in their 1998 book on the rise of free markets.

Or consider what happened more recently with eggs. Thanks to avian flu, Furman noted, "egg prices went up last year" because "there weren't as many eggs," but the high prices encouraged "more egg production." If federal regulators had tried to suppress egg prices, they would have short-circuited that market response.

Harris, of course, says she would target only unjustified price increases, the kind that amount to "illegal price gouging" by "opportunistic companies." But as she emphasizes, there currently is no such thing under federal law, and any attempt to define it would be plagued by subjectivity and a lack of relevant knowledge.

The fact that Harris pins the sharp grocery price inflation of recent years on corporate greed suggests that her judgment about such matters cannot be trusted. Economists generally rate other factors—including the war in Ukraine as well as pandemic-related supply disruptions, shifts in consumer demand, and stimulus spending—as much more important.

High profits, in any event, are another important signal that encourages investment and competition. By forbidding "excessive profits," Harris' proposed price policing would undermine the motivation they provide.

According to the most recent numbers, the annual inflation rate dropped below 3 percent as of July. With inflation cooling, this might seem like a strange time for Harris to resuscitate an idea that was already proving disastrous thousands of years ago. But as the Times notes, her message "polls well with swing voters."

The broad tariffs that Trump favors, which Harris condemns as "a national sales tax" that would "devastate Americans," also poll well in the abstract. But they are popular only until voters consider the consequences.

In a recent Cato Institute survey, for example, 62 percent of respondents favored a tariff on "imported blue jeans," but that number plummeted when they were asked to imagine the resulting price increases. Harris likewise is counting on voters who like what she says but do not contemplate what it would mean in practice.

© Copyright 2024 by Creators Syndicate Inc.

The post Kamala Harris' 'Price Gouging' Ban: A New Idea That Has Failed for Thousands of Years appeared first on Reason.com.

Last week, the Trump campaign falsely asserted that "homicides are skyrocketing in American cities under Kamala Harris." On Tuesday, the campaign offered a more nuanced and sophisticated critique of crime data cited by the Democratic presidential nominee. But it still does not support the earlier claim, which is inconsistent with numbers from several sources.

A "memorandum" headlined "Joe Biden's Lies on Crime" (a title that makes you wonder whether Trump forgot who his opponent is) notes that the FBI changed its crime data collection methods in 2021, switching from the old Uniform Crime Reporting (UCR) program to the new National Incident-Based Reporting System (NIBRS). The transition, which was aimed at generating "new and better data," resulted in a big decline in the number of participating law enforcement agencies. According to the Bureau of Justice Statistics, the share of the population covered by participating agencies fell from the previous norm of about 95 percent to just 65 percent in 2021.

"The FBI's website reveals that the Q1 2024 data Joe Biden is citing comes from just 71% of the nation's law enforcement agencies," the Trump campaign says. "That means crime data from nearly one third of jurisdictions is missing." The overall NIBRS participation rate, which is relevant in assessing the FBI's final estimates for any given year, is higher: The FBI says 15,724 of 18,884 eligible agencies, or 83 percent, submitted data for 2022. The overall population coverage rate had risen to 85 percent by 2023. Still, the decline in participation since 2020 is a widely recognized problem.

The Trump campaign notes that "the FBI attempts to 'estimate' crime data for non-reporting agencies using a 'statistical weight' from reporting agencies similar in size and type"—a "practice of estimating crime numbers for agencies with missing data" that "has been going on since the 1960s." But historically, the missing data represented around 5 percent of the population, compared to 15 percent in 2023. A bigger gap magnifies the potential for error.

That is a perfectly reasonable point. But does it mean that homicides are, in fact, "skyrocketing"? No.

Nationwide, the FBI's preliminary numbers indicate, murders fell by 26 percent in the first quarter of this year compared to the same period last year. But other sources also report that homicides are falling this year, albeit by smaller percentages.

Based on a sample of 277 cities, AH Datalytics reports a 17.3 percent drop in murders so far this year, which is very large compared to historical trends. Most of these numbers come from "official" sources, meaning they were reported by local police departments or municipal governments. Some were compiled by state governments, and some came from local news outlets that track crime.

The Council on Criminal Justice (CCJ), based on data from 39 cities for the first half of 2024, reports that "most violent crimes," including homicide, "are at or below levels seen in 2019," the year before a huge spike in murders (which, as Trump wants us to forget, happened during his administration). The CCJ says the drop in homicides through June in "the 29 study cities providing data for that crime" was 13 percent.

According to a report from the Major Cities Chiefs Association (MCCA) that covers 69 cities during the same period, the total number of homicides fell by 17.4 percent. That is strikingly similar to the AH Datalytics estimate, although the latter analysis covers a lot more cities—including New York, which was not part of the MCCA sample but saw a 10 percent drop in homicides, according to AH Datalytics.

Instead of trying to defend its recent claim that "homicides are skyrocketing," the Trump campaign widens the focus, arguing that the National Crime Victimization Survey (NCVS), which includes crimes that are not reported to police, provides a more accurate picture of what is happening. The NCVS is not relevant in assessing homicide trends, since it does not cover homicides—the most serious violent crime and the one that is hardest to miss. And although the Trump campaign's criticism of the FBI numbers focuses on what happened in the first quarter of 2024, we do not yet have NCVS data for 2023, let alone this year.

The NCVS, like the FBI's system, has both strengths and weaknesses. But the Trump campaign deems it "by far the most credible and reliable barometer of crime nationwide." The NCVS, it says, "reveals that between 2020 and 2022 (the most recent year for which data is available), there was a 43% increase in violent crime, 58% increase in rape, 89% increase in aggravated assault, and a 56% increase in robbery."

Although these numbers omit 2023 and 2024, the Trump campaign wants us to believe they tell the true story of crime during the Biden administration. But the divergence between the NCVS and FBI numbers, especially in 2022, presents a puzzle that cannot be resolved simply by observing that the NCVS includes unreported crimes.

In 2002, when the FBI reported an overall 2 percent decline in violent crime, the NCVS results indicated a whopping 75 percent increase. Again, the latter number does not include homicide, which according to the FBI fell by 7 percent in 2022. But it does include respondents' reports of rape, which were up 58 percent, compared to the 6 percent drop estimated by the FBI; robbery, which rose by 47 percent according to the NCVS but only 1 percent according to the FBI; and aggravated assault, which more than doubled according to the survey but fell by 2 percent in the FBI's tally.

"Both too much and too little can be made of the divergence between the UCR and NCVS violent crime rates in 2022," the CCJ notes. "Divergent change in a single year should be viewed in the context of the similar long-term trends in the two indicators—and both sources show an appreciable decline in violent crime since the early 1990s." Still, "changes in the UCR and NCVS violent crime rates have rarely differed as much as they did" in 2022.

The 2021 changes in the FBI's reporting system and the concomitant decline in participation do not seem relevant here, since the participation rate was substantially higher in 2022 than it was in 2021. But if crime victims are increasingly disinclined to contact the police, that could help explain the striking 2022 divergence between the NCVS results and the FBI numbers.

According to the NCVS, the CCJ notes, "approximately 52% of serious violent crimes were reported to the police in 2021 and 48% in 2022, a relative decrease of nearly 8%. The decline in reporting crimes to the police was particularly large for aggravated assault, falling from 61% in 2021 to 50% in 2022, a decrease of 18%." But these changes in reporting behavior do not come close to fully accounting for the enormous differences between the NCVS and UCR numbers for 2022.

Beyond the difference between reported and unreported crimes, the NCVS and the FBI's system use different methods and measure somewhat different things. "As a household-based survey," the CCJ notes, "the NCVS does not include people who are homeless or those who live in institutions such as prisons, jails, and nursing homes. It also excludes crimes of violence against persons under 12 years of age. If persons included in the survey have experienced changes in violence that differ from the changes experienced by those excluded from the survey, that could help account for some of the divergence in violence rates."

The Bureau of Justice Statistics notes other possibly relevant differences between the two sources. For example, "the NCVS includes, but the [FBI system] excludes, attempted robberies, simple assault, [and] verbal threats of crime." The FBI system "includes, but the NCVS excludes, homicide, arson, commercial crimes, and human trafficking." The two sources also use different definitions of some crimes.

Another possible factor: While the FBI's 2022 numbers covered the calendar year, the 2022 NCVS asked about crimes experienced from July 1, 2021, through November 30, 2022. "Since the NCVS shows an increase in violent crime," The Marshall Project's Weihua Li and Jamiles Lartey suggest, "it's potentially because violent crime rates were higher in the latter part of 2021." They also note that "the victimization survey is historically much more volatile from one year to the next," suggesting "it may be influenced by statistical noise."

The Trump campaign describes the FBI's quarterly numbers as "garbage" and "fake statistics." But notwithstanding the preliminary nature of those numbers and the challenges associated with the transition to the new reporting system, they are broadly consistent, in direction if not magnitude, with what other sources indicate.

"Right now," Li and Lartey reported in June, "every source points to a decrease in violent crime." They quoted University of Miami criminologist Alex Piquero, an adviser to the CCJ Crime Trends Working Group, who said "the FBI's Q1 2024 data is incomplete, not inaccurate," adding: "There's no fudging of the numbers, and the drop is real. The question, of course, is how big that drop will be, and then how big that drop will be across crime types. That's the thing that we just don't fully grasp yet."

The post Trump's New, More Sophisticated Take on Crime Still Does Not Show 'Homicides Are Skyrocketing' appeared first on Reason.com.

A few years ago, Roseberline Turenne, an 18-year-old aide at a Maryland day care center, used her cellphone to take photographs showing "the naked genitals and pubic areas" of eight little girls. Seven of the girls were lying on changing tables, while the eighth was standing in a bathroom. Turenne later claimed she was documenting preexisting diaper rashes, lest she be blamed for allowing them to develop while the girls were in her care.

Turenne was fired after the pictures were discovered because they violated the day care center's policies, which prohibited staff members from photographing children. She also was charged with eight counts each of child sexual abuse, production of child pornography, and possession of child pornography.

Discounting Turenne's explanation of her motive for taking the pictures, a jury convicted her on all 24 counts, resulting in a 126-year prison sentence. Last Friday, the Maryland Supreme Court upheld Turenne's convictions, concluding that the jury reasonably rejected her account, that her conduct met the elements of the three crimes, and that "the evidence was sufficient for the jury to conclude that Ms. Turenne took the photos of the children for the purpose of sexual gratification."

Although Turenne's astonishingly severe sentence was not at issue in this appeal, it vividly illustrates how laws related to child pornography can generate penalties that make little sense. Even if you join the jurors, the intermediate appeals court, and the Maryland Supreme Court in disbelieving her account of why she took the pictures, she did not share them with anyone, and she was not accused of assaulting the girls. Yet under Maryland law, Turenne will have to serve at least a quarter of her 126-year sentence—nearly 32 years—before she is eligible for parole.

People convicted of violent crimes in Maryland have to serve at least half of their sentences before they are eligible for parole. But someone who was convicted of voluntary manslaughter and received the maximum 10-year sentence still would have a shot at parole after five years. Even someone convicted of first-degree rape, which triggers a mandatory 25-year minimum, could end up serving less time than Turenne faces for noncontact offenses that consisted of nothing more than taking pictures.

That reality is especially troubling because it is not clear that Turenne committed the crimes with which she was charged. Just four out of seven justices agreed that all of her convictions were valid. In a partial dissent joined by Justice Brynja Booth, Chief Justice Matthew Fader concluded that there was insufficient evidence to convict Turenne of producing and possessing child pornography. Justice Shirley Watts concurred, and she filed a separate dissent arguing that Turenne's sexual abuse convictions also should be overturned.

As relevant here, Maryland law defines child pornography as a "visual representation" that "depicts a minor engaged as a subject…in sexual conduct," which includes the "lascivious exhibition of the genitals or pubic area of any person." Although the statute does not define "lascivious exhibition," the Maryland Supreme Court settled on a "content-plus-context" test for determining "whether the image is objectively sexual in nature."

The production and possession charges, in other words, did not hinge on Turenne's personal motivation. In concluding that Turenne's pictures were "objectively sexual," the majority noted that "all eight girls were partially or fully nude," that "all had nude genitals and pubic areas on display," that "none of the children's faces are visible in the photographs," that the picture "were all very similar to one another," and that several girls were in "poses that resemble what one might see in some adult pornography: the subject on her back, her legs spread, displaying her genitals."

Fader agreed with the test used by his colleagues but argued that they misapplied it. "I would conclude that none of the eight photographs at issue depicts a 'lascivious exhibition of the genitals,'" he writes. "Seven of the photographs depict a child on a diaper-changing table, naked, in a position that is fully consistent with a child having her diaper changed. The final picture depicts a child in a standing position in a bathroom, naked from sternum to the knees. None of the children are posed in anything resembling a sexual position. There are no other people in any of the photographs, nor are there any objects that are sexual in nature or that change the nature of the images from children getting diaper changes to anything objectively sexual."

Although "the framing of the photographs is a relevant consideration," Fader says, "the
framing here still makes clear that the pictures are of children during the process of a diaper change." And contrary to the majority's claim that the girls' "poses" are reminiscent of adult pornography, he adds, "the children are situated in the midst of diaper changes—a perfectly ordinary, nonsexual event—not posed in sexual positions. That an image of an adult posed in a similar manner might be viewed as an objectively sexual image—perhaps viewed as sexual because the position is unnatural for an adult in the ordinary course of a day, or perhaps just because of anatomical development—is irrelevant, because these are images of infants, not adults."

Fader says other "contextual elements" cited by the majority—including the photos' similarity to each other, the fact that "they were all taken at a daycare center," the fact that "they were all taken in the center's bathroom, where Ms. Turenne was secluded," her initial statement that the photos had "no meaning," and her "implausible documentation-of-diaper rash explanation"—were "relevant to the jury's consideration of Ms. Turenne's likely purpose in taking and keeping the images." They therefore were "proper considerations for the jury in determining whether Ms. Turenne exploited the children for her own benefit in connection with the child sexual abuse charges." But the test that the majority applied in upholding the child pornography convictions is supposed to be "objective," making her motivation irrelevant.

"The only contextual element that is relevant to the jury's understanding of what is depicted in the images themselves, to the extent it is unclear in any of them, is that the children in seven of the eight images were lying on a changing table and the eighth was in a bathroom," Fader writes. "But knowledge of the setting in which the pictures were taken does not add any element of objective sexuality to them, separate and apart from Ms. Turenne's subjective motivation. The other contextual elements identified by the Majority speak to Ms. Turenne's subjective motivation, not what is depicted in the images themselves."

To convict Turenne of the sexual abuse charges, the prosecution had to prove beyond a reasonable doubt that the photos constituted "exploitation of a minor," meaning she "took advantage of or unjustly or improperly used the child for…her own benefit." That "benefit," according to the prosecution, was "sexual gratification." Fader agreed with the majority that "there was sufficient evidence for the jury to infer that Ms. Turenne took the eight pictures at issue for her own benefit."

Watts, however, dissented on that point too. She notes that the prosecution made much of Turenne's sexual orientation, which Watts thinks improperly figured in the verdict.

During Turenne's trial, a prosecutor asked her if she was attracted to women. "I wouldn't say attracted to women," she replied. "I'm bisexual, like, I'm still confused about what I like between men or women. But not children, no."

The prosecution, which noted that all the photographs featured girls and presented testimony from a co-worker who said Turenne had told her "she was gay," argued that her sexual orientation was relevant in assessing why she took the pictures. Prosecutors also noted that Turenne had adult pornography featuring both men and women on her phone—although, contrary to what you might expect given the charges against her, there was no indication that she had "conducted any internet searches for child pornography."

The Maryland Supreme Court explicitly declined to consider that evidence. But Watts argues that it played an important role in the case. Turenne "was prejudiced by the admission of the evidence," Watts says. And "with these circumstances omitted, the remaining evidence is insufficient to support Ms. Turenne's convictions for child sexual abuse."

Watts suggests that Turenne's explanation of her behavior is more plausible than her colleagues think. "Some of the photos show redness or darkened areas—i.e., consistent with diaper rashes—near the genital area and/or in the fold of the buttocks, and one of them shows diaper cream in and around the fold of the buttocks," she writes. "Ms. Turenne testified that she took the photos to prove that children had diaper rashes before she started watching them. Although the jury evidently did not find this part of Ms. Turenne's testimony credible, the nature of the photos and the circumstances surrounding them being taken do not alone establish that the photos were taken for the purpose of sexual gratification."

The majority emphasized that Turenne initially denied taking the pictures, later said they had "no meaning," and did not offer the diaper-rash explanation until her trial. But Watts thinks Turenne's evasiveness and reticence are understandable in the circumstances, even without accepting the prosecution's theory of why she took the photos.

"Although the photos were taken clandestinely in violation of the daycare center's no-photo policy and Ms. Turenne initially denied having taken them, these facts were not sufficient for a rational juror to infer that the photos were taken for sexual gratification," Watts writes. "A rational juror could have inferred that Ms. Turenne took the photos because she was concerned about being blamed for diaper rashes and lied about having taken them because she knew doing so was against the daycare center's policy. A rational juror also could have inferred that Ms. Turenne took the photos while she was alone with the children because she knew that taking the photos was against the center's policy….Without consideration of evidence admitted at trial concerning Ms. Turenne's sexual orientation and possession of adult pornography, no rational juror could have found beyond a reasonable doubt based on the appearance of the photos that they were taken for sexual gratification."

Although Turenne did not challenge her sentence in this appeal, Watts notes that "the circuit court imposed an aggregate sentence of 280 years of imprisonment, with all but 126 years suspended, followed by 5 years of probation and lifetime registration as a sex offender." While "criminal offenses against children are heinous and must be dealt with appropriately," she says, "it is disproportionate and draconian to impose an aggregate sentence of nearly 3 centuries of imprisonment, with all but 126 years suspended, under the circumstances of this case." Whatever you make of Turenne's defense, that much seems clearly true.

The post A Day Care Worker Who Says She Was Documenting Diaper Rashes Got 126 Years for Taking 8 Photos appeared first on Reason.com.

An April 1 federal indictment charged two men, Antonio Venti and Michael Kuilan, with supplying the drugs that killed transgender activist Cecilia Gentili in February. Among other things, Venti and Kuilan are accused of causing Gentili's death by distributing a mixture of heroin and fentanyl, a felony punishable by a mandatory minimum of 20 years in prison and a maximum of life.

Gentili "was tragically poisoned in her Brooklyn home [by] fentanyl-laced heroin," Breon Peace, the U.S. attorney for the Eastern District of New York, said in a press release. "Fentanyl is a public health crisis. Our Office will spare no effort in the pursuit of justice for the many New Yorkers who have lost loved ones due to this lethal drug." The indictment "delivers a strong message to anyone who profits from poisoning our communities with illicit drugs," New York City Police Commissioner Edward Caban added. "It is imperative that we continue to hold distributors accountable for their callous actions."

That self-righteous stance obscures the role that drug warriors like Peace and Caban played in killing Gentili. If Venti and Kuilan were "callous," how should we describe public officials who are dedicated to enforcing laws that predictably cause tens of thousands of deaths like this one every year?

Those laws create a black market in which the composition and potency of drugs is uncertain and highly variable. They also push traffickers toward highly potent drugs such as fentanyl, which are easier to conceal and smuggle. As a result, drug users like Gentili typically don't know exactly what they are consuming, which magnifies the risk of a fatal mistake. The "poisoning" that Peace and Caban decried therefore is a consequence of the policies they were proudly enforcing in this very case.

In this context, it would be perverse to hold Gentili responsible for causing her own death. Peace and Caban instead blamed Venti and Kuilan, which might seem more plausible until you consider the complexities of illicit drug distribution. As the Drug Policy Alliance (DPA) noted, "People who sell drugs rarely know the exact contents of their drug supply or a given dose. Research shows drug mixing is typically done at much higher levels of the supply chain."

It is clear neither Kuilan nor Venti intended to kill Gentili. Yet the mandatory penalties they face are much more severe than the federal penalties for voluntary or involuntary manslaughter and New York's penalties for criminally negligent homicide. That distinction hinges on the legal status of the drugs they sold, as opposed to their culpability in Gentili's death.

Prosecutions like these make a mockery of justice. "Drug-induced homicide laws, mandatory minimum laws, and other severe penalties that people face when they sell or share drugs that result in a fatal overdose primarily punish people involved with low-level selling who often use drugs themselves," the DPA noted. The New York Times reported that Venti, who was previously convicted of "petty larceny and attempted drug sales," is an electrician who has "struggled with drug addiction." Even drug users who merely share purchases with friends or relatives have been prosecuted for causing their deaths.

These attempts to convert accidental overdoses into homicides are dangerous as well as morally dubious. They "cost lives because fear of prosecution deters people from seeking help in an emergency," the DPA argues. "Drug-induced homicide prosecutions may have the unintended consequence of people failing to seek medical help in a drug overdose situation, resulting in increased likelihood of death."

Prohibition, in short, created the hazard that killed Gentili. It compounded that hazard by fostering the use of additives such as fentanyl and the animal tranquilizer xylazine (which was also detected in Gentili's blood). And it made the resulting overdoses more perilous by discouraging prompt intervention. The answer, according to Peace and Caban, is zealous enforcement of the same laws that produced this disaster.

Frank Tarentino, special agent in charge of the Drug Enforcement Administration's New York Division, concurred. "Fentanyl is a deadly drug that dealers mix into their product and has accounted for 70% of drug related deaths nationwide," he said in Peace's press release. "Drug poisonings take too many lives too soon from communities nationwide and DEA is committed to bringing to justice those responsible."

If Americans truly demanded accountability from "those responsible" for drug-related deaths, they would start with the politicians and law enforcement officials who are perversely committed to making drug use as dangerous as possible.

The post Don't Blame Dealers for Fentanyl Deaths. Blame Drug Warriors. appeared first on Reason.com.

After black-clad demonstrators protested Donald Trump's inauguration in an "Anti-Capitalist/Anti-Fascist Bloc" march on January 20, 2017, federal prosecutors in Washington, D.C., charged more than 200 of them with rioting. While 21 defendants pleaded guilty, all of the other cases ended in acquittals, mistrials, or charges dismissed with prejudice. One reason for that fiasco, according to recently filed disciplinary charges, was the discovery that the federal prosecutor who oversaw the cases persistently withheld exculpatory evidence and repeatedly lied about it to judges and defense attorneys.

In a "specification of charges" filed with the D.C. Court of Appeals Board of Professional Responsibility last month, Disciplinary Counsel Hamilton P. Fox III alleges that Jennifer Kerkhoff Muyskens, who is now a federal prosecutor in Utah but previously worked at the U.S. Attorney's Office for the District of Columbia, violated six rules of professional conduct while trying to convict "DisruptJ20" protesters, including many who had not participated in vandalism or violence. Muyskens "knew that most defendants did not commit violent acts themselves," Fox notes, but "she argued that these defendants were still liable for felony rioting and felony property destruction because they joined a criminal conspiracy to use the protest march to further the violence and destruction that occurred."

To support that theory, Muyskens presented video of a DisruptJ20 planning meeting that had been clandestinely recorded by an "operative" from Project Veritas, a conservative group that frequently has been accused of using misleadingly edited videos to portray progressive and leftist organizations in a negative light. Although Muyskens "understood Project Veritas had a reputation for editing videos in a misleading way," Fox says, she initially concealed the source of the video, saying in court that "who provided it is irrelevant." And although Muyskens "knew that Project Veritas had omitted and edited some of its videos" before releasing them, Fox adds, she "did not request or obtain Project Veritas's missing videos or unedited footage."

According to Fox, Muyskens and Metropolitan Police Department (MPD) Detective Greggory Pemberton edited the meeting footage in ways that bolstered the prosecution's case, and Muyskens covered up the extent of those edits. Fox says Muyskens also withheld Project Veritas videos of other DisruptJ20 meetings that would have been helpful to the defense, pretending that they did not exist. And she allegedly concealed the fact that Pemberton, in testimony to a grand jury, had erroneously identified one of the DisruptJ20 defendants as a woman who appears in the video of the planning meeting.

According to the Supreme Court's 1963 ruling in Brady v. Maryland, due process requires prosecutors to share potentially exculpatory evidence with the defense. Fox says Muyskens violated that rule by excising footage and withholding videos that could have been useful in rebutting the prosecution's case.

The material that Muyskens and Pemberton excised from the planning meeting video included footage that would have revealed its provenance. They also cut footage of a phone call in which a Project Veritas infiltrator told a colleague, "I don't think they know anything about the upper echelon stuff."

The excised footage "revealed that the video was filmed as part of Project Veritas's infiltration of DisruptJ20, which tended to undermine the credibility and reliability of the government's evidence," Fox writes. "In addition, the operative's post-meeting report indicated that some DisruptJ20 protest organizers did not know anything about plans or decisions that were being made by an 'upper echelon.' This lack of knowledge supported the non-violent defendants' theory that, assuming a plan to riot existed at all, only a small group was involved, which they knew nothing about. Alternatively, if the operative was discussing protest organizers being unaware of Project Veritas's 'upper echelon' plans, the statements supported…claims that Project Veritas conspired to frame DisruptJ20 defendants for third-party violence, including by possibly inciting violence themselves. Both judges who later considered the issue…found that the complete, unedited footage was exculpatory."

The videos that Muyskens withheld included evidence that, contrary to the prosecution's narrative, the DisruptJ20 protest was supposed to be peaceful. Those videos "were exculpatory," Fox explains, "because they showed that DisruptJ20 planning meetings consistently involved training and instructing protesters how to participate in its unpermitted 'Actions,' including the anti-capitalist march, as non-violent protests, using nonviolence and de-escalation techniques, which supported the non-violent defendants' claim that their intent was merely to peacefully protest."

The undisclosed videos also "showed Project Veritas operatives discussing their infiltration operation of DisruptJ20, which supported the defense's theory that Project Veritas conspired to blame DisruptJ20 for others' misconduct," Fox notes. "For example, the undisclosed videos showed Project Veritas operatives discussing—before the Inauguration protests—how they were providing information on DisruptJ20 to the FBI, how there was likely to be violence from 'outside influencers,' and how DisruptJ20 would 'catch the blame' for outsiders' misconduct because the FBI was 'going to say' that they incited it."

In court, Fox says, Muyskens "falsely said that the government had made only two edits, which were both to redact the identity of the videographer and an undercover officer," and "that, other than the two redactions, the defense had the same videos as the government." She "falsely told the court that she had provided defense counsel with 'the full entirety of those videos from that day.'"

According to Fox, "Pemberton testified falsely that Project Veritas had produced only the four disclosed video segments of the [planning meeting video]" and that "the only editing the government did was to combine the first three video segments into one exhibit to be played at trial." Muyskens and Pemberton "did not disclose how they had edited the original videos they received from Project Veritas," and they did not "disclose that they had omitted from discovery many other videos Project Veritas videos of DisruptJ20's planning meetings."

Muyskens told a judge that Project Veritas had "provided unedited video" at Pemberton's request and that "we posted the video" to the discovery portal. Those statements, Fox says, "were false and misleading." Muyskens also "falsely said that other than redacting the identities of the Project Veritas operative and [the undercover officer], 'the defense has the exact video we have.'" The judge "later found that [Muyskens] 'left a clear impression' that she had disclosed everything that Project Veritas had produced."

Muyskens told another judge that "the government had 'provided the clips as we have them'" and that "'the only editing' by the government 'was to combine the three clips' of the anti-capitalist 'breakout' into a single video exhibit for trial." Those statements also "were false and misleading," Fox says.

Muyskens eventually "acknowledged that the government had additional, undisclosed Project Veritas videos of DisruptJ20's planning meetings." But she "mischaracterized them and falsely suggested that they were irrelevant."

During the investigation of her conduct, Fox says, Muyskens "repeated her false statements and material omissions" regarding the video edits, the withheld videos, her suppression of "relevant information and evidence," her failure to produce grand jury transcripts from the misidentified defendant's case, her "misrepresentations and omissions to the grand jury, the defense, and the court," and her failure to "correct known misrepresentations to the court." She also "made additional false statements and material omissions to falsely explain her conduct." She claimed, for example, that the undisclosed videos "were irrelevant and did not discuss the anti-capitalist march."

Fox says Muyskens' actions violated the District of Columbia's Rules of Professional Conduct in half a dozen ways:

1. She allegedly violated Rule 3.3(a) by "knowingly making false statements, offering false evidence, and failing to correct material false statements to the court."

2. She allegedly violated three sections of Rule 3.4 by "obstructing the defense's access to evidence and altering or concealing evidence, or assisting another person to do so when she reasonably should have known that the evidence was or may have been subject to discovery; knowingly disobeying the court's direct orders to produce information in the government's possession without openly asserting that no valid obligation existed; and/or failing to make reasonably diligent efforts to comply with the defense's discovery requests."

3. She allegedly violated two sections of Rule 3.8 by "intentionally avoiding pursuit of evidence and information because it may have damaged the prosecution's case or aided the defense; and by intentionally failing to disclose to the defense, upon request and at a time when use by the defense was reasonably feasible, evidence and information that she knew or reasonably should have known tended to negate the guilt of the accused or mitigate the offense."

4. She allegedly violated Rule 8.4(a) by "knowingly assisting or inducing another to violate the Rules of Professional Conduct and/or doing so through the acts of another."

5. She allegedly violated Rule 8.4(c) by "engaging in conduct that involved reckless or intentional dishonesty, misrepresentations, deceit, and fraud, which misled the grand jury, the defense, the court, the government, and disciplinary authorities about the
evidence in the government's possession and the government's conduct."

6. She allegedly violated Rule 8.4(d) by "engaging in conduct that seriously interfered with the administration of justice."

Possible sanctions against Muyskens range from "temporary suspension of her law license to full disbarment," Washington City Paper notes. The Washington Post reports that lawyers for Muyskens did not respond to requests for comment and that "Pemberton also did not respond to an inquiry." The U.S. attorney's offices in D.C. and Utah "declined to comment." So did the MPD, which "would not say whether the department has opened an investigation of Pemberton, who now chairs the police labor union."

The failed prosecutions and the disciplinary charges against Muyskens are not the only embarrassments stemming from the Inauguration Day march. In 2021, the Post notes, "the D.C. government agreed to pay $1.6 million to settle two lawsuits" by protesters who argued that the police response to the DisruptJ20 march violated their First Amendment rights.

"It speaks volumes that the District has chosen to settle rather than defend MPD's obviously unconstitutional actions in court," Jeffrey Light, one of the protesters' attorneys, said when the settlement was announced. Scott Michelman, legal director at the American Civil Liberties Union of the District of Columbia, added that "MPD's unconstitutional guilt-by-association policing and excessive force, including the use of chemical weapons, not only injured our clients physically but also chilled their speech and the speech of countless others who wished to exercise their First Amendment rights but feared an unwarranted assault by D.C. police."

The post Prosecutor of Anti-Trump Protesters Allegedly Withheld Exculpatory Evidence and Lied About It appeared first on Reason.com.

This week, a federal judge ruled that a major provision of New Jersey's "assault weapon" ban is unconstitutional, but he was not happy about saying so. The decision illustrates how the Supreme Court's Second Amendment precedents have constrained the discretion of judges who are personally inclined to support gun control.

New Jersey's Assault Firearms Law—which the state Legislature approved in 1990, responding to a mass shooting at a Stockton, California, elementary school the previous year—bans a list of specific rifle models, along with "any firearm manufactured under any designation which is substantially identical to any of the firearms listed above." According to guidelines that New Jersey Attorney General Peter Verniero issued in 1996, the latter description encompasses semi-automatic rifles that accept detachable magazines and have at least two of five features: a folding or telescoping stock, a pistol grip, a bayonet mount, a flash suppressor or threaded barrel designed to accommodate one, or a grenade launcher. Illegal possession of "assault firearms" is a second-degree crime punishable by five to 10 years in prison and a maximum fine of $150,000.

In separate lawsuits that U.S. District Judge Peter Sheridan considered together, several gun owners and two gun rights groups, the Firearms Policy Coalition (FPC) and the Association of New Jersey Rifle and Pistol Clubs (ANJRPC), argued that the rifle ban is unconstitutional. Sheridan's decision in ANJRPC v. Platkin focuses on the Colt AR-15, one of the specifically banned rifles, because it was the model mentioned most frequently by the plaintiffs and the state.

"The information presented to the Court focuses largely on one specific type of firearm: the AR-15," Sheridan writes. "And given the variety of firearms regulated in the Assault Firearms Law and the nuances that each individual firearm presents, the Court's analysis of the Assault Firearms Law is limited to the firearm with which the Court has been provided the most information: the AR-15."

Sheridan, a senior judge who was appointed to the U.S. District Court for the District of New Jersey by George W. Bush in 2005, repeatedly refers specifically to "the Colt AR-15." But he also notes that "the AR-15 is produced by several different manufacturers," including FN, Ruger, Remington, Bushmaster, Rock River Arms, Wilson Combat, Barrett, Panther Arms, H&K, Lewis Machine, Olympic Arms, Palmetto State Armory, and Mossberg. So his conclusion that "the AR-15 Provision is unconstitutional" evidently applies to all AR-15-style rifles, regardless of who makes them or what they are officially called.

Before explaining his reasoning in reaching that conclusion, Sheridan expresses his dismay at the Supreme Court precedents he is required to follow. "It is hard to accept the Supreme Court's pronouncements that certain firearms policy choices are 'off the table' when frequently, radical individuals possess and use these same firearms for evil purposes," he says. "Even so, the Court's decision today is dictated by one of the most elementary legal principles within our legal system: stare decisis. That is, where the Supreme Court has set forth the law of our Nation, as a lower court, I am bound to follow it. This principle—combined with the reckless inaction of our governmental leaders to address the mass shooting tragedy afflicting our Nation—necessitates the Court's decision."

Despite his personal policy preferences, Sheridan thinks it is clear that the AR-15 qualifies as a weapon "in common use" for "lawful purposes like self-defense"—the sort of arms that the Supreme Court has said are covered by the Second Amendment. He notes a 2022 estimate that Americans owned about 24 million "AR-15s and similar sporting rifles," and he highlights testimony that such guns are useful for home defense.

"Plaintiffs have shown that AR-15s are well-adapted for self-defense," Sheridan writes. "Evidence has been presented to the Court that the build of the AR-15 makes it well-suited to self-defense because it is 'light weight, [has] very mild recoil, and [has] good ergonomics'; it is a weapon which is 'well suited to younger shooters, female shooters, and other shooters of smaller stature.'" He adds that "the AR-15's design features—including the effectiveness of its cartridge for self-defense use and its better continuity of fire when used with available magazines—make the AR-15 a good choice for self-defense." And he notes that "the AR-15 has been used recently in several, relatively high-profile self-defense events in Florida, Illinois, Texas, Pennsylvania, and Oklahoma."

Those points should be disregarded, the state argued, because handguns are a more popular choice for self-defense and one that New Jersey allows. But as Sheridan notes, the Supreme Court's decision in the landmark 2008 case District of Columbia v. Heller, which overturned a local handgun ban, explicitly rejected that sort of argument. "It is no answer to say…that it is permissible to ban the possession of handguns so long as the possession of other firearms (i.e., long guns) is allowed," Justice Antonin Scalia wrote in the majority opinion. "It is enough to note, as we have observed, that the American people have considered the handgun to be the quintessential self-defense weapon."

Like the law at issue in Heller, "the Assault Firearms Law's AR-15 Provision acts effectively as the total prohibition on a commonly used firearm for self-defense—AR-15s—within the home," Sheridan writes. And under Heller, "a categorical ban on a class of weapons commonly used for self-defense is unlawful." Given "the Supreme Court's clear direction on this point," Sheridan says, "the AR-15 Provision of the Assault Firearms Law is unconstitutional" as applied to "the Colt AR-15 for use for self-defense in the home."

Sheridan reached a different conclusion regarding another provision of New Jersey's Assault Firearms Law that the plaintiffs also challenged: the ban on "large capacity magazines" (LCMs). Legislators originally defined LCMs as magazines that hold more than 15 rounds but reduced the limit to 10 rounds in 2018. That restriction, Sheridan says, is "consistent with this Nation's historical tradition of firearm regulation"—the test established by the Supreme Court's 2022 ruling in New York State Rifle & Pistol Association v. Bruen.

Sheridan acknowledges that the U.S. Court of Appeals for the 3rd Circuit, which includes New Jersey, has recognized ammunition as "arms" within the meaning of the Second Amendment. But he thinks the LCM ban differs from the AR-15 ban in a crucial way.

"The LCM Amendment passes constitutional muster because although the Second Amendment right is implicated, this regulation is in line with the historical regulations within the tradition of our Nation," Sheridan writes. "Put more precisely, the reduction of capacity is a limitation on firearms ownership. It is not a categorical ban preventing law-abiding citizens from exercising their Second Amendment rights [with] a weapon that is in common use for self-defense."

Sheridan notes that "detachable magazines did not exist in the Founding period" and that "it was not until the mid-l800s that patents for magazines falling within the definition of the LCM Amendment began appearing in the historical record." While "rifles capable of holding more than ten rounds became available" in the 1860s, he adds, "the magazine was fixed." And "despite the issuance of a patent for detachable magazines in 1864, firearms with detachable magazines were not widely available until the end of the Nineteenth Century."

Magazines that could hold more than 10 rounds, Sheridan notes, "did not exist in 1791," when the Second Amendment was ratified, and "were not widely available in 1868," when the 14th Amendment required states to respect the right to arms. He says it therefore would be plainly unreasonable to demand that New Jersey "locate a statute or regulation from that time" that closely resembles its LCM ban.

In Bruen, Sheridan writes, the Supreme Court "noted that current regulations may implicate either 'unprecedented societal concerns' or 'dramatic technological changes' different from those that existed when the Second Amendment was ratified in 1791 or when the Fourteenth Amendment was ratified in 1868. In those circumstances, 'a more nuanced approach' to determine if historical regulations are 'relevantly similar' to the currently challenged regulations must be utilized based on two measurements: 'how and why the regulations burden a law-abiding citizen's right to armed self-defense.'"

Sheridan thinks the LCM ban's "how" is "relevantly similar" to the scope of historical restrictions on pistols and Bowie knives. "The LCM Amendment places a burden on self-defense that is comparable to the burden imposed by the historical analogues," he says. "Like these restrictions, the LCM Amendment is…a restriction responding to safety concerns present in our time."

As for the LCM ban's "why," Sheridan says, there is evidence that LCMs "increase the lethality of mass shooting events." In recent years, he notes, magazines holding over 10 rounds often have been used in mass shootings, including "all" such crimes from 2019 through 2022.

The "stated purpose" of New Jersey's LCM ban, which is to "effectively slow down a mass shooter," is "well-served" by that restriction, Sheridan writes. "A limitation on magazine capacity stops the rate at which victims can be injured," he says, and "allows for time during which a shooter may be intercepted, interrupted, or hopefully, stopped." While "such a problem" may be "new to us," he adds, it is "analogous to other safety issues presented by [weapons] commonly used…for lawful purposes confronted by our Nation in the past."

Sheridan, who decries the "alarming frequency" of mass shootings, never acknowledges that they remain rare compared to other kinds of lethal crime. Based on the commonly used definition of mass shootings as public attacks that kill four or more people, they account for around 1 percent of homicides committed with guns. And while Sheridan implies that mass shootings are on the rise, the RAND Corporation notes that "chance variability in the annual number of mass shooting incidents makes it challenging to discern a clear trend" and that "trend estimates are sensitive to outliers and to the time frame chosen for analysis."

Sheridan nevertheless decries the "reckless inaction of our governmental leaders to address the mass shooting tragedy afflicting our Nation," which both exaggerates the frequency of these crimes and takes for granted that they could be prevented if only politicians tried hard enough. In addition to a lack of political will, Sheridan implicitly blames the Supreme Court for saying that the Second Amendment puts some gun restrictions "off the table." Yet despite these views, he felt constrained to reject New Jersey's AR-15 ban.

At the same time, Sheridan was curiously reticent to extend his analysis by considering the illogic of banning "substantially identical" rifles and defining that category based on an arbitrary set of features. With or without those features, a rifle fires the same ammunition at the same rate with the same muzzle velocity. Does it make any sense, for example, to expect that banning rifles with both folding stocks and threaded barrels would have any noticeable impact on mass shooting deaths, let alone homicide generally?

While Sheridan's concern about the use of LCMs in mass shootings is more plausible, it is based on an inconclusive correlation. The public safety benefit of banning them is speculative, and Sheridan did not even consider the argument that the ability to fire more than 10 rounds without changing magazines can be important in some self-defense situations—a point that legislators take for granted when they exempt current and former police officers from magazine restrictions.

The FPC plans an appeal to the 3rd Circuit, which it wants to "address legal deficiencies in [Sheridan's] opinion," and "seek the full relief" that the plaintiffs requested. "Bans on so-called 'assault weapons' are immoral and unconstitutional," says FPC President Brandon Combs. "FPC will continue to fight forward until all of these bans are eliminated throughout the United States."

The post A Federal Judge Reluctantly Concludes That New Jersey's AR-15 Ban Is Unconstitutional appeared first on Reason.com.

As of early May, more than three years after New York legalized recreational 
marijuana, just 119 licensed dispensaries were serving that market in the entire state. Unauthorized pot shops outnumbered legal outlets by 20 to 1, according to The New York Times, with more than 2,000 operating in New York City alone. The state had less than one licensed pot store per 100,000 residents—in contrast with about six in
Massachusetts, 10 in Maine, 11 in Colorado, 19 in Oregon, and 48 in New Mexico.

Legislators and regulators could have avoided this "disaster," as New York Gov. Kathy Hochul recently called it, had they learned from the mistakes of other states that have struggled to displace the black market. Yet New York politicians somehow did not anticipate what would happen after people could legally use marijuana but could not obtain it from legal sources.

Legislators did not allow home cultivation, and they initially did not allow medical dispensaries to serve recreational consumers. New York created a complicated, costly, and sluggish licensing process that prioritized "equity" and "diversity" above efficiency. The state imposed 
burdensome fees, taxes, and regulations that made it difficult for legal dispensaries to compete with the unlicensed stores that sprang up to fill the supply gap.

New York did not let medical dispensaries enter the market until last December. Even then, it charged companies $20 million for the privilege of operating up to three outlets.

New businesses faced fees up to $300,000, and regulators gave priority to retail applicants who were deemed 
disadvantaged, including people with marijuana conviction records and their relatives. Those preferences provoked lawsuits that further delayed the licensing process, and they blocked applicants who might have been better equipped to run a successful business.

Despite these problems, Hochul remains proud of New York's "social equity" program. But she has ordered a bureaucratic overhaul to speed up retail license approvals and has voiced support for cutting the state's heavy marijuana taxes, which currently include a three-tiered wholesale tax based on THC content as well as a 13 percent retail tax.

Legislators should keep in mind that licensed shops are competing with a black market where the tax rate is zero. New York also should reexamine the onerous regulations that make legal weed more expensive and less accessible.

Although Hochul has promised to "shut down illicit operators," any such crackdown is apt to inflict the sort of harm that legalization was supposed to ameliorate, punishing entrepreneurs for filling the yawning gap left by the state's misguided policies and administrative incompetence. Nor is enforcement likely to succeed, given the abysmal track record of the war on weed—a crusade that legislators supposedly ended three years ago.

The post The Government Caused New York's Legal Pot 'Disaster' appeared first on Reason.com.

A federal law that Congress enacted in 1994 prohibits gun possession by people subject to domestic violence restraining orders. Since that seems like a no-brainer, many people were dismayed when the U.S. Court of Appeals for the 5th Circuit deemed that provision unconstitutional last year in United States v. Rahimi. But as anyone who reads the majority and concurring opinions in that case can see, there is a striking problem with 18 USC 922(g)(8): It disarms people even when there is little or no evidence that they pose a danger to others.

In an 8–1 decision today, the Supreme Court avoided that issue by noting that the man who challenged his prosecution under Section 922(g)(8), Zackey Rahimi, is a bad dude with an extensive history of violence, including violence against his girlfriend. As applied to people like Rahimi, Chief Justice John Roberts says in the majority opinion, the law is "consistent with this Nation's historical tradition of firearm regulation"—the constitutional test that the Court established in the 2022 case New York State Rifle & Pistol Association v. Bruen.

"When a restraining order contains a finding that an individual poses a credible threat to the physical safety of an intimate partner, that individual may—consistent with the Second Amendment—be banned from possessing firearms while the order is in effect," Roberts says. The decision does not address the question of whether it is consistent with the Second Amendment to disarm someone without such a judicial finding.

Noting that Rahimi raised a facial challenge, Roberts faults the 5th Circuit for focusing on "hypothetical scenarios where Section 922(g)(8) might raise constitutional  concerns" instead of "consider[ing] the circumstances in which Section 922(g)(8) was most likely to be constitutional." That error, he says, "left the panel slaying a straw man."

As 5th Circuit Judge James Ho emphasized in his Rahimi concurrence, that "straw man" is not merely hypothetical. The "constitutional concerns" to which Roberts alludes derive from the statute's loose requirements for court orders that trigger the gun ban. Under Section 922(g)(8), a restraining order must include at least one of two elements, one of which sweeps broadly enough to encompass individuals with no history of violence or threats.

The first, optional element—a judicial finding that the respondent "represents a credible threat to the physical safety" of his "intimate partner" or that person's child—provides some assurance that the order addresses a real danger, especially since the law requires a hearing in which the respondent has "an opportunity to participate." As Roberts notes, the order against Rahimi included such a finding. But the second, alternative criterion—that the order "by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury"—can be met by the boilerplate language of orders that are routinely granted in divorce cases, whether or not there is good reason to believe the respondent is apt to assault anyone.

In his Rahimi concurrence, Ho noted that protective orders are "often misused as a tactical device in divorce proceedings" and "are granted to virtually all who apply." They are "a tempting target for abuse," he said, and in some cases have been used to disarm the victims of domestic violence, leaving them "in greater danger than before."

In the lone dissent from today's decision, Justice Clarence Thomas likewise notes how easily someone can lose his right to arms under Section 922(g)(8). The provision "does not require a finding that a person has ever committed a crime of domestic violence," he writes. It "is not triggered by a criminal conviction or a person's criminal history." And it "does not distinguish contested orders from joint orders—for example, when parties voluntarily enter a no-contact agreement or when both parties seek a restraining order."

Furthermore, Thomas says, the law "strips an individual of his ability to possess firearms and ammunition without any due process," since "the ban is an automatic, uncontestable consequence of certain orders." The Cato Institute made the same basic point about due process in a brief supporting Rahimi's challenge.

Although a hearing is required for the restraining order itself, Thomas notes, "there is no hearing or opportunity to be heard on the statute's applicability, and a court need not decide whether a person should be disarmed under §922(g)(8)." He also points out that the penalties for violating the provision are severe: up to 15 years in prison, plus permanent loss of gun rights based on the felony conviction.

Roberts, who criticizes the 5th Circuit for requiring a "historical twin" rather than a "historical analogue" under the Bruen test, sees precedent for Section 922(g)(8) in "surety" laws that required threatening people to post bonds, which they would forfeit if they became violent. But Thomas does not think those laws are "relevantly similar" to the provision that Rahimi violated.

"Surety laws were, in a nutshell, a fine on certain behavior," Thomas writes. "If a person threatened someone in his community, he was given the choice to either keep the peace or forfeit a sum of money. Surety laws thus shared the same justification as §922(g)(8), but they imposed a far less onerous burden."

In particular, Thomas says, "a surety demand did not alter an individual's right to keep and bear arms. After providing sureties, a person kept possession of all his firearms; could purchase additional firearms; and could carry firearms in public and private. Even if he breached the peace, the only penalty was that he and his sureties had to pay a sum of money. To disarm him, the Government would have to take some other action, such as imprisoning him for a crime." Thomas thinks the government "has not shown that §922(g)(8)'s more severe approach is consistent with our historical tradition of firearm regulation."

Roberts, by contrast, says a prosecution under Section 922(g)(8) can be consistent with that tradition, at least when a judge concludes that someone "poses a credible threat to the physical safety of an intimate partner." The constitutionality of applying Section 922(g)(8) in cases where there was no such finding remains uncertain. Some Second Amendment scholars, such as the Independence Institute's David Kopel, argue that the provision would be constitutional if it were amended to require a finding of dangerousness.

The Court did clarify an important point in a way that could bode well for other challenges to the broad categories of "prohibited persons" who are not allowed to possess firearms, such as cannabis consumers and other illegal drug users. The majority rejected the Biden administration's position that only "responsible" people qualify for Second Amendment rights.

"We reject the Government's contention that Rahimi may be disarmed simply because he is not 'responsible,'" Roberts writes. "'Responsible' is a vague term. It is unclear what such a rule would entail. Nor does such a line derive from our case law."

In Bruen and in District of Columbia v. Heller, the 2008 case in which the Court first explicitly recognized that the Second Amendment guarantees an individual right to armed self-defense, Roberts notes, "we used the term 'responsible' to describe the class of ordinary citizens who undoubtedly enjoy the Second Amendment right….But those decisions did not define the term and said nothing about the status of citizens who were not 'responsible.' The question was simply not presented."

The post SCOTUS Dodges a Crucial Problem With Disarming People Based on Restraining Orders appeared first on Reason.com.

"In 2016," Harvard law professor Laurence Tribe writes, quoting Democracy Docket's Marc Elias, "Donald Trump seemed to pull an inside straight by narrowly winning" Michigan, Pennsylvania, and Wisconsin "while losing the popular vote by 3 million. We now know Trump committed 34 felonies to win that election. Without these crimes, he seems almost certain to have lost to Hillary Clinton. She would have been sworn in on Jan. 20, 2017. She would have filled two Supreme Court vacancies and enacted her legislative agenda."*

Since those 34 felonies involved falsified business records that were produced in 2017, that claim is logically impossible. Yet this gloss on the former president's New York conviction echoes similarly puzzling claims by many smart and ostensibly well-informed observers. In their eagerness to embrace the prosecution's dubious "election fraud" narrative, they nonsensically assert that Trump retroactively ensured his 2016 victory by disguising a 2017 hush-money reimbursement as payment for legal services.

Shortly before the 2016 presidential election, Michael Cohen, then Trump's lawyer, paid porn star Stormy Daniels $130,000 to keep her from telling her story about sex with Trump at a Lake Tahoe hotel during a celebrity golf tournament in July 2006. When Trump paid Cohen back in 2017, prosecutors said, he caused the falsification of business records to cover up the arrangement with Daniels by misrepresenting the reimbursement as compensation for legal work. However you view that misrepresentation, it obviously had no impact on the outcome of the election. Yet Tribe, Elias, and other people bizarrely insist that it did.

"Two years shy of this country's 250th birthday," Rice University historian Douglas Brinkley said on CBS last Sunday, "12 New York jurors have convicted former president Donald Trump on 34 counts of falsifying business records in an attempt to influence the outcome of the 2016 presidential election." The dates of those records—11 invoices, 11 checks, and 12 ledger entries—ranged from February 14, 2017, to December 5, 2017. All of them were created after Trump was elected. You might expect that a historian would pay attention to chronological consistency.

You might expect the same from editorialists at major newspapers. Yet according to a May 30 Washington Post editorial, the jury found Trump "guilty of felony falsification of business records in order to influence the 2016 election." A New York Times editorial published the same day likewise claimed the jury found Trump "guilty of falsifying business records to prevent voters from learning about a sexual encounter that he believed would have been politically damaging." Barring time travel, of course, nothing Trump did in 2017 could have "influence[d] the 2016 election" or "prevent[ed] voters from learning about" that "sexual encounter" before they cast their ballots.

The same temporal difficulty is apparent in news coverage of Trump's trial. "Prosecutors will attempt to make the case that Trump falsified business records to tip the 2016 race," Al Jazeera said in April. "Trump faces 34 felony counts alleging that he falsified New York business records in order to conceal damaging information to influence the 2016 presidential election," NPR reported a week later.

Judging from some accounts of the trial's outcome, prosecutors succeeded in proving that the 2017 records reached back in time to influence the 2016 election. "Former President Donald Trump has been found guilty of 34 counts of falsifying business records to influence the outcome of the 2016 presidential election," NPR reported. The subhead of a Times story published the day after the verdict said, "The former president was convicted of 34 felony counts of falsifying business records to cover up a sex scandal that threatened to derail his 2016 campaign." The Associated Press reported that the jury found Trump "guilty of all 34 charges in a scheme to illegally influence the 2016 election through a hush money payment to a porn actor who said the two had sex."

These confounding characterizations reflect the bait and switch at the heart of the case against Trump. "We allege falsification of business records to the end of keeping information away from the electorate," Manhattan District Attorney Alvin Bragg said in January. "It's an election interference case." In his opening statement, lead prosecutor Matthew Colangelo claimed the case was about "election fraud, pure and simple."

There was nothing "pure and simple" about the case, which did not involve "election fraud" at all. Although the prosecutors repeatedly insinuated that there was something inherently criminal about trying to hide potentially damaging information from voters, that is not true. And although they averred that Cohen's payment to Daniels amounted to an illegal campaign contribution under the Federal Election Campaign Act (FECA), that interpretation of the statute is controversial. In any case, fronting the hush money did not constitute "election fraud," which is usually understood to mean interfering with the casting, counting, or reporting of votes.

Trump was not charged with violating FECA by soliciting Cohen's "contribution." The Justice Department declined to bring that case, probably because it would have been hard to prove that Trump "knowingly and willfully" violated the statute, given the fuzziness of the distinction between personal and campaign expenditures. Even if the deadline for prosecuting Trump under FECA had not passed, Bragg would have no authority to enforce that statute. So instead he resorted to an elaborate workaround that relied on various possible combinations of interacting statutes and questionable assumptions about Trump's knowledge and intent.

The FECA claim was just one of three dueling theories for treating Trump's alleged falsification of business records as a felony rather than a misdemeanor. The other two theories did not hinge on the assumption that the Daniels payment was illegal. And since the jurors were told they did not have to settle on any particular theory, it is not clear which one they found most compelling. Even if they split three ways on that crucial point, they were still allowed to reach a guilty verdict.

All of this is pretty confusing, so it is not surprising that many people have inaccurately described the meaning of the verdict, especially since Bragg and his underlings repeatedly misrepresented the nature of the case. But it is surprising that so many people who should know better have described the verdict in a way that could not possibly be true.

*CORRECTION: This post has been revised to clarify that Tribe was quoting Elias.

The post Laurence Tribe Bizarrely Claims Trump Won the 2016 Election by Falsifying Business Records in 2017 appeared first on Reason.com.

Last January, Manhattan District Attorney Alvin Bragg summed up his case against Donald Trump this way: "We allege falsification of business records to the end of keeping information away from the electorate. It's an election interference case."

That gloss made no sense, because the records at the center of the case—11 invoices, 11 checks, and 12 ledger entries that allegedly were aimed at disguising a hush-money reimbursement as payment for legal services—were produced after the 2016 presidential election. At that point, Michael Cohen, Trump's lawyer, had already paid porn star Stormy Daniels $130,000 to keep her from talking about her alleged 2006 sexual encounter with Trump, and Trump had already been elected. The prosecution's case against Trump, which a jury found persuasive enough to convict him on all 34 counts yesterday, was peppered with temporal puzzles like this one.

A New York Times editorial concedes that "many experts" have "expressed skepticism about the significance of this case and its legal underpinnings, which employed an unusual legal theory to seek a felony charge for what is more commonly a misdemeanor." Yet the Times also claims the jury found Trump "guilty of falsifying business records to prevent voters from learning about a sexual encounter that he believed would have been politically damaging." How did records created in 2017 "prevent voters from learning" about the Daniels tryst before they cast their ballots the previous year?

The editorial's characterization of Cohen's payment to Daniels is confounding for a similar reason. "A payoff like this is not illegal by itself," the Times concedes. "What makes it illegal is doctoring business records to mask its true purpose, which prosecutors said was to hide the story from the American people to help Mr. Trump get elected." Again, the "doctoring" of business records happened in 2017. Contrary to what the Times claims, it did not retroactively make the Daniels payment "illegal."

The Times also says the verdict "establishes that Mr. Trump committed crimes in hiding pertinent information about himself from the American people for the purpose of influencing the 2016 presidential election." The verdict does not establish that. Trump was not charged with breaking the law by instructing Cohen to pay off Daniels. And while the contentious characterization of that payment as an illegal campaign contribution figured in one theory for treating the falsification charges as felonies rather than misdemeanors, the other two theories did not hinge on the assumption that the payoff was illegal.

Since the jurors were instructed that they did not need to settle on any particular theory, it is not clear that they unanimously accepted the idea that Trump "committed crimes in hiding pertinent information about himself from the American people for the purpose of influencing the 2016 presidential election." That description, however, is consistent with the prosecution's dubious "election fraud" narrative, which falsely implied that "hiding pertinent information about himself" was inherently criminal.

Although it seems clear that the jury accepted that narrative, even the prosecutors sometimes forgot what they claimed the case was about. They argued that Trump violated an obscure, rarely invoked state law by conspiring with Cohen to influence the presidential election "by unlawful means." They further argued that Trump caused the falsification of business records with the intent of aiding or concealing that crime, which is the element that transformed the charges into felonies. But some versions of that theory were logically impossible.

According to one theory of "unlawful means," Trump facilitated a violation of New York tax law by allowing Cohen to falsely report his reimbursement as income. But since Cohen filed those allegedly fraudulent tax returns in 2018, after Trump had been president for more than a year, his misrepresentation could not possibly have helped Trump win the election.

Under another theory, Trump falsified business records to conceal the falsification of other business records, including the 1099-MISC forms in which the Trump Organization inaccurately described Cohen's reimbursement as income. Since the 1099 forms were issued after the election, it is hard to see how they could have been aimed at ensuring Trump's victory.

These logical difficulties were just one of several reasons to question the prosecution's case, which relied on convoluted theories involving interacting statutes and questionable assumptions about Trump's knowledge and intent. But instead of zeroing in on those weaknesses, Trump's lawyers, presumably at his behest, were determined to deny everything, starting with Daniels' story about sex with Trump at a Lake Tahoe hotel during a celebrity golf tournament in July 2006.

That strategy invited embarrassingly detailed testimony by Daniels, who described a presumptuous Trump abruptly disrobing while she was in the bathroom before engaging in a "brief," condomless sexual encounter "in the missionary position." Contrary to her previous accounts, Daniels implied that the sex was less than fully consensual, citing "an imbalance of power," noting the presence of a bodyguard at the door to Trump's hotel suite, saying Trump's failure to use a condom worried her, and describing her own mental state as hazy, although she added that she was not drunk and had not been drugged.

None of this was legally relevant. When it came to the questions of whether Trump had caused the falsification of business records and his intent in doing so, it did not matter exactly what happened in that hotel suite. Even if Daniels had made the whole thing up, Trump still would have been keen to keep her quiet, whether for personal reasons, business reasons, political reasons, or some combination of the three.

The defense team also insisted that Trump really thought he was paying Cohen for legal work, even though Trump had publicly admitted that he reimbursed Cohen for the Daniels payment. And Trump's lawyers disputed that he "knew about this payment" at the time, even though it defies belief to suppose that Cohen, who was eager to please Trump and conferred with him frequently, would have hatched this scheme on his own, or that he would have fronted $130,000 of his own money without the promise of reimbursement.

Whether Trump approved the misleading records related to Cohen's reimbursement, as Cohen claimed, is less clear. Trump's lawyers hammered at Cohen's credibility on that point, saying jurors should not trust a convicted felon, disbarred lawyer, and admitted liar with a powerful grudge against his former boss. But because they were also implausibly claiming that Cohen lied when he said Trump approved the Daniels payoff, the jurors may have discounted any doubts about the veracity of Cohen's account.

If Trump had been willing to concede some of the prosecution's allegations, his lawyers could have focused on the shaky legal argument for charging him with felonies. They not only failed to do that in a cogent way; they insisted on jury instructions that ruled out convicting Trump of misdemeanors rather than felonies.

"Instead of telling a simple story, Mr. Trump's defense was a haphazard cacophony of denials and personal attacks," defense attorney and former federal prosecutor Renato Mariotti observes. "That may work for a Trump rally or a segment on Fox News, but it doesn't work in a courtroom. Perhaps Mr. Trump's team was also pursuing a political or press strategy, but it certainly wasn't a good legal strategy. The powerful defense available to Mr. Trump's attorneys was lost amid all the clutter."

The post The Prosecution's Story About Trump Featured Several Logically Impossible Claims appeared first on Reason.com.

After deliberating for a little more than a day, a Manhattan jury on Thursday found Donald Trump guilty of falsifying 34 business records to aid or conceal "another crime," an intent that turns what would otherwise be misdemeanors into felonies. If you assumed that the jury's conclusions would be driven by political animus, this first-ever criminal conviction of a former president is the result you probably expected in a jurisdiction where Democrats outnumber Republicans by 9 to 1. But in legal terms, the quick verdict is hard to fathom.

That's not because there were so many counts to consider, each related to a specific invoice, check, or ledger entry allegedly aimed at disguising a hush-money reimbursement as payment for legal services. Once jurors accepted the prosecution's theory of the case, it was pretty much inevitable that they would find Trump guilty on all 34 counts. But that theory was complicated, confusing, and in some versions highly implausible, if not nonsensical. Given the puzzles posed by the charges, you would expect conscientious jurors to spend more than an afternoon, a morning, and part of another afternoon teasing them out.

Manhattan District Attorney Alvin Bragg's case against Trump stemmed from the $130,000 that Michael Cohen, then Trump's lawyer and fixer, paid porn star Stormy Daniels shortly before the 2016 presidential election to keep her from talking about her alleged 2006 sexual encounter with Trump. When Trump reimbursed Cohen in 2017, prosecutors said, he tried to cover up the arrangement with Daniels by pretending that he was paying Cohen, whom he had designated as his personal attorney, for legal work.

Cohen testified that Trump instructed him to pay off Daniels and approved the plan to mischaracterize the reimbursement. Cohen was the only witness who directly confirmed those two points, and the defense team argued that jurors should not trust a convicted felon, disbarred lawyer, and admitted liar with a powerful grudge against his former boss. But even without Cohen's testimony, there was strong circumstantial evidence that Trump approved the payoff and went along with the reimbursement scheme.

The real problem for the prosecution was proving that Trump falsified business records  with "an intent to commit another crime or to aid or conceal the commission thereof"—the element that was necessary to treat the misleading documents as felonies. Prosecutors said the other crime was a violation of Section 17-152, an obscure, little-used provision of the New York Election Law. Section 17-152 makes it a misdemeanor for "two or more persons" to "conspire to promote or prevent the election of any person to a public office by unlawful means." But prosecutors never settled on any particular explanation of "unlawful means," and Juan Merchan, the judge presiding over the trial, told the jurors they could find Trump guilty even if they could not agree on one.

According to one theory, Cohen made an excessive campaign contribution, thereby violating the Federal Election Campaign Act (FECA), when he fronted the money to pay Daniels. Cohen pleaded guilty to that offense in 2018 as part of an agreement that also resolved several other, unrelated federal charges against him. Cohen therefore had a strong incentive to accept the characterization of the Daniels payment as an illegal campaign contribution. While jurors heard about Cohen's guilty plea during the trial, CNN notes, Merchan instructed them that they should consider it only "to assess Cohen's credibility and give context to the events that followed, but not in determining the defendant's guilt."

It is unclear whether Trump violated FECA by soliciting Cohen's "contribution," a question that hinges on the fuzzy distinction between personal and campaign expenditures. Given the uncertainty on that point, it is plausible that Trump did not think the Daniels payment was illegal, which helps explain why he was never prosecuted under FECA: To obtain a conviction, federal prosecutors would have had to prove that he "knowingly and willfully" violated the statute.

The New York prosecutors said Cohen and Trump conspired to promote his election through "unlawful means." Under New York law, a criminal conspiracy requires "a specific intent to commit a crime." Trump's understanding of FECA was relevant in assessing whether he had such an intent, meaning he recognized the nondisclosure agreement with Daniels as "unlawful means." Trump's understanding of FECA therefore also was relevant in assessing whether he falsified business records with the intent of covering up "another crime."

That theory assumed three things: 1) that Trump recognized the Daniels payment as a FECA violation; 2) that he knew about Section 17-152, a moribund, rarely invoked law; and 3) that he anticipated how New York prosecutors might construe Section 17-152 in light of FECA. The first assumption is questionable, the second is unlikely, and the third is highly implausible. Yet you would have to believe all three things to conclude that Trump approved a plan to misrepresent his reimbursement of Cohen as payment for legal services with the intent of covering up a FECA-dependent violation of Section 17-152.

According to a second theory, Trump facilitated a violation of New York tax law by allowing Cohen to falsely report his reimbursement as income. Although that violation is described as "criminal tax fraud," Merchan said it did not matter that Cohen's alleged misrepresentation resulted in a higher tax bill. The judge noted that it is illegal to submit "materially false or fraudulent information in connection with any return," regardless of whether that information benefits the taxpayer.

Putting aside that counterintuitive definition of tax fraud, this theory required believing that Trump, when he reimbursed Cohen, not only contemplated what would happen when Cohen filed his returns the following year but also thought that "unlawful means" somehow would influence an election that had already happened. The logic here was hard to follow.

Likewise with the third theory of "unlawful means." Prosecutors suggested that Trump's falsification of business records was designed to aid or conceal the falsification of other business records. CNN reported that the latter records could involve, among other things, the corporate bank account that Cohen created to pay Daniels, Cohen's transfer of the money to Daniels' lawyer, or the Trump Organization's 1099-MISC forms for the payments to Cohen.

Since the 1099 forms were issued after the election, it is hard to see how they could have been aimed at ensuring Trump's victory. And although the other records predated the election, this theory involves a weird sort of bootstrapping.

Prosecutors said the records related to Cohen's dummy corporation, for example, were falsified because they misrepresented the nature and purpose of that entity, which by itself is a misdemeanor. That misdemeanor was the "unlawful means" by which Trump allegedly sought to promote his election, another misdemeanor. And because Trump allegedly tried to conceal the latter misdemeanor by falsifying the records related to Cohen's reimbursement, those records are 34 felonies instead of 34 misdemeanors.

The theory that Trump falsified business records to conceal the falsification of business records was "so circular as to produce vertigo in the jury room," George Washington University law professor Jonathan Turley said. If so, the jurors seem to have quickly recovered from their queasiness. They accepted either this dubious theory, one of the others, or possibly some combination of them. Since unanimity was not required, it is possible that some jurors bought the FECA theory, some preferred the double falsification theory, and some concluded that the case was clinched by a tax fraud with no pecuniary benefit.

To disguise the difficulties with its dueling theories, the prosecution averred that Trump committed "election fraud" when he directed Cohen to pay Daniels for her silence, thereby concealing information that voters might have deemed relevant in choosing between him and Hillary Clinton. "This was a planned, coordinated, long-running conspiracy to influence the 2016 election, to help Donald Trump get elected through illegal expenditures, to silence people who had something bad to say about his behavior," lead prosecutor Matthew Colangelo told the jury in his opening statement. "It was election fraud, pure and simple."

During his summation, prosecutor Joshua Steinglass called the nondisclosure agreement with Daniels "a subversion of democracy." He said it was an "effort to hoodwink the American voter." He told "a sweeping story about a fraud on the American people," as The New York Times put it. "He argue[d] that the American people in 2016 had the right to determine whether they cared that Trump had slept with a porn star or not, and that the conspiracy prevented them from doing so."

Did the American people have such a right? If so, Trump would have violated it even he had merely asked Daniels to keep quiet, perhaps by appealing to her sympathy for his wife. If Daniels had agreed, the result would have been the same. As the prosecution told it, that still would amount to "election fraud," even though there is clearly nothing illegal about it.

The jurors evidently bought this cover story. During deliberations, they revisited the testimony of former National Enquirer publisher David Pecker, a Trump buddy whom prosecutors implicated in that "long-running conspiracy to influence the 2016 election." Pecker's arrangement with Trump, which he described as mutually beneficial, was not the basis for any of the charges against Trump. But his testimony reinforced Bragg's legally dubious claim that Trump engaged in "election interference" when he sought to avoid bad press.

Pecker said he agreed to help Trump in several ways. He would run positive stories about Trump and negative stories about his opponents. He also would keep an eye out for potentially damaging stories about Trump and alert Cohen to them. The latter promise resulted in two agreements that the Enquirer negotiated with Dino Sajudin, a former Trump Tower doorman who falsely claimed that Trump had fathered a child with a woman hired to clean the building, and former Playboy Playmate Karen McDougal, who described a year-long affair with Trump. After paying $30,000 to Sajudin and $150,000 to McDougal for exclusive rights to their stories, the Enquirer sat on them.

Again, Trump was not charged in connection with any of this, and much of what Pecker did was constitutionally protected, albeit journalistically unethical. The fact that the jury nevertheless wanted to be read excerpts from Pecker's testimony suggests they accepted the prosecution's commodious understanding of "election fraud," which did not necessarily require any actual lawbreaking, let alone any attempt to interfere with the casting, counting, or reporting of votes.

In short, there was a glaring mismatch between the charges against Trump and what prosecutors described as the essence of his crime, which is not a crime at all. Since they could not charge him with "election fraud" merely because he tried to hide embarrassing information, they instead built a convoluted case that relied on interacting statutes and questionable assumptions about Trump's knowledge and intent.

That approach suggests several possible grounds for appeal. It is not clear, for example, whether a violation of federal campaign finance regulations, even when filtered through Section 17-152, counts as "another crime" under the state law dealing with falsification of business records. Nor is it clear that Section 17-152 applies in the context of a federal election, where federal law generally pre-empts state law. There are also questions about what is required to prove that Trump had "an intent to defraud" when he signed the checks to Cohen.

Bragg's predecessor, Cyrus R. Vance Jr., after lengthy consideration of possible state charges based on the Daniels payment, decided they were too legally iffy to pursue. Mark Pomerantz, a former prosecutor in Vance's office who worked on the Trump investigation, concluded that "such a case was too risky under New York law." In a 2023 book, Pomerantz noted that "no appellate court in New York had ever upheld (or rejected) this interpretation of the law."

Last week, New York Times columnist David French worried about the consequences of a conviction that is overturned on appeal. "Imagine a scenario in which Trump is convicted at the trial, Biden condemns him as a felon and the Biden campaign runs ads mocking him as a convict," he wrote. "If Biden wins a narrow victory but then an appeals court tosses out the conviction, this case could well undermine faith in our democracy and the rule of law." In his desperation to prevent Trump from reoccupying the White House, Bragg has already accomplished that.

The post Trump's Conviction Suggests Jurors Bought the Prosecution's Dubious 'Election Fraud' Narrative appeared first on Reason.com.

Sylvia Gonzalez, a former Castle Hills, Texas, city council member, plausibly alleges that she was arrested on a trumped-up charge in retaliation for conduct protected by the First Amendment. So does Priscilla Villarreal, an independent journalist in Laredo, Texas. But in backing up that claim, Gonzalez, whose case will soon be decided by the Supreme Court, faces a problem that Villarreal does not: It is hard to say how often people engage in the conduct that police cited to justify her arrest, which involved putting a petition in her personal folder during a city council meeting. Villarreal, by contrast, was arrested for asking questions, something that journalists across the country do every day.

Last January, the U.S. Court of Appeals for the 5th Circuit nevertheless ruled, in an opinion by Judge Edith Jones that provoked four sharp dissents authored or joined by seven of her colleagues, that Villarreal's arrest was not "obviously unconstitutional." Thirteen briefs supporting Villarreal's petition for Supreme Court review—submitted by an ideologically diverse mix of groups and individuals, including organizations ranging from the Manhattan Institute to the Constitutional Accountability Center—underline the chilling implications of that astonishing conclusion.

"No right is more fundamental to the practice of journalism than the one the Fifth Circuit declined to recognize: the right to ask public officials for information," a brief submitted by the Reporters Committee for Freedom of the Press and 21 news organizations notes. They urge the Supreme Court to resolve the "chilling uncertainty" created by the appeals court's decision and "reaffirm the fundamental proposition that '[a] free press cannot be made to rely solely upon the sufferance of government to supply it with information.'"

Villarreal, who is represented by the Foundation for Individual Rights and Expression, is asking the Supreme Court to uphold that principle, which her arrest blatantly violated. Her alleged crime, the Institute for Justice notes, consisted of "peacefully asking a police officer to corroborate information for two developing stories—a routine due-diligence and newsgathering practice used by journalists across the country." The two stories, which Villarreal posted on her locally popular Facebook page, involved a public suicide and a fatal car crash. Villarreal asked a Laredo police officer to confirm information about those incidents that Villarreal had received from other sources. By doing that, police and prosecutors claimed, Villarreal committed two felonies.

To justify those charges, police cited Section 39.06(c) of the Texas Penal Code, an obscure, rarely invoked law that applies to someone who "solicits or receives from a public servant" information that "has not been made public" with the "intent to obtain a benefit." The claim that Villarreal had violated that law was absurd for several reasons.

First, Section 39.06(c), which deals with "misuse of official information," is part of a chapter addressing "abuse of office." Its roots go back to a 1973 law that applied to "a public servant" who "acquires or aids another to acquire a pecuniary interest in any property, transaction, or enterprise that may be affected by" information that "has not been made public" but to which "he has access in his official capacity." The statute also covered "a public servant" who "speculates or aids another to speculate on the basis of the information." Over the years, legislators broadened the definition of the offense, reclassified it as a felony, and expanded the law beyond government officials. But in light of its history and statutory context, Section 39.06(c) is clearly aimed at curtailing official corruption, not journalism.

Second, the Texas Penal Code defines "benefit" as "anything reasonably regarded as economic gain or advantage." What "economic gain or advantage" did Villarreal allegedly seek to obtain by asking a cop about a suicide and an accident? According to the arrest affidavits, it was an increase in her Facebook traffic. Jones' opinion, which drips with contempt for Villarreal's "journalistic style," notes that she "boasts over one hundred thousand Facebook followers and a well-cultivated reputation, which has engendered publicity in the New York Times, free meals 'from appreciative readers,' 'fees for promoting a local business,' and 'donations for new equipment necessary to her citizen journalism efforts.'" This sweeping definition of "benefit" would apply to any journalist who attracts readers and/or earns money by publishing information that previously "has not been made public."

Third, Section 39.06 defines "information that has not been made public" as "any information to which the public does not generally have access" that is also "prohibited from disclosure" under the Texas Public Information Act (TPIA). The arrest affidavits did not address the latter requirement at all. The 5th Circuit suggested the information that Villarreal obtained was covered by Section 552.108(a)(1) of the TPIA, which says government officials do not have to disclose information when doing so might compromise an ongoing investigation. While law enforcement agencies frequently invoke that vague provision, the information it covers is not "prohibited from disclosure." The TPIA explicitly gives agencies the discretion to release information even when they are not required to do so.

The MuckRock Foundation, which "has helped thousands of journalists, professionals, and ordinary citizens request, share, and understand public records," notes that Laredo's reading of Section 39.06(c) would lead to "the absurd result of imposing liability not only on those who seek 'confidential' information, but on those who request information that the government may, but need not, make public." Under that interpretation, anyone who asks for information that is deemed to be covered by a TPIA exception is committing a felony. As a brief from half a dozen journalists (including me) explains, Texas agencies that don't want to disclose information frequently seek support from the state attorney general's office, which in 2015 "issued over 7,000 rulings based on § 552.108(a)(1) alone." Yet the thousands of people whose TPIA requests are rejected each year have never been "arrested or prosecuted for their requests."

Laredo cops investigated Villarreal for months, so they had plenty of time to consider whether their interpretation of Section 39.06(c) was reasonable. So did the prosecutors who signed off on the case. Yet they did not even bother to present a plausible argument that Villarreal's conduct met the elements of this offense, and they were unfazed by the obvious First Amendment problems with criminalizing basic journalism. The charges were ultimately dismissed by a judge who deemed Section 39.06(c) unconstitutionally vague.

These cops and prosecutors—who, like Jones, were irked by Villarreal's "journalistic style"—were determined to pin charges on her without regard to statutory requirements or constitutional constraints. Yet according to the 5th Circuit, they cannot be held accountable for their vindictive lawlessness because it was not "clearly established" that arresting a journalist for practicing journalism was unconstitutional. Since they supposedly had no way of knowing that, they received qualified immunity.

The Supreme Court grafted qualified immunity onto 42 USC 1983, a federal law that authorizes people to sue government officials who violate their constitutional rights. The doctrine is supposedly designed to protect officials from unanticipated liability for "split-second" decisions in situations where they have little opportunity for careful reflection. That rationale, the Americans for Prosperity Foundation notes, does not apply to the sort of "intentional and slow-moving infringement of First Amendment rights" that Villarreal's case exemplifies. The protections offered by Section 1983, the brief says, "come to nothing where state actors may purposefully infringe First Amendment rights and then rely on prolix state law to trigger qualified immunity, claiming they did not know any better."

In this case, that claim is risible. "Villarreal's arrest obviously violated the Constitution," the Institute for Justice notes. "No reasonable government official would think the First Amendment permits criminalizing plain speech or routine journalism."

Contrary to what the 5th Circuit held, the Young America's Foundation and the Manhattan Institute say, it has been "clearly established for over 50 years" that "journalists and citizens" have a First Amendment right to "ask questions of their government officials." The Supreme Court has upheld that right in a line of decisions beginning with Branzburg v. Hayes in 1972. In that case, the Court rejected the idea that "news gathering does not qualify for First Amendment protection," without which "freedom of the press could be eviscerated."

Seven years later in Smith v. Daily Mail, the Court ruled that West Virginia violated the First Amendment when it prohibited newspapers from publishing the names of juvenile offenders without judicial permission. The justices held that the First Amendment protects "routine newspaper reporting techniques" and that the government may not "punish the truthful publication" of "lawfully obtained" information. As dissenting 5th Circuit Judge James E. Graves Jr. noted, the Supreme Court "has made clear that the First Amendment protects the publication of information obtained via 'routine newspaper reporting techniques'—which include asking for the name of a crime victim from government workers not clearly authorized to share such information."

These longstanding precedents are not the only reason the cops who arrested Villarreal should have known better. As the brief I joined points out, police officers across the country are accustomed to fielding questions from reporters, and department policies frequently encourage them to "work in cooperation with the media," as a general order to Washington, D.C., officers puts it. "Based on the TPIA, police department regulations, officer training on responding to press inquiries, and personal experience dealing with reporters," the brief says, "a reasonable officer would know that journalists are permitted to ask police officers the names of accident and suicide victims. A reasonable officer would know that reporters ask for such information every day."

You might think that Villarreal's arrest, which relied on a quirky reading of a little-used law, poses little realistic threat to journalists in Texas or elsewhere. But the briefs supporting Villarreal emphasize that police can always find an excuse to arrest journalists who annoy them. The brief I joined describes a couple of examples: the 2023 arrest of NewsNation reporter Evan Lambert for "trespassing" by covering a governor's press conference in Ohio and the 2020 arrest of radio reporter Josie Huang for "obstructing a peace officer" by using her phone to record an encounter between protesters and Los Angeles County sheriff's deputies.

"Retaliatory arrests have become an increasingly common occurrence," the Law Enforcement Action Partnership (LEAP) notes. "This trend is a byproduct of the ever-growing size of modern criminal codes." Thanks to those proliferating prohibitions, Justice Neil Gorsuch has observed, "almost anyone can be arrested for something." A cop "who may be inclined to punish a disfavored speaker—such as a journalist, as here—can therefore readily find a minor offense they committed and use that to justify an arrest," LEAP says. If police are emboldened to harass journalists this way, it warns, retaliatory arrests will become even more common.

That threat is especially acute for reporters who do not have the backing of a professional news outlet. Independent journalists Avi Adelman and Steven Monacelli, who "have been arrested or detained by police officers while reporting on law enforcement's public performance of their duties," note that increasingly strict police control of information may force a reporter to rely on the sort of "backchannel source" that Jones condemned Villarreal for using. "If using alternative sources exposes journalists to the risk of official retribution," Adelman and Monacelli warn, "journalists will become little more than conduits for government public relations copy."

Jones dismissed the idea that Villarreal is "a martyr for the sake of journalism." She seems to think independent reporters like Villarreal don't qualify as "real" journalists because they don't follow the rules that "mainstream, legitimate media outlets" do. In addition to criticizing Villarreal's use of a "backchannel source," a standard journalistic practice, Jones faulted her for "capitaliz[ing] on others' tragedies to propel her reputation and career," which is an apt, if cynical, description of what professional reporters routinely do. These criticisms make you wonder if Jones has ever watched the local news or noticed that "mainstream, legitimate media outlets" often carry stories that cite anonymous government sources.

Contrary to Jones' take, the critics who are urging the Supreme Court to overrule the decision she wrote include "mainstream, legitimate media outlets" such as ABC, NBC, The Atlantic, The Boston Globe, The New York Times, and The Washington Post. It is possible they know a little bit more about how journalism works than Jones does.

The post These Strange Bedfellows Want SCOTUS To Remind the 5th Circuit That Journalism Is Not a Crime appeared first on Reason.com.

To convert a single hush payment into 34 state felonies in the New York case against former President Donald Trump, prosecutors are relying on several interacting statutes, which makes their legal theory convoluted and confusing. Juan Merchan, the judge presiding over Trump's trial, added to the confusion on Wednesday when he instructed the jurors on the conclusions they must reach to find Trump guilty.

Shortly before the 2016 election, Michael Cohen, then a lawyer working for Trump, paid porn star Stormy Daniels $130,000 to keep her from talking about her alleged 2006 sexual encounter with Trump. When Trump reimbursed Cohen in 2017, prosecutors say, he caused the falsification of 34 business records—11 invoices, 11 checks, and 12 ledger entries—that were aimed at disguising the reimbursement as payment for legal services.

Ordinarily, falsification of business records, which requires "an intent to defraud," is a misdemeanor. But it becomes a felony when the defendant's "intent to defraud" includes "an intent to commit another crime or to aid or conceal the commission thereof." The prosecution's theory of "another crime" relies on Section 17-152 of the New York Election Law—a statute so obscure that experts said they had never seen another criminal case based on it. That provision makes it a misdemeanor for "two or more persons" to "conspire to promote or prevent the election of any person to a public office by unlawful means."

Merchan laid out three possible candidates for "unlawful means" to which prosecutors have alluded. One is debatable, while the other two make little or no sense in the context of Section 17-152. Merchan said the jurors need not settle on any particular theory of "unlawful means," provided they agree that Trump was trying to aid or conceal a violation of Section 17-152.

By fronting the hush money, prosecutors say, Cohen made an excessive campaign contribution, thereby violating the Federal Election Campaign Act (FECA). Cohen pleaded guilty to that offense in 2018 as part of an agreement that also resolved several other, unrelated federal charges against him. While jurors heard about that guilty plea during the trial, CNN notes, Merchan instructed them that they should consider it only "to assess Cohen's credibility and give context to the events that followed, but not in determining the defendant's guilt."

It is unclear whether Trump violated FECA by soliciting Cohen's "contribution," a question that hinges on the fuzzy distinction between personal and campaign expenditures. Given the uncertainty on that point, it is plausible that Trump did not think the Daniels payment was illegal, which helps explain why he was never prosecuted under FECA: To obtain a conviction, federal prosecutors would have had to prove that he "knowingly and willfully" violated the statute.

The New York prosecutors say Cohen and Trump conspired to promote his election through "unlawful means." Under New York law, a criminal conspiracy requires "a specific intent to commit a crime." Trump's understanding of FECA is relevant in assessing whether he had such an intent, meaning he recognized the nondisclosure agreement with Daniels as "unlawful means." Trump's understanding of FECA therefore also is relevant in assessing whether he falsified business records with the intent of concealing "another crime."

This theory assumes three things: 1) that Trump recognized the Daniels payment as a FECA violation; 2) that he knew about Section 17-152, a moribund, rarely invoked law; and 3) that he anticipated how New York prosecutors might construe Section 17-152 in light of FECA. The first assumption is questionable, the second is unlikely, and the third is highly implausible. Yet you would have to believe all three things to conclude that Trump approved a plan to misrepresent his reimbursement of Cohen as payment for legal services with the intent of covering up a FECA-dependent violation of Section 17-152.

The other two theories that Merchan mentioned seem even less promising.

According to one theory, Trump was facilitating a violation of New York tax law by allowing Cohen to falsely report his reimbursement as income. Although that violation is described as "criminal tax fraud," Merchan said it does not matter that Cohen's alleged misrepresentation resulted in a higher tax bill. The judge noted that it is illegal to submit "materially false or fraudulent information in connection with any return," regardless of whether that information benefits the taxpayer.

Putting aside that counterintuitive definition of tax fraud, this theory requires believing that Trump, when he reimbursed Cohen, not only contemplated what would happen when Cohen filed his returns the following year but also thought that "unlawful means" somehow would influence an election that had already happened. The logic here is hard to follow.

Likewise with the third theory of "unlawful means." Prosecutors say Trump's falsification of business records was designed to aid or conceal the falsification of other business records. CNN reports that the latter records could involve, among other things, the corporate bank account that Cohen created to pay Daniels, Cohen's transfer of the money to Daniels' lawyer, or the Trump Organization's 1099-MISC forms for the payments to Cohen.

Since the 1099 forms were issued after the election, it is hard to see how they could have been aimed at ensuring Trump's victory. And although the other records predated the election, this theory involves a weird sort of bootstrapping.

Prosecutors say the records related to Cohen's dummy corporation, for example, were falsified because they misrepresented the nature and purpose of that entity, which by itself is a misdemeanor. That misdemeanor was the "unlawful means" by which Trump allegedly sought to promote his election, another misdemeanor. And because Trump allegedly tried to conceal the latter misdemeanor by falsifying the records related to Cohen's reimbursement, those records are 34 felonies instead of 34 misdemeanors.

"One of the three crimes is so circular as to produce vertigo in the jury room," George Washington University law professor Jonathan Turley observes. "The prosecutors zapped a dead misdemeanor back into life by claiming a violation under New York's election law 17-152. The argument is that the crime was committed to further another crime as an unlawful means to influence the election. However, that other crime can be the falsification of business records. So the jury (or some jurors, at least) could find that some documents were falsified as an unlawful means of falsifying other documents."

Because Merchan said jurors need not agree on which of these theories has been proven beyond a reasonable doubt, the rationale for convicting him is apt to be muddled. "The judge has ruled that the jury does not have to agree on what actually occurred in the case," Turley says. "Merchan ruled that the government had vaguely referenced three possible crimes that constitute the 'unlawful means' used to influence the election: a federal election violation, the falsification of business records, and a tax violation. The jurors were told that they could split on what occurred, with four jurors accepting each of the three possible crimes in a 4-4-4 split. The court would still consider that a unanimous verdict so long as they agree that it was in furtherance of some crime."

Merchan's instructions did include a caveat that could help Trump. "He said mere knowledge of a conspiracy does not make [the] defendant a co-conspirator," Fox News correspondent Lydia Hu notes. "Prosecutors must prove intent. Also, being present with others when they form a conspiracy does not mean that the defendant is a part of the conspiracy."

On its face, Cohen's testimony regarding Trump's participation in the alleged conspiracy seems crucial in establishing his intent. Cohen said Trump instructed him to pay Daniels. He also said Trump Organization Allen Weisselberg described the plan to reimburse Cohen during a January 2021 meeting, and Trump did not object. Cohen was the only witness who directly testified on those points, and Trump's lawyers argued that he cannot be trusted, noting that he is a convicted felon, disbarred lawyer, and admitted liar with a powerful grudge against his former boss.

Merchan said "the jury cannot convict Trump on the testimony of Michael Cohen alone because he is an accomplice, but they can use it if they corroborate it with other evidence," CNN notes. "Even if you find the testimony of Michael Cohen to be believable," Merchan said, "you may not convict the defendant solely upon that testimony unless you also find it's corroborated by other evidence." The other evidence is circumstantial. It includes testimony suggesting that Trump was worried about the impact that Daniels' story would have on the election, that he conferred regularly with Cohen, and that he was a proud penny-pincher who never would have paid Cohen without knowing exactly what it was for.

That evidence supports the inference that Trump knew he was reimbursing Cohen for the Daniels payment (which he has publicly admitted). It also supports the idea that Trump recognized that payment as a campaign expenditure and therefore an illegal contribution. But it does not prove that second claim beyond a reasonable doubt, which helps explain why the prosecution offered jurors two other possible theories of "unlawful means." If they are squeamish about the FECA theory, they can instead rely on the tax theory, despite its temporal difficulties, or they can accept the idea that Trump fabricated business records to conceal the fabrication of business records, even though that proposition makes the mind reel.

Since the jurors do not have to agree on the nature of Trump's "unlawful means," Merchan's instructions invite them to convict him based on a hodgepodge of three dubious theories. But if each of these theories is faulty, mixing them together cannot compensate for their weaknesses.

The post Trump Jury Instructions Invite Conviction Based on a Hodgepodge of Dubious Theories appeared first on Reason.com.

"We have pardoned tens of thousands of people with federal convictions for simple marijuana possession," Vice President Kamala Harris bragged on Thursday. It was not the first time she had offered that estimate, which she also cited during an appearance in South Carolina last February and at a "roundtable conversation about marijuana reform" the following month.

Where did Harris get that number? From thin air, it seems. "While Harris said 'tens of thousands' have been pardoned under President Joe Biden's October 2022 and December 2023 clemency proclamations," Marijuana Moment noted in February, "the Justice Department estimates that roughly 13,000 people have been granted relief under the executive action." And only a tiny percentage of those people have bothered (or managed) to obtain evidence of their pardons: This week the Justice Department reported that "the Office of the Pardon Attorney has issued 205 certificates of pardon" to people covered by Biden's proclamations.

In October 2022, President Joe Biden announced pardons for people who had possessed marijuana in violation of 21 USC 844 or Section 48–904.01(d)(1) of the D.C. Code. That proclamation applied to "all current United States citizens and lawful permanent residents" who had "committed the offense of simple possession of marijuana" on or before October 6.

According to a count by the U.S. Sentencing Commission (USSC), about 7,500 citizens and 1,200 "resident/legal alien offenders" (only some of whom would be eligible for pardons) were convicted of marijuana possession under 21 USC 844 from FY 1992 through FY 2021. Those numbers include some people who also were convicted of other offenses.

That count did not include D.C. Code violations. "We estimate that over 6,500 people with prior federal convictions for simple possession of marijuana and thousands of such convictions under D.C. law could benefit from this relief," a White House official said during a press background call on the day Biden announced the pardons.

In December 2023, Biden expanded the pardons to include people who had violated either of two additional laws covering attempted possession (21 USC 846 and Section 48-904.09 of the D.C. Code) or federal regulations prohibiting marijuana possession in specific locations such as "Federal properties or installations." That proclamation also extended the cutoff for violations by another year or so. At the time, Harris said the additional pardons would help "thousands of people."

So how did Harris arrive at "tens of thousands"? Even if you include people who committed these offenses prior to FY 1992, there would have to be about 10,000 of them who are still alive to justify Harris' estimate.

The USSC found fewer than 9,000 such cases over three decades, and Biden's expansion may have added a few thousand more. So going back a couple more decades would not do the trick, even if you assume that the annual numbers are about the same over time, which we know is not true: The USSC count included years when the number of federal sentences for simple marijuana possession rose and fell precipitously. Overall, the annual number of marijuana arrests (the vast majority under state law) was much lower in the 1960s and '70s than it was in the period covered by the USSC analysis. And if you go back that far, you are including many people busted for possession who are no longer with us.*

Harris' exaggeration reflects the Biden administration's general tendency to fib about the extent of its "marijuana reform" while trying to motivate younger voters whose turnout could be crucial to the president's reelection. In his State of the Union address on March 8, for example, Biden falsely claimed that he was "expunging thousands of convictions."

Biden's marijuana pardons do not entail expungement because it is not possible under current federal law. As the Justice Department notes, a pardon "does not signify innocence or expunge the conviction." So it is also not true that Biden's clemency "lifts barriers to housing, employment, and educational opportunities for thousands of people with prior convictions under federal and D.C. law for simple marijuana possession," as inaptly named "fact sheets" from the White House claimed in February 2023, September 2023, and April 2024. Likewise for Biden's recent claim that he is "lift[ing] barriers to housing, employment, small business loans, and so much more for tens of thousands of Americans," which combines two kinds of hyperbole.

During his 2020 campaign, Biden promised to "decriminalize the use of cannabis." But his pardons did not accomplish that either. Without new legislation, simple possession will remain a federal offense punishable by a minimum $1,000 fine and up to a year in jail. Biden and Harris have muddied that point by saying his pardons are based on the premise that "no one should be jailed for simply using" marijuana, as Biden said in March, or that "no one should go to jail for smoking weed," as Harris put it on Thursday.

Those formulations also imply that low-level marijuana arrests commonly result in incarceration, which is not true. The USSC reported that "no offenders" covered by Biden's October 2022 proclamation were in federal Bureau of Prisons custody as of the previous January. And since those pardons excluded people who had been convicted of growing or distributing marijuana, they did not free a single federal prisoner.

Biden also has misrepresented the significance of moving marijuana from Schedule I to Schedule III of the Controlled Substances Act, which he describes as a "monumental" accomplishment. That change, which the Drug Enforcement Administration formally proposed this week, would facilitate medical research and allow state-licensed marijuana suppliers to deduct standard business expenses when they file their federal tax returns—a big financial benefit to the cannabis industry. But it otherwise would leave federal pot prohibition essentially unchanged, which is how Biden wants it.

For a longtime drug warrior who supposedly has seen the error of his ways but nevertheless opposes marijuana legalization, appealing to voters who overwhelmingly favor it is a tough sell. As Harris' pardon prevarication illustrates, that pitch requires obscuring the truth in ways small and large.

*Addendum: "I share your concerns about hyperbole around the number of pardons (and all the other marijuana reform hype)," Douglas Berman, a sentencing expert at the Ohio State University's Moritz College of Law, says in an email. He nevertheless suggests that "motivated math" could get Harris to a bit more than 20,000 simple possession convictions. That calculation would hinge on including D.C. arrests from the mid-1970s on and assuming about 15 percent resulted in convictions, which Berman says is "reasonable for a mid-sized city." But "this VP-friendly accounting," he notes, "is entirely back of the envelope," which he sees as "a big problem in this space." And Harris said she was talking about "federal convictions for simple marijuana possession," which implies convictions under 21 USC 844, 21 USC 846, and location-specific federal regulations.

[This post has been updated with additional observations about the impact of Biden's pardons.]

The post Kamala Harris Implausibly Claims Biden's Marijuana Pardons Number in the 'Tens of Thousands' appeared first on Reason.com.

President Joe Biden describes the Drug Enforcement Administration's proposal to reclassify marijuana under federal law as "monumental." How so? "It's an important move toward reversing longstanding inequities," Biden claims in a video posted on Thursday. "Today's announcement builds on the work we've already done to pardon a record number of federal offenses for simple possession of marijuana, and it adds to the action we've taken to lift barriers to housing, employment, small business loans, and so much more for tens of thousands of Americans."

Even allowing for 60 days of public comment and review of a final rule by Congress and the Office of Management and Budget, marijuana's rescheduling could be finalized before the presidential election. And even if it does not take effect before then, Biden is hoping the move will help motivate younger voters whose turnout could be crucial to his re-election. But he also had better hope those voters are not paying much attention to the practical consequences of rescheduling marijuana, which are much more modest than his rhetoric implies.

"Look, folks," Biden says in the video, "no one should be in jail merely for using or possessing marijuana. Period. Far too many lives have been upended because of [our] failed approach to marijuana, and I'm committed to righting those wrongs." Yet rescheduling marijuana will not decriminalize marijuana use, even for medical purposes. It will not legalize state-licensed marijuana businesses or resolve the growing conflict between federal prohibition and state laws that authorize those businesses. It will not stop the war on weed or do much to ameliorate the injustice it inflicts.

In accordance with a recommendation that the Department of Health and Human Services (HHS) made last August, the DEA plans to move marijuana from Schedule I of the Controlled Substances Act, a list of completely prohibited drugs, to Schedule III, which includes prescription medications such as ketamine, Tylenol with codeine, and anabolic steroids. Schedule I supposedly is reserved for drugs with a high abuse potential and no accepted medical applications that cannot be used safely even under a doctor's supervision.

When Biden directed HHS to review marijuana's legal status in October 2022, he noted that "we classify marijuana at the same level as heroin" and treat it as "more serious than fentanyl," which "makes no sense." On Thursday, he likewise noted that "marijuana has a higher-level classification than fentanyl and methamphetamine—the two drugs driving America's overdose epidemic."

Biden is right that marijuana's current classification makes no sense, as critics have been pointing out for half a century and as HHS belatedly acknowledged in explaining the rationale for rescheduling. HHS found "credible scientific support" for marijuana's use in the treatment of pain, nausea and vomiting, and "anorexia related to a medical condition." It also noted that "the risks to the public health posed by marijuana are low compared to other drugs of abuse," such as heroin (Schedule I), cocaine (Schedule II), benzodiazepines like Valium and Xanax (Schedule IV), and alcohol (unscheduled).

Although "abuse of marijuana produces clear evidence of harmful consequences, including substance use disorder," HHS said, they are "less common and less harmful" than the negative consequences associated with other drugs. It concluded that "the vast majority of individuals who use marijuana are doing so in a manner that does not lead to dangerous outcomes to themselves or others."

According to the DEA's proposed rule, Attorney General Merrick Garland, who holds the ultimate authority to reschedule drugs under the CSA, "concurs with HHS's conclusion" that marijuana has currently accepted medical uses. Garland also "concurs with" the assessment that "marijuana has a potential for abuse less than the drugs or other substances in schedules I and II." And he agrees that "the abuse of marijuana may lead to moderate or low physical dependence, depending on frequency and degree of marijuana exposure."

Those conclusions are "monumental" in the sense that HHS, the DEA, and the Justice Department are finally acknowledging what most Americans already knew. Abandoning the pretense that marijuana meets the criteria for Schedule I represents progress in that sense, although it comes after decades of legal wrangling in which HHS and the DEA took the opposite position, at a time when 38 states have legalized medical use of marijuana, two dozen have taken the further step of legalizing recreational use, and an overwhelming majority of Americans oppose pot prohibition.

In practical terms, the two main benefits of moving marijuana to Schedule III are fewer regulatory barriers to medical research and a financial boon to state-licensed cannabis suppliers, who will no longer be barred from deducting standard business expenses when they file their federal tax returns. But when Biden calls it "an important move toward reversing longstanding inequities" and links it to "righting [the] wrongs" suffered by cannabis consumers, he is promising more than rescheduling can possibly deliver.

Although Biden promised to "decriminalize the use of cannabis" during his 2020 campaign, rescheduling does not do that. Nor do the pardons he touts. Despite those two moves, low-level marijuana possession will remain a federal offense punishable by a minimum $1,000 fine and up to a year in jail. Only Congress can change that. Biden has invested little, if any, effort in urging it to do so, and he opposes outright federal legalization based on "gateway drug" concerns that pot prohibitionists have been voicing since the 1950s.

Neither rescheduling nor pardons will remove the unfair "barriers" that Biden decries. Although Biden claims he is "expunging thousands of convictions," that is not true, since pardons do not entail expungement. Nor do pardons eliminate the various legal disabilities associated with marijuana convictions, cannabis consumption, or participation in the cannabis industry, which include loss of Second Amendment rights (a policy that Biden defends) and ineligibility for admission, legal residence, and citizenship under immigration law.

As his pardons reflect, Biden's concern about unjust incarceration is curiously limited. Because those pardons did not apply to people convicted of growing or selling marijuana, they did not free a single federal prisoner. Neither will rescheduling.

With marijuana in Schedule III, state-licensed marijuana businesses will remain criminal enterprises under federal law, albeit subject to less draconian penalties. "If marijuana is transferred into schedule III," the DEA notes, "the manufacture, distribution, dispensing, and possession of marijuana would remain subject to the applicable criminal prohibitions of the CSA."

For that reason, rescheduling is unlikely to reassure financial institutions that are leery of serving marijuana businesses because it could expose them to devastating criminal, civil, and regulatory penalties. "Because marijuana would remain a controlled substance under the CSA," the law firm Debevoise & Plimpton notes, "its rescheduling would not immediately impact the potential legal risks to financial institutions (and other parties) considering whether to provide services to marijuana businesses."

If marijuana is listed along with prescription drugs, doesn't that at least mean that it can legally be used as a medicine? No, because doctors can prescribe only specific products that have been approved by the Food and Drug Administration (FDA). Unless and until new cannabis-based medicines pass muster with the FDA, they will not be legal for doctors to prescribe or patients to use.

These points are easily overlooked in the hoopla surrounding the rescheduling announcement. But the limitations of Biden's "monumental" policy shift are clear from the reactions of activists and the cannabis industry.

"This recommendation validates the experiences of tens of millions of Americans, as well as tens of thousands of physicians, who have long recognized that cannabis possesses legitimate medical utility," said Paul Armentano, deputy director of the National Organization for the Reform of Marijuana Laws, which first urged the DEA to reschedule marijuana back in 1972. "But it still falls well short of the changes necessary to bring federal marijuana policy into the 21st century. Specifically, the proposed change fails to harmonize federal marijuana policy with the cannabis laws of most U.S. states, particularly the 24 states that have legalized its use and sale to adults."

The review from the American Civil Liberties Union (ACLU) was similarly mixed. "President Biden's decision to reschedule marijuana is the most significant step any American president has taken to address the harms of the war on marijuana," Cynthia W. Roseberry, director of policy and government affairs at the ACLU's Justice Division, said in an emailed statement. "While it is an incredibly encouraging step in the right direction, the rescheduling does not end criminal penalties for marijuana or help the people currently serving sentences for marijuana offenses."

John Mueller, CEO of the Greenlight dispensary chain, likewise noted what rescheduling will not do. "This is a monumental moment," he said in an emailed press release, "but we still have a long way to go to rectify the injustices of the War on Drugs. The recent strides in cannabis rescheduling mark a significant departure from a failed 50-year prohibition policy. We must continue this momentum by calling on our state and federal leaders to prioritize the release of individuals incarcerated for cannabis-related offenses. This is not just about acknowledging the legitimacy of the cannabis industry, but also about rectifying the disproportionate impact of outdated policies on marginalized communities.…It's time to right the wrongs of the past and embrace progress wholeheartedly."

Aaron Smith, CEO of the National Cannabis Industry Association, had a similar take. "On behalf of thousands of legal businesses operating across the country, we commend President Biden for taking this important first step toward a more rational marijuana policy," he said. "Now it's time for Congress to enact legislation that would protect our industry, uphold public safety, and advance the will of the voters who overwhelmingly support making cannabis legal for adults. Rescheduling alone does not fix our nation's state and federal cannabis policy conflict. Only Congress can enact the legislation needed to fully respect the states and advance the will of the vast majority of voters who support legal cannabis."

The post Biden's Spin on Marijuana's Rescheduling Exaggerates Its Practical Impact appeared first on Reason.com.

Last Thursday, a federal judge in Delaware rejected Hunter Biden's Second Amendment challenge to the three gun charges he faces for buying a revolver in October 2018, when he was a crack cocaine user. In a 10-page order, U.S. District Marylellen Noreika concludes that 18 USC 922(g)(3), which makes it a felony for an "unlawful user" of a "controlled substance" to receive or possess firearms, is not unconstitutional on its face, meaning there are at least some cases in which the provision can be enforced without violating the right to keep and bear arms.

Noreika's decision does not end a constitutional dispute that pits Biden against his own father, who has steadfastly defended a policy that could send his son to prison. That policy denies Second Amendment rights to millions of Americans with no history of violence, including cannabis consumers, whether or not they live in states that have legalized marijuana.

Noreika's ruling leaves the door open to an "as-applied" challenge if and when Biden is convicted, meaning he can still argue that his prosecution violates the Second Amendment at that point. That claim may ultimately be resolved by the U.S. Court of Appeals for the 3rd Circuit, which has yet to address the constitutionality of Section 922(g)(3) under the test that the U.S. Supreme Court established in the 2022 case New York State Rifle & Pistol Association v. Bruen.*

If Biden is convicted and his appeals are unsuccessful, he could face a substantial prison sentence. When he bought his gun, violations of Section 922(g)(3) were punishable by up to 10 years in prison. The Bipartisan Safer Communities Act, which his father signed into law in 2022, raised the maximum penalty to 15 years. But even though Congress views gun ownership by illegal drug users as a serious crime, it is rarely prosecuted. While survey data suggest that millions of gun owners are guilty of violating Section 922(g)(3), fewer than 150 Americans are prosecuted for that offense each year.

The two other gun charges that Biden faces, which are based on the same transaction, likewise are rarely prosecuted. One alleges a violation of 18 USC 922(a)(6), which applies to someone who knowingly makes a false statement in connection with a firearm transaction. The other involves 18 USC 924(a)(1)(A), which applies to someone who "knowingly makes any false statement or representation with respect to the information" that a federally licensed dealer is required to record.

Both charges are based on the same conduct: Biden checked "no" in response to a question on Form 4473, which is required for gun purchases from federally licensed dealers: "Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance?" That check mark, according to federal prosecutors, qualified as two felonies, punishable by a combined maximum prison sentence of 15 years. Although actual sentences tend to be much shorter than the maximums, Biden theoretically faces up to 25 years in prison for conduct that violated no one's rights.

Biden argued that Section 922(g)(3) fails the Bruen test, which requires the government to show that a gun law is "consistent with this Nation's historical tradition of firearm regulation." He added that the ancillary charges also should be dismissed because they would not be possible but for Section 922(g)(3).

In rejecting Biden's motion to dismiss, Noreika relies heavily on a recent decision by the U.S. Court of Appeals for the 8th Circuit. Last month in United States v. Veasley, the 8th Circuit rejected a facial challenge to Section 922(g)(3), citing the legal treatment of "the mentally ill" in the 18th and 19th centuries.

In the 18th century, the appeals noted, justices of the peace were empowered to order the confinement of "lunatics" who were deemed a threat to public safety. Since such confinement "did not include access to guns," the court reasoned, it was clear that "lunatics" had no such rights. And by the late 19th century, states had begun to prohibit gun sales to people of "unsound mind." Together with "the even longer tradition of confinement," the 8th Circuit said, "these laws suggest that society made it a priority to keep guns out of the hands of anyone who was mentally ill and dangerous."

Those precedents, the appeals court said, amply justify Section 922(g)(3): "The 'burden' imposed by § 922(g)(3) is 'comparable,' if less heavy-handed, than Founding-era laws governing the mentally ill. It goes without saying that confinement with straitjackets and chains carries with it a greater loss of liberty than a temporary loss of gun rights. And the mentally ill had less of a chance to regain their rights than drug users and addicts do today. Stopping the use of drugs, after all, restores gun rights under § 922(g)(3)." The court thought the justification for Section 922(g)(3), "which is to 'keep guns out of the hands of presumptively risky people,'" is "also comparable."

The 8th Circuit assumed that drug users are analogous to "lunatics" and people of "unsound mind" who are "mentally ill and dangerous." But the U.S. Court of Appeals for the 5th Circuit rejected that analogy last year, when it overturned the Section 922(g)(3) conviction of Patrick Darnell Daniels Jr., a Mississippi man who was caught with a gun and the remains of a few joints after he was pulled over for driving without a license plate in April 2022.

"Just as there was no historical justification for disarming a citizen of sound mind, there is no tradition that supports disarming a sober citizen who is not currently under an impairing influence," the 5th Circuit said in United States v. Daniels. "The Founders purportedly institutionalized the insane and stripped them of their guns; but they allowed alcoholics to possess firearms while sober. We must ask, in Bruen-style analogical reasoning, which is Daniels more like: a categorically 'insane' person? Or a repeat alcohol user? Given his periodic marihuana usage, Daniels is firmly in the latter camp. If and when Daniels uses marihuana, he may be comparable to a mentally ill individual whom the Founders would have disarmed. But while sober, he is like the repeat alcohol user in between periods of drunkenness."

Noreika also cites district court decisions that accepted the Justice Department's analogy between Section 922(g)(3) and early laws that made it a crime to publicly carry or discharge firearms while intoxicated. But the 5th Circuit rejected that analogy, and so did the 8th Circuit.

As both courts noted, those historical laws addressed a specific hazard—drunken gun handling—with narrow restrictions. They applied only in public and only to people who were actively intoxicated. They did not apply to private possession of firearms, let alone impose a categorical ban on gun ownership by drinkers.

"Under the government's reasoning," the 5th Circuit said, "Congress could ban gun possession by anyone who has multiple alcoholic drinks a week…based on the postbellum intoxicated carry laws. The analogical reasoning Bruen prescribed cannot stretch that far."

The 8th Circuit reached a similar conclusion. "For drinkers, the focus was on the use of a firearm, not its possession," it noted. "And the few restrictions that existed during colonial times were temporary and narrow in scope." It added that "there was even less regulation when it came to [other] drugs," which were widely available without a prescription in the 19th century.

"The government concedes that its 'review of early colonial laws has not revealed any statutes that prohibited [firearm] possession' by drug users," the 8th Circuit noted. "It took until 1968, with the passage of § 922(g)(3), for Congress to keep guns away from drug users and addicts….The fact that 'earlier generations addressed the societal problem…through materially different means [is] evidence that' disarming all drug users, simply because of who they are, is inconsistent with the Second Amendment."

Since it viewed the comparison between Section 922(g)(3) and laws aimed at preventing drunken gun handling as problematic, the 8th Circuit instead relied on the comparison between drug users and people who are "mentally ill and dangerous." It also invoked "the Founding-era criminal prohibition on taking up arms to terrify the people."

The 8th Circuit conceded that "not every drug user or addict will terrify others, even with a firearm." It is "exceedingly unlikely," for example, that "the 80-year-old grandmother who uses marijuana for a chronic medical condition and keeps a pistol tucked away for her own safety" will "pose a danger or induce terror in others." But "those are details relevant to an as-applied challenge, not a facial one," the court added. "For our purposes, all we need to know is that at least some drug users and addicts fall within a class of people who historically have had limits placed on their right to bear arms."

Noreika emphasizes that the 5th Circuit characterized Daniels as upholding an "as-applied" challenge. "We do not invalidate the statute in all its applications, but, importantly, only as applied to Daniels," the appeals court said. Noreika concludes that Daniels therefore provides no support to Biden's challenge. The 5th Circuit's reasoning nevertheless casts doubt on the notion that illegal drug users, as a class, are so dangerous that they have no Second Amendment rights.

Noreika finds that "the overwhelming weight of the district courts lends no support to Defendant's position either." But she notes three decisions in which federal judges concluded that Section 922(g)(3) charges were unconstitutional.

United States v. Harrison, decided in February 2023, involved an Oklahoma marijuana dispensary employee who was pulled over on his way to work for failing to stop at a red light in May 2022. Police found marijuana and a loaded revolver in his car. U.S. District Judge Patrick Wyrick dismissed a Section 922(g)(3) charge, rejecting the government's contention that "Harrison's mere status as a user of marijuana justifies stripping him of his fundamental right to possess a firearm."

United States v. Connelly, decided two months later, involved a Texas woman who was charged with illegal possession of firearms after El Paso police found marijuana and guns in her home while responding to a domestic disturbance in December 2021. U.S. District Judge Kathleen Cardone concluded that Section 922(g)(3) "does not withstand Second Amendment scrutiny."

U.S. Magistrate Judge Robert Numbers reached the same conclusion that July in United States v. Alston, which also involved a marijuana user charged with violating Section 922(g)(3). "The government has failed to establish that historical laws regulating the mentally ill, the intoxicated, or the dangerous are sufficiently analogous to § 922(g)(3)," Numbers wrote. "The founding-era laws the government offers sought to remedy different problems than § 922(g)(3) does, and they did so through less-restrictive means. Taken together, the historical examples discussed above are not analogous enough to § 922(g)(3) to establish the statute's constitutionality." Last October, U.S. District Judge Louise Flanagan agreed that "the government has not met its burden of proving that § 922(g) is consistent with the Second Amendment."

Although Noreika describes only that last decision as upholding a facial challenge, Cardone's conclusion that Section 922(g)(3) "does not withstand Second Amendment scrutiny" went further than deeming a specific prosecution unconstitutional, and all three decisions rejected the government's historical analogies in no uncertain terms. Furthermore, all of these cases were resolved before trial, as Biden sought to do in his case.

Why does Noreika say that remedy is not available to Biden? "Defendant argues that § 922(g)(3) is unconstitutional under the revised framework announced in Bruen because there is no 'historical precedent for disarming citizens based on their status of having used a controlled substance,'" she writes. "Because Defendant makes no arguments specifically tailored to him or the application of § 922(g)(3) to his facts, Defendant's challenge to the constitutionality of § 922(g)(3) is a facial one….To the extent that Defendant seeks in his motion to raise a challenge to the constitutionality of § 922(g)(3) as applied to him, that request is denied without prejudice to renew on an appropriate trial record."

As Noreika sees it, in other words, Biden has to be convicted before he can challenge his prosecution. But no matter what happens with this particular case, the Biden administration's dogged defense of Section 922(g)(3), especially as applied to cannabis consumers, belies the president's repudiation of the hardline anti-drug position that he took for decades as a senator.

Nowadays, Biden says marijuana use should not be treated as a crime and decries the disadvantages associated with marijuana possession convictions. But his Justice Department simultaneously insists that marijuana use makes people so dangerous that they cannot be trusted with guns—so dangerous, in fact, that they should go to prison for trying to exercise their Second Amendment rights. The government claims that judgment is supported by historical precedents that bear little resemblance to a 1968 law that categorically deprives people of the right to arms for no good reason.

*Correction: This paragraph has been revised to clarify the timing of Biden's possible appeal.

The post Here Is Why a Federal Judge Rejected Hunter Biden's Second Amendment Challenge to His Gun Charges appeared first on Reason.com.

Juan Merchan, the judge presiding over Donald Trump's criminal trial in Manhattan, yesterday denied a second defense motion for a mistrial. Trump's lead attorney, Todd Blanche, has objected to aspects of porn star Stormy Daniels' testimony about her purported 2006 sexual encounter with Trump, saying some of the details were legally irrelevant and "so unduly and inappropriately prejudicial" that a mistrial was the only remedy. Merchan rejected that argument on Tuesday and again on Thursday, saying the problem that Blanche perceives was largely a result of the defense team's failures during Daniels' testimony and cross-examination.

Among other things, Blanche cited testimony suggesting, for the first time, that Daniels' alleged encounter with Trump was not fully consensual. This dispute illustrates the risk that the salaciousness of Daniels' account will overshadow the legal issue at the center of the case.

Trump is not charged with adultery or sexual assault. He is not charged with trying to keep Daniels from talking about what she says happened, although Manhattan District Attorney Alvin Bragg has misleadingly suggested that the essence of Trump's crime was keeping that information from voters during his 2016 presidential campaign. Trump is not even charged with instructing his personal lawyer, Michael Cohen, to pay Daniels $130,000 shortly before the election in exchange for her silence. Rather, he is charged with falsifying business records to disguise his 2017 reimbursement of Cohen as payment for legal services.

Proving those 34 charges does not require demonstrating that Daniels is telling the truth at all, let alone that every detail is accurate. Under the prosecution's theory, Trump would be guilty of falsifying business records even if Daniels made the whole thing up. And assuming that Cohen's payment to Daniels amounted to an excessive campaign contribution (a characterization that Cohen accepted when he pleaded guilty to that offense in 2018), Trump's falsification of business records would be a felony if he was trying to conceal that violation of federal campaign finance regulations.

There are several problems with that theory, including the fuzziness of the distinction between personal and campaign expenditures, the question of whether Trump recognized that the Daniels payoff fell into the latter category (assuming that it did), the uncertainty about Trump's involvement in generating the relevant business records and his motive in doing so, and the attempt to convert a 2016 federal campaign finance violation into a state felony via a moribund New York election law that apparently has never been used before. But one thing is clear: Trump's criminal liability in this case has nothing to do with exactly what happened in his Lake Tahoe hotel suite during a celebrity golf tournament in July 2006.

Jurors nevertheless heard a lot about that. For years, Daniels has said she consented to sex with Trump. But during her testimony on Tuesday, she cast doubt on that characterization, saying "I just think I blacked out," although she added that she was not "drunk" or "drugged." She also noted that "there was a bodyguard right outside the door" and said "there was an imbalance of power for sure," since Trump "was bigger and blocking the way," although she conceded that she "was not threatened verbally or physically."

When Blanche complained that Daniels had changed her story, Merchan disagreed. "I disagree with your narrative that there is any new account here," the judge said. "I disagree that there is any changing story." Yet Blanche's complaint is at least partially valid.

It's true that Daniels has mentioned the bodyguard, Keith Schiller, before. He figures prominently in the account she gave in her 2018 memoir Full Disclosure. In that book, she also mentions that Trump did not wear a condom—another detail that Blanche described as irrelevant and prejudicial.

"I was surprised he didn't even mention a condom," Daniels says in Full Disclosure. "I didn't have one with me anyway, because I wasn't meeting him for sex. If I had been, I always brought my own, because I am allergic to latex. Back then I used Avantis"—a brand of nonlatex condoms. While Daniels' testimony on that point was similar, it introduced an element of concern that is not mentioned in the book:

Prosecutor Susan Hoffinger: Was he wearing a condom?

Daniels: No.

Hoffinger: Was that concerning to you?

Daniels: Yes.

Hoffinger: Did you say anything about it?

Daniels: No.

Hoffinger: Why not?

Daniels: I didn't say anything at all.

That exchange, Blanche noted, came after Daniels' testimony that the men with whom she performed in adult films were always required to wear condoms. On Thursday, the defense described the discussion of condoms as "a dog whistle for rape." While that may be an exaggeration, Daniels' testimony that Trump's failure to use a condom worried her certainly reinforced the impression that Daniels was doing something she did not want to do.

Full Disclosure leaves a similar impression—up to a point. After a conversation in which Daniels felt that Trump was treating her respectfully and taking her seriously as a businesswoman, she says, she emerged from a bathroom where she had touched up her makeup to find Trump sitting on a bed in his underwear.

"I had the sense of a vacuum taking all of the air out of the room, and me deflating with it," Daniels writes. "I sighed inwardly, keenly aware of two thoughts in that one moment. There was the simple Oh, fuck. Here we go. But there was also a much more complex, sad feeling that none of what he said was true. He didn't respect me. Everything he said to me was bullshit."

Daniels says she "should have…let him know this wasn't okay." But she didn't. "So, here we go," she writes. "It was an out-of-body experience….I just kind of lay there. A lot of women have been there. He wasn't aggressive, and I know for damn sure I could have outrun him if I tried, but I didn't. I'm someone who doesn't stop thinking, so as he was on top of me I replayed the previous three hours to figure out how I could have avoided this."

In her book, Daniels describes brief, sad, regrettable, and unsatisfying sex, but she emphasizes that it was an experience she easily could have avoided. Although she never quite explains why she decided to go through with it, there is no suggestion that she was incapacitated. But in her testimony, she said "I blacked out," which she suggested explained why "I don't remember" exactly what happened. Blacking out is not the same as "an out-of-body experience," which involves feeling detached from your body while fully conscious.

"I was not drugged," Daniels said. "I never insinuated that I was on drugs. I was not drunk. I never said anything of that sort." In a sidebar discussion, defense attorney Susan Necheles nevertheless objected that "she is making it sound like she was drugged." Hoffinger suggested that Daniels merely meant that she was "dizzy," possibly because she was hungry for the dinner that was promised but never materialized—a point she emphasizes in her book and mentioned in her testimony.

Merchan sustained Necheles' objection. But that did not stop the jury from hearing Daniels imply that she was not fully aware of what was happening that night. Combined with Daniels' references to the bodyguard and the "imbalance of power," that description strongly suggested her consent was not only passive and unenthusiastic but the product of pressure and incapacity.

Daniels strengthened that impression by saying she could not "remember how your clothes got off." There was Trump in his underwear, she said, and "the next thing I know" she was "on the bed," naked. Hoffinger asked whether she "remember[ed] anything other than the fact that you had sex on the bed." Not really, Daniels implied: "I was staring at the ceiling. I didn't know how I got there. I made note, like I was trying to think about anything other than what was happening there." That also prompted an objection from Hoffinger, which Merchan sustained.

In Full Disclosure, by contrast, Daniels recounts the sex in considerable detail, calling Trump "a terrible kisser," quoting what he said to her, describing the position he used, recalling the size and "unusual" shape of his penis, and remarking on his crotch hair. While these are just the sort of details that the defense (and Merchan) would deem out of bounds, they contradict the idea that Daniels was just "staring at the ceiling," that she didn't know "how I got there," or that she was only dimly aware of "what was happening there."

What does all this have to do with Trump's alleged falsification of business records? "All of this has nothing to do with this case," Blanche told Merchan on Tuesday. "The only reason why the government asked those questions, aside from pure embarrassment, is to inflame this jury to not look at the evidence that matters." He noted that Daniels "has testified today about consent, about danger," which is "not the point of this case."

The prosecution argues that the details of Daniels' story matter because they rebut Trump's contention that she invented the whole episode, which in turn goes to his motivation in arranging her nondisclosure agreement and in trying to keep it a secret with phony invoices, mislabeled checks, and fraudulent ledger entries. "Her account completes the narrative of the events that precipitated the falsification of business records," Hoffinger told Merchan. "Her account is highly probative of the defendant's intent, his intent and his motive in paying this off, and making sure that the American public did not hear this before the election. It is precisely what the defendant did not want to become public."

Merchan agreed with Blanche that "there were some things that would probably have
been better left unsaid." But he said the fault for that lay partly with Trump's attorneys. "The objections, for the most part, were sustained," he said. "Where there was a motion to strike testimony, for the most part, that motion was granted as well. I will also note that I was surprised that there were not more objections at various times during the testimony….So when you say that, you know, the bell has been rung, the defense has to take some responsibility for that."

Merchan was less patient on Thursday, when the defense again moved for a mistrial. "There were many times when you could have objected but didn't," he told Necheles. She objected when Daniels testified that she "touch[ed] his skin" and when she said "we were in the missionary position," for example, but did not object during the condom exchange, which Blanche later argued was prejudicial and irrelevant. Nor did Necheles object when Daniels described the "imbalance of power" or when she noted that Trump was "definitely several inches taller and much larger" than her. And Necheles' objection to "I just think I blacked out" came late, five sentences after Daniels said it.

Merchan also "chided Mr. Trump's lawyers for missteps during their cross-examination of Ms. Daniels," The New York Times notes, "and suggested that the former president's insistence on entirely denying any sexual encounter with Ms. Daniels had opened the door for the prosecution to introduce specific—and graphic—evidence that the encounter did occur." The judge conceded that some details of Daniels' testimony were so needlessly prejudicial that he would have sustained objections to them if the defense had made them. At the same time, he said Daniels could "corroborate her account" by describing details of the encounter because a truthful story "increases the motivation to silence her."

That rationale seems like a stretch, especially since the prosecution has argued that Trump was eager to suppress negative stories even when they were not true. According to testimony that prosecutors presented to establish that pattern, Cohen arranged for the National Enquirer to pay former Trump Tower doorman Dino Sajudin $30,000 for exclusive rights to his story, which alleged that Trump had fathered a child with a woman hired to clean the building. Although the Enquirer investigated that story and determined that it was not true, prosecutors say, Trump was still keen to stop Sajudin from telling it. That suggests Trump would have wanted to silence Daniels even if her story was equally fictitious, making all the quibbling about the details of that story irrelevant.

The post The Details of Stormy Daniels' Story About Sex With Trump Are Legally Irrelevant appeared first on Reason.com.

During a sleepover in August 2017, three 14-year-old boys, two of whom were about to start attending St. Francis High School in Mountain View, California, took a picture of themselves wearing dark green acne masks. One of the boys, who was hosting the other two, had severe acne, and his friends applied the masks in an act of playful solidarity. They took the picture because they thought they looked "silly."

Three years later, after another teenager obtained the picture and posted it online, the two St. Francis students were falsely accused of posing in blackface and forced to leave the school under the threat of expulsion. This week a California jury awarded the boys, identified as A.H. and H.H. in their lawsuit against the school, $1 million in damages, plus a tuition reimbursement of about $70,000.

"A photograph of this innocent event was plucked from obscurity and grossly mischaracterized during the height of nationwide social unrest," the boys' familes said when they filed their lawsuit in 2021. The photo came to light in June 2020, a month after Minneapolis police officer Derek Chauvin killed George Floyd. "St. Francis became involved in a number of racial scandals," NBC News reports, "including one where recent graduates of the school posted a meme about Floyd's death on Instagram." Because of that context, A.H. and H.H. argued, St. Francis officials rushed to judgment, tarring the students as racist and disrupting their lives without giving them a chance to explain the photo.

"The boys did not use the facemasks or take the photograph with any ill-intent, bias or prejudice, let alone in connection with any racist sentiments or epithets," the lawsuit said. "Defendants took it upon themselves to use the innocent and wholly unrelated photograph of the boys to make the malicious and utterly false accusation that the boys had been engaging in 'blackface,' and to recklessly assert that the photograph was 'another example' of racism" at St. Francis. That false accusation, according to the complaint, interrupted the boys' educations, destroyed their local reputations, and forced their families to move.

The jury agreed that St. Francis had treated the boys unfairly, thereby violating an oral contract. More controversially, the jury accepted a claim under the California Supreme Court's "common law doctrine of fair procedure," which extends due process requirements to private actors such as unions, hospitals, insurers, and professional organizations. Last year, the court ruled that the doctrine also applies to private universities. But according to the attorneys who represented A.H. and H.H., this is the first time the doctrine has been applied to a private secondary school.

"This case is significant not only for our clients but for its groundbreaking effect on all private high schools in California, which are now legally required to provide fair procedure to students before punishing or expelling them," said Dhillon Law Group partner Krista Baughman. "The jury rightly confirmed that St. Francis High School's procedures were unfair to our clients and that the school is not above the law."

Karin Sweigart, another lawyer at the firm, emphasized that it took four years to definitively refute the school's erroneous claim about the supposedly racist nature of the photo. "The jury's verdict finally cleared our clients' names after four long years of repeated personal attacks from St. Francis High School," she said. "Schools are supposed to protect and nurture children, not sacrifice them when it is convenient for public relations purposes."

The school's representatives said they "respectfully disagree with the jury's conclusion" about "the fairness of our disciplinary review process." They added that the school is "exploring legal options," including a possible appeal.

The plaintiffs' attorneys note that "St. Francis expelled the boys within 24 hours, without considering their evidence or offering any hearing." They add that "the school's actions led to significant personal, educational, and emotional consequences for the students."

The boys' parents amplified that point. "We would never wish the pain, humiliation, and suffering St. Francis has inflicted on our families on anyone," they said, "but we are thankful that the jury has spoken," "vindicated our boys," and "forced St. Francis to finally take responsibility for their repeated personal attacks."

Even with "time to reflect and contemplate after the heat of the moment had subsided," the parents said, St. Francis officials "don't regret their actions" and "would do the same thing today." Although the case has consumed "twenty percent of our boys' lives," they said, "the sacrifice is worth it to clear our boys' names" and "to try and make sure that St. Francis can never again assume a child is guilty" without giving him "the opportunity to show [his] innocence."

The post California Students Get $1 Million After They Were Expelled for Wearing Supposedly Racist Acne Masks appeared first on Reason.com.

In December 2022, the Albuquerque Police Department (APD) received a tip that officers assigned to the APD's DWI unit were getting paid to make cases disappear. The tipster specifically mentioned Honorio Alba, one of several officers who would later resign amid a burgeoning corruption scandal featuring that very allegation. Yet an internal investigation found no evidence to substantiate the tip.

That episode, recently revealed by City Desk ABQ, helps explain why evidence of longstanding corruption within the DWI unit did not come to light until the FBI began looking into it. "We're dealing with stuff that we anticipate started decades ago, and we've done a lot of things that have got us to this point," Albuquerque Police Chief Harold Medina said at a press conference in February. "But we will continue to dig and look and leave no stone unturned and make sure that we get to the bottom of this."

It seems like the department left plenty of stones unturned when it had a chance to clean its own house before the feds stepped in. Instead of telling the FBI about the alleged corruption, the APD apparently did not take the situation seriously until after it heard from the FBI.

In October 2023, 10 months after the APD's Criminal Intelligence Unit launched its fruitless probe, the FBI informed Medina that it was investigating the DWI unit. The following month, Albuquerque's Civilian Police Oversight Agency received a letter from a local court official who said Alba reportedly had pulled over a speeding, flagrantly drunk driver and, instead of filing charges, referred him to a specific local defense attorney.

The FBI investigation became public knowledge after agents executed search warrants at that attorney's office and the homes of several officers in January 2024. Local news outlets began looking into DWI cases that had been handled by Alba and his colleagues. They found suspiciously low conviction rates that somehow had eluded the APD's investigators in 2022.

In response to the corruption allegations, the Bernalillo County District Attorney's Office dropped some 200 DWI cases, saying it could not rely on the testimony of the cops who had made the arrests. KOB, the NBC affiliate in Albuquerque, reported that Alba, who was honored as "Officer of the Year" by the New Mexico chapter of Mothers Against Drunk Driving last July, was the arresting officer in many of those cases.

KRQE, the local CBS affiliate, looked at DWI cases filed during the previous six years. It found that Joshua Montaño, a 19-year veteran, "was named as the officer in at least 36 cases" in which the defendants were represented by Thomas Clear, the lawyer whose office the FBI had searched. Nearly 90 percent of those cases "ended in dismissals."

City Desk ABQ examined "85 DWI cases dating back to 2017" involving Clear and Alba, Montaño, or two other members of the DWI unit, Harvey Johnson and Nelson Ortiz. It found that 14 percent of the cases ended with trial convictions or plea deals, which was "much lower than the Metro Court average of 56% convictions in DWI cases over the same years." The other 86 percent were dismissed, typically because officers did not show up at pretrial interviews or hearings. The "vast majority" of the defendants were arrested by Alba or Montaño.

Why didn't the APD discover any of this back in 2022? Acting Sgt. Jon O'Guin "started gathering information but—after looking through officer activity—didn't turn up any evidence," City Desk ABQ reports, citing a five-page "intel file" that it obtained through a public records request.

According to the tipster, APD spokesman Gilbert Gallegos told City Desk ABQ, three bars in Northeast Albuquerque were alerting police to intoxicated patrons so they could be nabbed after they drove away. "They were targeting individuals, who then could get their cases dismissed," Gallegos said, describing the tip. "So they would arrest and charge them and then get their cases dismissed and there would be some sort of payment for that."

In response to that tip, City Desk ABQ says, O'Guin examined "the activity of the seven officers who were on the DWI unit at that time, including Alba, Johnson and Montaño." But his investigation apparently was limited to the specific allegation, as opposed to the general claim that officers were helping arrestees avoid charges in exchange for payoffs.

In December 2022, the officers' activity "did not show any obvious indicators that would match the allegations of the information received for the initial complaint in regards to increased activity in the areas of the three locations mentioned in NE Albuquerque," O'Guin wrote in the intel file. "All officers' CAD [computer-aided dispatch] activity showed what would appear to be normal traffic stops and requests for assistance responses across the city." The same was true, he said, for October and November.

That summary of O'Guin's investigation is dated January 2024, by which point the FBI had collected enough evidence to obtain search warrants. "When the allegations were relayed from the FBI, the detective was asked to update the file with documentation of the work that was initially done," Gallegos explained. "So that part of the report was dated January 2024, when he provided that information."

Given the timing, O'Guin's gloss may have been deliberately self-exculpating. In any case, he evidently never thought to look at what was generally happening with the DWI cases that Alba et al. handled. If he had, he would have discovered the same curious pattern that reporters found after the FBI raids. Those high dismissal rates reinforce the allegation that these officers, after stopping drivers for DWI, would "get their cases dismissed" in exchange for "some sort of payment."

No corruption charges have been filed yet. But Alba, Montaño, Johnson, Ortiz, and Lt. Justin Hunt all resigned after they were placed on administrative leave pending the outcome of another internal investigation, this one prompted by the FBI probe and the letter to the Civilian Police Oversight Agency. On Tuesday, APD spokesman Daren DeAguero, a 15-year veteran who served in the DWI unit from 2014 to 2018, joined the line of exiting officers.

DeAguero resigned the same day he was scheduled to be interviewed by internal investigators. "Due to the current situation of receiving a letter of investigation with very little time to obtain adequate representation," he wrote in a memo to Medina, "I unfortunately will be ending my employment [with] the Albuquerque Police Department effective April 30, 2024."

Montaño was more expansive when he resigned on March 20. "When I was put on administrative leave, I thought there would be an opportunity for me to talk to the department about what I knew regarding the FBI's investigation," he wrote. "I thought there would be a time [when] I could disclose what I knew from within APD and how the issues I let myself get caught up in within the DWI Unit were generational. I thought there would be a time where I could talk about all the other people who should be on administrative leave as well, but aren't."

Montaño said he ultimately decided against cooperating with APD investigators. "In order for me to talk to the City about what I knew," he wrote, "I needed to not be the City's scapegoat for its own failures." He complained that Medina "has made it seem like there are just a few bad officers acting on their own." That is "far from the truth," Montaño said.

Among other things, the FBI reportedly is investigating claims that officers deliberately missed court dates, resulting in the dismissal of DWI cases. But according to Montaño, "officers all know that our attendance, or non-attendance, at Court is watched over and monitored." While "I take responsibility for my actions," he said, the responsibility for the alleged misconduct extends up the chain of command and more than a few years back in time—probably "decades," according to Medina himself.

"There is a much bigger story here," Montaño's lawyer, Thomas Grover, told City Desk ABQ. "If Officer Montaño is a cinder block in this saga, there's a whole wall to address. It goes outward and upward."

The post A Year Before Albuquerque's Police Corruption Scandal Made Headlines, an Internal Probe Found Nothing appeared first on Reason.com.

The Justice Department yesterday confirmed that the Drug Enforcement Administration  (DEA) plans to move marijuana from Schedule I of the Controlled Substances Act (CSA), a list of completely prohibited drugs, to Schedule III, which includes prescription medications such as ketamine, Tylenol with codeine, and anabolic steroids. The Associated Press notes that the change, which is based on an August 2023 recommendation by the Department of Health and Human Services (HHS) that resulted from a review President Joe Biden ordered in October 2022, "would not legalize marijuana outright for recreational use."

That is by no means the only thing rescheduling marijuana will not do. Biden wants credit for "marijuana reform," which he hopes will help motivate young voters whose turnout could be crucial to his reelection. The announcement of the DEA's decision seems designed to maximize its electoral impact. But voters should not be fooled: Although moving marijuana to Schedule III will facilitate medical research and provide a financial boost to the cannabis industry, it will leave federal pot prohibition essentially untouched.

Rescheduling marijuana will not resolve the conflict between the CSA and the laws of the 38 states that recognize cannabis as a medicine, 24 of which also allow recreational use. State-licensed marijuana businesses will remain criminal enterprises under federal law, exposing them to the risk of prosecution and forfeiture. While an annually renewed spending rider protects medical marijuana suppliers from those risks, prosecutorial discretion is the only thing that protects businesses serving the recreational market.

Even if they have state licenses, marijuana suppliers will be in the same legal position as anyone who sells a Schedule III drug without federal permission. Unauthorized distribution is punishable by up to 10 years in prison for a first offense and up to 20 years for subsequent offenses. That is less severe than the current federal penalties for growing or distributing marijuana, which include five-year, 10-year, and 20-year mandatory minimum sentences, depending on the number of plants or amount of marijuana. But distributing cannabis, with or without state permission, will remain a felony.

That reality suggests that banks will remain leery of providing financial services to state-licensed marijuana suppliers, which entails a risk of potentially devastating criminal, civil, and regulatory penalties. The dearth of financial services has forced many cannabis suppliers to rely heavily on cash, which is cumbersome and exposes them to a heightened risk of robbery. It also makes investment in business expansion difficult.

Although federal arrests for simple marijuana possession are rare, cannabis consumers likewise will still be committing crimes, even if they live in states that have legalized marijuana. Under 21 USC 844, possessing a controlled substance without a prescription is a misdemeanor punishable by a minimum $1,000 fine and up to a year in jail. Moving marijuana to Schedule III will not change that law, which only Congress can do. Nor did President Joe Biden's mass pardons for people convicted of simple marijuana possession under that statute, which apply only retrospectively, "decriminalize the use of cannabis," as he promised to do during his 2020 campaign.

Biden has repeatedly decried the barriers to education, employment, and housing that marijuana convictions create. But contrary to what he claims, his pardons do not entail expungement of criminal records and therefore do not eliminate those barriers. Nor did the pardons address the various legal disabilities associated with marijuana convictions, cannabis consumption, or participation in the cannabis industry, which include loss of Second Amendment rights (a policy that Biden defends) and ineligibility for admission, legal residence, and citizenship under immigration law. Rescheduling marijuana likewise will not remove those barriers and disabilities.

Moving marijuana to Schedule III will not even make it legally available as a medicine, which would require regulatory approval of specific products. Doctors can legally prescribe Marinol (a.k.a. dronabinol), a synthetic version of THC listed in Schedule III, and Epidiolex, a cannabis-derived CBD solution listed in Schedule V. But they will not be able to prescribe marijuana even after it is moved to Schedule III unless the Food and Drug Administration approves additional cannabis-based medications.

The medical "recommendations" that authorize patients to use marijuana for symptom relief under state law are not prescriptions, and they do not make such use compliant with the CSA. So rescheduling marijuana not only will not legalize recreational use; it will not legalize medical use either.

What will rescheduling do? It should make medical research easier by eliminating the regulatory requirements that are specific to Schedule I, and it will provide an important benefit to state-licensed marijuana suppliers by allowing them to deduct standard business expenses when they pay federal income taxes.

Under Section 280E of the Internal Revenue Code, which is aimed at sticking it to drug dealers, taxpayers may not claim a "deduction or credit" for "any amount paid or incurred during the taxable year in carrying on any trade or business" that involves "trafficking" in Schedule I or Schedule II drugs. As that provision has been interpreted by tax courts, marijuana businesses can still deduct the "cost of goods sold," which counterintuitively means they can deduct the expenses associated with obtaining and maintaining an inventory of cannabis products. But they cannot deduct any other business expenses, including rent, utilities, salaries and benefits, office supplies, security, cleaning services, insurance, and legal fees.

That rule results in a crushing financial burden, forcing marijuana retailers to pay an effective tax rate as high as 70 percent or more. But because Section 280E applies only to businesses that sell drugs in Schedule I or Schedule II, moving marijuana to Schedule III will eliminate that disadvantage.

"I cannot emphasize enough that removal of § 280E would change the industry forever," cannabis lawyer Vince Sliwoski writes. "Having worked with cannabis businesses for 13 years, I view taxation as the largest affront to marijuana businesses—more than banking access, intellectual property protection problems, lack of bankruptcy, you name it. This would be HUGE." In addition to making it much easier to turn a profit, Sliwoski says, the tax change would help attract investors and give marijuana businesses "more leverage" in negotiating those deals.

Aside from those practical changes, rescheduling represents a historic federal about-face on the benefits and hazards of marijuana. Schedule I is supposedly reserved for drugs with a high abuse potential and no accepted medical use that cannot be used safely even under a doctor's supervision. Explaining its rationale for recommending marijuana's reclassification, HHS acknowledged that the drug does not meet those criteria—a point that critics had been making for half a century.

HHS cited "credible scientific support" for marijuana's use in the treatment of pain, nausea and vomiting, and "anorexia related to a medical condition." Regarding abuse potential and safety, it noted that marijuana compares favorably to "other drugs of abuse," such as heroin (Schedule I), cocaine (Schedule II), benzodiazepines like Valium and Xanax (Schedule IV), and alcohol (unscheduled). "The vast majority of individuals who use marijuana," HHS said, "are doing so in a manner that does not lead to dangerous outcomes to themselves or others."

In agreeing to follow the HHS recommendation, the DEA likewise is implicitly admitting that the federal government has been lying about marijuana for decades. But that long-overdue reversal falls far short of addressing today's central cannabis issue: the conflict between federal prohibition and state tolerance, which extends to recreational use in jurisdictions that account for most of the U.S. population. Repealing the federal ban—a step that Americans overwhelmingly support—would resolve that conflict. And while Biden cannot do that on his own, he has stubbornly resisted the idea, even as he emphasizes the irrationality and injustice of the war on weed.

The post Rescheduling Marijuana Does Not Address Today's Central Cannabis Issue appeared first on Reason.com.

WikiLeaks founder Julian Assange has been imprisoned in London for five years, while Texas journalist Priscilla Villarreal was only briefly detained at the Webb County Jail. But both were arrested for publishing information that government officials wanted to conceal.

Assange and Villarreal argue that criminalizing such conduct violates the First Amendment. In both cases, the merits of that claim have been obscured by the constitutionally irrelevant question of who qualifies as a "real" journalist.

Assange, an Australian citizen, is fighting extradition to the United States based on a federal indictment that charges him with violating the Espionage Act by obtaining and publishing classified documents that former U.S. Army intelligence analyst Chelsea Manning leaked in 2010. He has already spent about as much time behind bars as federal prosecutors say he would be likely to serve if convicted.

President Joe Biden says he is "considering" the Australian government's request to drop the case against Assange. But mollifying a U.S. ally is not the only reason to reconsider this prosecution, which poses a grave threat to freedom of the press by treating common journalistic practices as crimes.

All but one of the 17 charges against Assange relate to obtaining or disclosing "national defense information," which is punishable by up to 10 years in prison. Yet all the news organizations that published stories based on the confidential State Department cables and military files that Manning leaked are guilty of the same crimes.

More generally, obtaining and publishing classified information is the bread and butter of reporters who cover national security. John Demers, then head of the Justice Department's National Security Division, implicitly acknowledged that reality in 2019, when he assured reporters they needn't worry about the precedent set by this case because Assange is "no journalist."

The U.S. Court of Appeals for the 5th Circuit took a similarly dim view of Villarreal in January, when it dismissed her lawsuit against the Laredo prosecutors and police officers who engineered her 2017 arrest. They claimed she had violated Section 39.06(c) of the Texas Penal Code, an obscure law that makes it a felony to solicit or obtain nonpublic information from a government official with "intent to obtain a benefit."

The cops said Villarreal committed that crime by asking Laredo police officer Barbara Goodman to confirm information about a public suicide and a fatal car crash. As interpreted by the Laredo Police Department, Section 39.06(c) sweeps even more broadly than the Espionage Act, making a felon out of any reporter who seeks information that is deemed exempt from disclosure under the Texas Public Information Act.

Gliding over the alarming implications of making it a crime for reporters to ask questions, the 5th Circuit dismissed the idea that Villarreal is "a martyr for the sake of journalism." The majority opinion by Judge Edith Jones dripped with contempt for Villarreal, an independent, uncredentialed journalist who posts her unfiltered reports on Facebook instead of publishing vetted and edited stories in a "mainstream, legitimate" news outlet.

Seemingly oblivious to what quotidian news reporting across the country entails, Jones faulted Villarreal for relying on a "backchannel source" and for "capitaliz[ing] on others' tragedies to propel her reputation and career." But like the judgment that Assange is "no journalist," such criticism fundamentally misconstrues freedom of the press, which applies to anyone who engages in mass communication.

The 5th Circuit's decision provoked four dissents authored or joined by seven judges, and it is not hard to see why. "If the First Amendment means anything," Judge James C. Ho wrote, "surely it means that citizens have the right to question or criticize public officials without fear of imprisonment."

In a petition it filed on Villarreal's behalf last week, the Foundation for Individual Rights and Expression urges the U.S. Supreme Court to vindicate that right. "Villarreal went to jail for basic journalism," it notes. "Whatever one may make of Villarreal's journalistic ethics, they are of no constitutional significance."

© Copyright 2024 by Creators Syndicate Inc.

The post Journalism Is Not a Crime, Even When It Offends the Government appeared first on Reason.com.

A year after Manhattan District Attorney Alvin Bragg announced 34 felony charges against Donald Trump, the former president's trial is about to begin. Yet people are still arguing about how to describe the case. This debate is not merely rhetorical. It reflects the disconnect between the counts that Trump faces, all of which allege falsification of business records, and the essence of his crime as Bragg sees it, which is hiding negative information from voters.

"Although it has long been referred to as the 'hush money' case," says CNN legal analyst Norman Eisen, "that is wrong. We should call it an 'election interference' trial going forward."

The reason people call it a "hush money case," of course, is that it would not exist but for the $130,000 that Trump lawyer Michael Cohen paid porn star Stormy Daniels shortly before the 2016 presidential election to keep her from talking about her alleged affair with Trump. But Eisen, who served as co-counsel to the House Judiciary Committee during Trump's first impeachment, joins Bragg in arguing that the significance of the case transcends those tawdry details.

"We allege falsification of business records to the end of keeping information away from the electorate," Bragg said in a January interview with NY1. "It's an election interference case." That sounds important, and it calls to mind the federal charges based on Trump's audacious attempts to remain in office after he lost the 2020 presidential election. But this characterization, which Bragg started emphasizing after Special Counsel Jack Smith unveiled the federal indictment last August, is hard to take seriously.

"As this office has done time and time again, we today uphold our solemn responsibility to ensure that everyone stands equal before the law," Bragg said when he announced the New York indictment in April 2023. "No amount of money and no amount of power changes that enduring principle." Underlining that point, Bragg added: "These are felony crimes in New York. No matter who you are. We cannot normalize serious criminal conduct."

Bragg was on firm ground in arguing that felonies are felonies. But why was this "serious criminal conduct"? Bragg's explanation was underwhelming: "True and accurate business records are important everywhere, to be sure. They are all the more important in Manhattan, the financial center of the world."

In addition to that eye-glazing gloss, Bragg presented the seed of his "election interference" argument. "We allege Donald Trump and his associates repeatedly and fraudulently falsified New York business records to conceal damaging information and unlawful activity from American voters," he said.

Mary McCord, executive director of the Institute for Constitutional Advocacy and Protection at Georgetown University Law Center, echoes that take in a recent New York Times discussion of the case. "The falsification of business records seems rock-solid based on the documentary evidence," she says. "The question for the jurors will be Trump's knowledge and intent." McCord thinks "it's a very winnable case for the D.A." because prosecutors "will give the jurors plenty of evidence" that Trump's motive in falsifying business records was "to prevent information damaging to candidate Trump from becoming public just weeks before the 2016 election."

If you read the indictment and the accompanying statement of facts, you will notice a glaring chronological problem with that account: The criminal conduct that Bragg alleges all happened after the 2016 election. Since Trump was already president, ensuring that outcome could not have been his motive.

Beginning in February 2017, the indictment says, Trump reimbursed Cohen for the hush money with a series of checks, which he disguised as payment for legal services. The indictment counts each of those checks, along with each of the corresponding invoices and ledger entries, as a distinct violation of a state law that makes falsification of business records "with intent to defraud" a misdemeanor.

Since all of this happened after Trump was elected, it is clearly not true that the allegedly phony records "conceal[ed] damaging information…from American voters" in 2016 or that the "falsification of business records" was aimed at "keeping information away from the electorate," thereby helping Trump defeat Hillary Clinton. Eisen concedes this temporal difficulty:

Election interference skeptics contend the charges here are for document falsification by the Trump organization in 2017, after the 2016 election concluded, to hide what happened the year before from being revealed. How can we call this an election interference trial, they ask, if the election was already over when the 34 alleged document falsification crimes occurred?

Those skeptics, Eisen says, overlook the fact that "the payment to Daniels was itself allegedly illegal under federal and state law" and "was plainly intended to influence the 2016 election." Although Cohen "was limited by law to $2,700 in contributions to the campaign," Eisen writes, "he transferred $130,000 to benefit the campaign, allegedly at Trump's direction. That is why Cohen pleaded guilty to federal campaign finance violations (in addition to other offenses), for which he was incarcerated. And no one can seriously dispute that the reason he and Trump allegedly hatched the scheme was to deprive voters of information that could have changed the outcome of an extremely close election."

Eisen glosses over the difficulty of distinguishing between personal and campaign expenditures in this context, which is crucial in proving a violation of federal campaign finance regulations. That difficulty helps explain why the Justice Department never prosecuted Trump for allegedly directing Cohen to make an excessive campaign contribution. Contrary to what Eisen says, there is a serious dispute about whether Trump "knowingly and willfully" violated federal election law.

In any case, it is too late to prosecute that alleged crime. And even if it weren't, Bragg would have no authority to enforce federal law.

Falsification of business records can be treated as a felony only if the defendant's "intent to defraud includes an intent to commit another crime or to aid or conceal the commission thereof." Bragg has mentioned a violation of the Federal Election Campaign Act as one possible candidate for "another crime." But it is plausible that Trump did not think paying off Daniels was illegal. If so, it is hard to see how his falsification of business records could have been aimed at concealing "another crime," even assuming that phrase includes violations of federal law, which also is not clear.

The legality of the hush payment is uncertain because it turns on whether Trump was trying to promote his election or trying to avoid personal embarrassment and spare his wife's feelings. The same ambiguity poses a challenge for Bragg in trying to convict Trump of felonies rather than misdemeanors: Did he falsify business records to cover up another crime or simply to keep his wife in the dark?

As Bragg sees it, Trump "corrupt[ed] a presidential election" by hiding information that voters might have deemed relevant in choosing between him and Clinton. But there is nothing inherently illegal about that: If Trump had persuaded Daniels to keep her mouth shut simply by asking nicely, the result would have been the same. Bragg's "election interference" narrative, insofar as it makes legal sense at all, requires showing that Trump not only tried to prevent a scandal but committed one or more crimes toward that end.

"People want the hush money case to be the big case that can take down Trump because it may be the only one that goes to trial before the election," UCLA election law expert Richard Hasen, one of the "skeptics" to whom Eisen alludes, writes in the Los Angeles Times. But "the charges are so minor I don't expect they will shake up the presidential race."

Hasen rejects Bragg's "election interference" framing. "Failing to report a campaign payment is a small potatoes campaign-finance crime," he says. "Willfully not reporting expenses to cover up an affair isn't 'interfering' with an election along the lines of trying to get a secretary of state to falsify vote totals, or trying to get a state legislature to falsely declare there was fraud in the state and submit alternative slates of electors. We can draw a fairly bright line between attempting to change vote totals to flip a presidential election and failing to disclose embarrassing information on a government form."

Although "I certainly understand the impulse of Trump opponents to label this case as one of election interference," Hasen adds, "any voters who look beneath the surface are sure to be underwhelmed. Calling it election interference actually cheapens the term and undermines the deadly serious charges in the real election interference cases."

The post Alvin Bragg's 'Election Interference' Narrative Is Nonsensical appeared first on Reason.com.

President Joe Biden's perfunctory reference to marijuana reform during last night's State of the Union address further undermined his campaign's already iffy attempt to motivate young voters, who overwhelmingly oppose pot prohibition. Biden claimed he was "expunging thousands of convictions for the mere possession" of marijuana, which is not true, and declared that "no one should be jailed for simply using" marijuana—a proposition that was on the cutting edge of drug policy half a century ago.

Contrary to what Biden said, his pardons for people convicted of simple possession under federal law do not entail expungement of criminal records because there is no way to accomplish that without new legislation. The distinction matters because Biden has emphasized that "criminal records for marijuana possession" create "needless barriers to employment, housing, and educational opportunities." His pardons do not remove those barriers. The certificates that pardon recipients can obtain might carry weight with landlords or employers, but there is no guarantee of that.

In other words, Biden has not delivered on his campaign promise to "automatically expunge all prior cannabis use convictions." Yet Biden claimed otherwise last night, conflating pardons with expungements that would mean people convicted of simple possession no longer "have it on their record."

What about the idea that people should not be arrested simply for using marijuana? During his 2020 campaign, Biden promised to "decriminalize the use of cannabis." His pardons do not accomplish that goal either. Federal law still treats simple marijuana possession as a misdemeanor punishable by a minimum $1,000 fine and up to a year in jail. In any event, all but a tiny percentage of simple possession cases are prosecuted under state law.

"Biden made two promises on marijuana reform on the 2020 campaign trail—to decriminalize marijuana use and expunge records—and he has failed to deliver either," notes Cat Packer, director of drug markets and legal regulation at the Drug Policy Alliance. "Biden's pardons haven't released anyone from prison or expunged anyone's records."

We might credit Biden for at least having his heart in the right place if he had ventured to say that marijuana use should not be treated as a crime back in the 1970s, when that idea first gained traction. In 1972, the same year that Biden was elected to his first term in the U.S. Senate, the National Commission on Marihuana and Drug Abuse recommended decriminalization of marijuana possession for personal use. It also recommended that "casual distribution of small amounts of marihuana for no remuneration, or insignificant remuneration, no longer be an offense."

Those recommendations were especially striking in light of the commission's composition. Most of its members had been appointed by President Richard Nixon, a law-and-order Republican, and it was chaired by Raymond Shafer, a Republican who had just completed a term as Pennsylvania's governor.

That decade, nearly a dozen states, beginning with Oregon in 1973, took the commission's advice, typically changing low-level possession from a criminal offense to a civil violation punishable by a modest fine. President Jimmy Carter endorsed decriminalization in 1977, when he told Congress that "penalties against possession of a drug should not be more damaging to an individual than the use of the drug itself."

That wave of reform was followed by an anti-drug backlash in which Carter's successor, Ronald Reagan, figured prominently. So did Biden. "We have to hold every drug user accountable," he declared in a 1989 speech that faulted Republicans for not being tough enough on the issue, because "if there were no drug users, there would be no appetite for drugs, and there would be no market for them."

Biden now presents himself as a recovering drug warrior who has seen the error of his ways. During his 2020 campaign, he conceded that the scientifically baseless penal distinction between crack and cocaine powder, which resulted in glaring racial disparities, was "a big mistake." He switched from pushing mandatory minimums to advocating their elimination. And he said the federal government should "leave decisions regarding legalization for recreational use up to the states."

That last promise cannot be fulfilled as long as federal prohibition remains in place. Until marijuana is descheduled, state-licensed marijuana businesses will remain criminal enterprises under federal law, which makes it hard for them to obtain financial services and exposes them to the risk of prosecution and civil forfeiture. For businesses that serve the recreational market, prosecutorial discretion is the only protection against that risk.

Reclassifying marijuana as a Schedule III drug, another move that Biden touted last night, would leave federal prohibition essentially untouched. It would not decriminalize the cannabis industry or remove the various legal disabilities triggered by participation in that industry or by cannabis consumption, such as the loss of Second Amendment rights and ineligibility for admission, legal residence, and citizenship under immigration law. Rescheduling would not even make marijuana legally available as a prescription medicine, which would require approval of specific products by the Food and Drug Administration.

Until marijuana is "removed from the Controlled Substances Act entirely," Packer notes, "federal criminalization will continue to ruin countless lives, create barriers to jobs, housing, food, and education and disproportionately harm Black and Brown communities. If Biden is truly committed to ending the failures of federal marijuana criminalization he should: expand pardons and commutations beyond simple possession cases; end marijuana-based deportations of noncitizens; direct his administration to revise policies related to marijuana, including access to housing and food assistance programs; and call on the DEA and Congress to federally decriminalize marijuana by descheduling it."

Biden has stubbornly resisted federal legalization, saying he is worried that marijuana might be a "gateway" to other, more dangerous drugs—an argument that pot prohibitionists have been deploying since at least the early 1950s. That position flies in the face of public opinion. According to the latest Gallup poll, 70 percent of Americans, including 87 percent of Democrats, favor legalization.

Support for repealing pot prohibition is especially strong among younger voters, whose behavior in November could be crucial to Biden's reelection. It is therefore not surprising that his campaign is trying to boost turnout among those voters by bragging that Biden "changed federal marijuana policy" (which so far is not accurate) because "nobody should have to go to jail just for smoking weed," which almost never happens under current law and won't happen less often as a result of Biden's pardons or rescheduling.

Even if Biden had the power to unilaterally decriminalize low-level marijuana possession, that step would not address today's central cannabis issue, which is the conflict between federal law and the laws of the 38 states that have legalized marijuana for medical use, including two dozen, accounting for most of the U.S. population, that also allow recreational use. Instead of addressing that issue, which is what an overwhelming majority of his supporters would like him to do, Biden is acting as if it is still 1972.

The post Biden's Inaccurate and Inadequate Lip Service to Marijuana Reform Ignores Today's Central Cannabis Issue appeared first on Reason.com.

Last July, the New Mexico chapter of Mothers Against Drunk Driving (MADD) picked Honorio Alba Jr., a member of the Albuquerque Police Department's DWI unit, as "Officer of the Year." A few months later, Albuquerque's Civilian Police Oversight Agency received a letter about "questionable conduct" by Alba. Instead of arresting an intoxicated driver who nearly caused a crash while speeding and subsequently drove onto a curb, Alba reportedly had referred him to a specific local attorney. That letter triggered a corruption investigation, and last week Alba resigned prior to a scheduled interview with his department's internal affairs division.

Alba was one of five Albuquerque officers who were placed on administrative leave pending the outcome of the internal probe and a related FBI investigation. Another officer, Lt. Justin Hunt, resigned a few weeks ago. The FBI is looking into allegations that Alba and his colleagues got paid to make DWI cases disappear by failing to testify. Although no charges have been filed yet, FBI agents have executed search warrants at cops' homes and at the office of Thomas Clear, an Albuquerque attorney who specializes in DWI cases.

Albuquerque Police Chief Harold Medina has promised to "leave no stone unturned and make sure that we get to the bottom of this." But Medina himself is the subject of an internal investigation that he requested after he broadsided a car last month, severely injuring the driver. Medina's fishy account of that incident is apt to reinforce the public distrust generated by the corruption scandal.

In response to the corruption allegations, the Bernalillo County District Attorney's Office dropped some 200 DWI cases, saying it could not rely on the testimony of the cops who had made the arrests. KOB, the NBC affiliate in Albuquerque, reports that Alba was the arresting officer in many of those cases. KRQE, the local CBS affiliate, looked at DWI cases filed during the previous six years. It found that another cop who was placed on leave, Joshua Montaño, "was named as the officer in at least 36 cases" in which the defendants were represented by Clear, and "nearly 90% of those cases ended in dismissals."

Speaking in general terms about the corruption investigation at a February 2 press conference, Chief Medina noted that DWI cases often are dismissed when officers are unavailable to testify, an outcome that defense attorneys can make more likely by seeking trial delays. "Systems that struggle, systems that have loopholes, are really open to corruption," Medina said. "We're dealing with stuff that we anticipate started decades ago, and we've done a lot of things that have got us to this point. But we will continue to dig and look and leave no stone unturned and make sure that we get to the bottom of this."

That promise of transparency and accountability was undermined two weeks later, when Medina ran a red light and collided with a car that had the right of way. On Saturday, February 17, according to a press release from the Albuquerque Police Department (APD), Medina "was headed to a news conference in his unmarked department issued vehicle"—a pickup truck—"with his wife." They were in the left turn lane on Alvarado Drive NE at the intersection with Central Avenue when they "witnessed two individuals fighting." They "then saw one of the individuals pull out a gun," and "shots were fired." Since "Chief Medina and his wife were in the direct line of fire," he "took evasive action through the intersection to get his vehicle away from the gunfire."

The official account describes what happened next without reference to Medina's culpability. "A gold Mustang was traveling eastbound on Central and continued forward as Chief Medina was entering the intersection," it says, "and the vehicles collided."

Medina gives a more detailed account in a video he recorded a few days after the crash. "When we were driving down Central," he says, "I noticed that there could possibly be a homeless encampment on Alvarado north of Central." He took a detour and drove past the encampment, planning to call an underling about it. At the intersection of Alvarado and Central, he stopped for a red light. "My wife stated, 'Look, those two homeless individuals are about to get into a fight,'" he said. "My wife stated, 'gun, gun.' I looked up, and I could hear that a shot had been fired, and I saw an individual that was holding a firearm pointing it at another individual who was directly in line with my wife."

Medina decided "the best thing I could do was get my wife out of the way and regroup and see what the best response would be." He claims he proceeded with care. "I looked to my left, and the intersection was cleared," he says. "I thought that…the car was going to pass before I got there, and it did not. And unfortunately, I struck the vehicle. The occupant of the other vehicle was injured, and it's just another sign of how gun violence sometimes impacts our community."

Former Bernalillo County Sheriff Darren White, a former crash investigator, was skeptical of that self-exculpating story after examining surveillance video of the accident. "It's clear by the video that that wasn't the case," he told KOAT, the ABC affiliate in Albuquerque. "He cuts off a vehicle immediately. That's westbound on Central. Had to slam on its brakes. You can see that. And then he bolts across what is potentially one of the busiest roadways in the state of New Mexico and broadsides a car."

As White sees it, "the chief was not looking" because "he was distracted by something." He added, "I don't mean the shooting" because Medina was "already across the intersection" at that point.

Tom Grover, a local attorney who represents police officers accused of misconduct, sees several possible policy violations. In an interview with KOAT, "Grover said some of the violations the chief could be in trouble for include having his wife in the car and taking police action, not having his radio turned on and not turning on his lights and siren" when "he ran the red light."

Medina also belatedly activated his body camera. "My camera wasn't on at the beginning of this incident," he says in the video. "I think that everybody's been held accountable for cameras, and I wanted to make sure that I was investigated…Did I have time to turn this on? Was it proper for me to have it on before then?"

KOAT notes that "some say officers have been fired for similar conduct." In 2017, for example, an Albuquerque police officer "was rushing with lights and sirens to a call of a man armed with a machete when a car pulled out in front of him. The person driving that car died in the crash. The city fired the officer and paid more than $3 million in a civil suit." In 2013, a 21-year-old woman died after another Albuquerque officer "sped through a red light at Paseo Del Norte and Eagle Ranch, hitting her car." The city paid $8.5 million to settle a lawsuit by her family. The officer was convicted of careless driving and sentenced to 90 days in jail.

Albuquerque Mayor Tim Keller appeared unfazed by Medina's seemingly similar conduct. "Whether it's our city or the individuals that he helped, or potentially the lives that he saved because of the shooting that was happening," Keller said after the crash, "we all owe him a debt of gratitude today and every day."

This week the Albuquerque City Council rejected a proposal for an independent task force to investigate the incident. The members who voted against the idea noted that Victor Valdez, the former judge who has been charged with investigating the crash as the APD's superintendent of police reform, does not report to the chief.

"I would hope that there is no bias, but it appears like there possibly could be," said City Councilor Renee Grout, one of four council members who favored the task force. "We just need to have some accountability. We need to have transparency. I don't think that it would hurt to have this outside investigation. I think it would help the community have better trust in our APD force."

The post New Mexico MADD 'Officer of the Year' Resigns Amid DWI Corruption Scandal appeared first on Reason.com.

The state of California employed Kendall Jones as a correctional officer for 29 years and as a firearms and use-of-force trainer for 19 years. But in 2018, when Jones sought to renew the certificate of eligibility required for firearms instructors, the California Department of Justice (DOJ) informed him that he was not allowed to possess guns under state law because of a 1980 Texas conviction for credit card abuse. Jones committed that third-degree felony in Houston when he was 19, and his conviction was set aside after he completed a probation sentence.

According to the DOJ, that did not matter: Because of his youthful offense, which Jones said involved a credit card he had obtained from someone who falsely claimed he was authorized to use it, the longtime peace officer was permanently barred from owning or possessing firearms in California. That application of California law violated the Second Amendment, a federal judge ruled this week in Linton v. Bonta, which also involves two other similarly situated plaintiffs.

"Plaintiffs were convicted of non-violent felonies decades ago when they were in the earliest years of adulthood," U.S. District Judge James Donato, a Barack Obama appointee, notes in an order granting them summary judgment. "Each conviction was set aside or dismissed by the jurisdiction in which the offense occurred, and the record indicates that all three plaintiffs have been law-abiding citizens in every respect other than the youthful misconduct. Even so, California has acted to permanently deny plaintiffs the right to possess or own firearms solely on the basis of the original convictions." After considering the state's cursory defense of those determinations, Donato thought it was clear that California had "violated the Second Amendment rights of the individual plaintiffs."

Like most jurisdictions, California prohibits people with felony records from buying, owning, receiving, or possessing firearms. That ban encompasses offenses that did not involve weapons or violence, and it applies regardless of how long ago the crime was committed. Federal law imposes a similar disqualification, which applies to people convicted of crimes punishable by more than a year of incarceration (or more than two years for state offenses classified as misdemeanors). But the federal law makes an exception for "any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored."

California's policy is different. "The DOJ will permit a person with an out-of-state conviction to acquire or possess a firearm in California only if the conviction was reduced to a misdemeanor, or the person obtained a presidential or governor's pardon that expressly restores their right to possess firearms," Donato explains. The requirements for California convictions are similar.

In Jones' case, the same state that suddenly decided he was not allowed to possess guns employed him as the primary armory officer at the state prison in Solano, where he specialized in "firearms, chemical agents, batons and use of deadly force training," for nearly two decades. Despite all that experience, the sudden denial of his gun rights put an end to his work as a law enforcement firearms and use-of-force instructor in California. The other two plaintiffs told similar stories of losing their Second Amendment rights based not only on nonviolent offenses that happened long ago but also on convictions that were judicially nullified.

According to the 2018 complaint that Chad Linton filed in the U.S. District Court for the Northern District of California, he was pulled over by state police in 1987, when he was serving in the U.S. Navy at Naval Air Station Whidbey Island in Washington. The complaint concedes that Linton was "traveling at a high rate of speed" on his motorcycle while "intoxicated" and that he initially "accelerated," thinking "he might be able to outrun" the cops before he "reconsidered that idea, pulled over to the side of the highway, and voluntarily allowed the state trooper to catch up to him."

Linton was charged with driving under the influence, a misdemeanor, and attempting to evade a police vehicle, a Class C felony. He pleaded guilty to both charges and received a seven-day sentence, time he had already served. In 1988, he "received a certificate of discharge, showing that he successfully completed his probation." It "included a statement that 'the defendant's civil rights lost by operation of law upon conviction [are] HEREBY RESTORED.'"

Linton, who was born and raised in California, returned there in 1988 after he was discharged from the Navy. He successfully purchased several firearms after passing background checks. But when he tried to buy a handgun in 2015, the DOJ told him he was disqualified because of the 1987 felony conviction. In response, he asked the Superior Court of Washington to vacate that conviction, which it did in April 2016. The order "set aside" the conviction and released Linton "from all penalties and disabilities resulting from the offense." But when he tried to buy a rifle in November 2016, he was rejected.

The same thing happened in March 2018, when Linton tried to buy a revolver for home protection. The following month, Donato notes, "DOJ agents came to Linton's home and seized several firearms from him that he had legally acquired and owned for years, including an 'antique, family-heirloom shotgun.'"

Although Linton moved to Nevada in 2020, partly because of these experiences, he still owns a cabin in California. He said he felt "unsafe and unprotected" there "without at least the option of having appropriate firearms available or at hand if needed." He added that he "would like to be able to possess or handle firearms or ammunition for  recreational purposes, such as target shooting," while visiting friends and relatives in California.

Paul McKinley Stewart's disqualifying offense dates back even further than Jones' and Linton's. In 1976, when he was 18 and living in Arizona, he "stole some tools from an unlocked truck in a commercial yard." He was found guilty of first-degree burglary, a felony, and served three years of probation, after which he was told that his conviction had been dismissed.

Stewart moved to California in 1988 and tried to buy firearms in 2014 or 2015 (the record is unclear on the exact date). The DOJ "advised him that he was 'disqualified' from purchasing or possessing firearms 'due to the presence of a prior felony conviction.'" Like Linton, Stewart went back to the court of conviction. In August 2016, Donato notes, the Arizona Superior Court "ordered 'that the civil rights lost at the time of sentencing are now restored,' 'set aside [the] judgment of guilt,' ordered the 'dismissal of the Information/Indictment,' and expressly held that the restored rights 'shall include the right to possess weapons.'" The DOJ nevertheless blocked a gun purchase that Stewart attempted in February 2018, citing the 1976 conviction that officially no longer existed.

Defending these denials in federal court, the state argued that the plaintiffs were not part of "the people" whose "right to keep and bear arms" is guaranteed by the Second Amendment because they were not "law-abiding, responsible citizens." In California's view, Donato writes, "a single felony conviction permanently disqualifies an individual from being a 'law-abiding, responsible citizen' within the ambit of the Second Amendment." He sees "two flaws" that "vitiate this contention."

First, Donato says, "undisputed facts" establish that all three plaintiffs are "fairly described as law-abiding citizens." Judging from the fact that "California entrusted Jones with the authority of a sworn peace officer, and with the special role of training other officers in the use of force," that was the state's view of him until 2018, when he was peremptorily excluded from "the people." And as with Jones, there is no indication that the other two plaintiffs have been anything other than "law-abiding" since their youthful offenses. "Linton is a veteran of the United States Navy with a clean criminal record for the past 37 years," Donato notes. "Stewart has had a clean criminal record for the past 48 years."

Second, Donato says, California failed to identify any "case law supporting its position." In the landmark Second Amendment case District of Columbia v. Heller, he notes, the Supreme Court "determined that 'the people,' as used throughout the Constitution, 'unambiguously refers to all members of the political community, not an unspecified subset.'" That holding, he says, creates a "strong presumption" that California failed to rebut.

Donato notes that the U.S. Court of Appeals for the 3rd Circuit rejected California's argument in no uncertain terms last year, when it restored the Second Amendment rights of Bryan Range, a Pennsylvania man who had been convicted of misdemeanor food stamp fraud. "Heller and its progeny lead us to conclude that Bryan Range remains among 'the people' despite his 1995 false statement conviction," the 3rd Circuit said. "The Supreme Court's references to 'law-abiding, responsible citizens' do not mean that every American who gets a traffic ticket is no longer among 'the people' protected by the Second Amendment."

Since Jones, Linton, and Stewart are part of "the people," California had the burden of showing that disarming them was "consistent with this Nation's historical tradition of firearm regulation"—the test that the Supreme Court established in the 2022 case New York State Rifle & Pistol Association v. Bruen. "California did not come close to meeting its burden," Donato writes. It did little more than assert that Americans have Second Amendment rights only if they are "virtuous," a criterion that is highly contested and in any case would seem to be satisfied by the plaintiffs' long histories as productive and law-abiding citizens.

"California otherwise presented nothing in the way of historical evidence in support of the conduct challenged here," Donato says. "It did not identify even one 'representative analogue' that could be said to come close to speaking to firearms regulations for individuals in circumstances akin to plaintiffs'. That will not do under Bruen."

Donato rejected "California's suggestion that it might have tried harder if the Court had asked." Under Bruen, "the government bears the burden of proving the element of a national historical tradition," he writes. "California had every opportunity to present any historical evidence it believed would carry its burden. It chose not to do so."

Donato was dismayed by the state's attitude. "The Court is not a helicopter parent," he writes. "It is manifestly not the Court's job to poke and prod litigants to live up to their burdens of proof."

The policy that Jones, Linton, and Stewart challenged seems inconsistent with California's criminal justice reforms, such as marijuana legalization and the reclassification of many felonies as misdemeanors. It is also inconsistent with the way California treats voting rights, which are automatically restored upon sentence completion. Gun rights in California, by contrast, are easy to lose and hard to recover, even when they have been restored by courts in other states. That disparity seems to reflect the California political establishment's reflexive hostility to the Second Amendment.

"This case exposes the hypocrisy of California's treatment of those convicted of non-violent crimes," says Cody J. Wisniewski, an attorney with the Firearms Policy Coalition, one of several gun rights groups that joined the lawsuit. "While California claims to be tolerant of those that have made mistakes in the past, that tolerance ends when it comes to those individuals [who want] to exercise their right to keep and bear arms. Now, the state has no choice but to recognize the rights of peaceable people."

The post California Violated the Second Amendment by Disarming People Based on Nullified Convictions appeared first on Reason.com.

"I'm just floored and shocked," Rankin County, Mississippi, Sheriff Bryan Bailey said last August after five of his former deputies admitted to punching, kicking, tasing, torturing, and humiliating two men during an unlawful home invasion the previous January. "This is a perfect example of why people don't trust the police, and never in my life did I think it would happen in this department."

According to an investigation by The New York Times and Mississippi Today, however, Bailey had plenty of reasons to think something like this would happen in his department. Similar things had been happening in Rankin County "for nearly two decades," the Times reported in November.

"Narcotics detectives and patrol officers, some [of whom] called themselves the Goon Squad, barged into homes in the middle of the night, accusing people inside of dealing drugs," the paper said. "Then they handcuffed or held them at gunpoint and tortured them into confessing or providing information."

The Times and Mississippi Today corroborated "17 incidents involving 22 victims based on witness interviews, medical records, photographs of injuries and other documents." Those cases almost always involved "small drug busts," and the accusers "described similar tactics." Deputies "held people down while punching and kicking them or shocked them repeatedly with Tasers." They "shoved gun barrels into people's mouths." Three people "said deputies had waterboarded them until they thought they would suffocate," while "five said deputies had told them to move out of the county."

Although the federal charges that drew national attention to police brutality in Rankin County involved two black victims, Bailey's deputies were equal-opportunity abusers. They "appear to have targeted people based on suspected drug use, not race," the Times said. "Most of their accusers were white."

The deputies' pattern of abuse was reflected in complaints and lawsuits. "More than a dozen people have directly confronted Sheriff Bailey and his command staff about the deputies' brutal methods," the Times noted, and "at least five people have sued the department alleging beatings, chokings and other abuses by deputies associated with the Goon Squad."

Bailey said he had never heard of the Goon Squad and had no reason to think his deputies were abusing their authority. "Nobody's ever reported that to me," he said in August, and he "never, ever could've imagined" that the five convicted deputies, who included a man he said he knew "well" and had chosen as investigator of the year in 2013, were capable of "these horrendous crimes."

Bailey, who was reelected in November after running unopposed, rejected calls for his resignation. "I'm going to fix this," he promised. "I'm going to make everyone a whole lot more accountable."

The post Sheriff Who Presided Over Violent 'Goon Squad' Tries To Play Dumb appeared first on Reason.com.

On March 26, 2019, every American who owned a bump stock, a rifle accessory that facilitates rapid firing, was suddenly guilty of a federal felony punishable by up to 10 years in prison. That did not happen because a new law took effect; it happened because federal regulators reinterpreted an existing law to mean something they had long said it did not mean.

On Wednesday, the U.S. Supreme Court considered the question of whether those bureaucrats had the authority to do that. The case, Garland v. Cargill, turns on whether bump stocks are prohibited under the "best reading" of the federal statute covering machine guns. While several justices were clearly inclined to take that view, several others had reservations.

The products targeted by the government are designed to assist bump firing, which involves pushing a rifle forward to activate the trigger by bumping it against a stationary finger, then allowing recoil energy to push the rifle backward, which resets the trigger. As long as the shooter maintains forward pressure and keeps his finger in place, the rifle will fire repeatedly. The "interpretive rule" at issue in this case, which was published in December 2018 and took effect three months later, bans stock replacements that facilitate this technique by allowing the rifle's receiver to slide back and forth.

Officially, the purpose of that rule was merely to "clarify" that bump stocks are illegal. According to the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), they always have been, although no one (including the ATF) realized that until 2018.

Federal law defines a machine gun as a weapon that "automatically" fires "more than one shot" by "a single function of the trigger." The definition also covers parts that are "designed and intended…for use in converting a weapon" into a machine gun.

During Wednesday's oral arguments, Principal Deputy Solicitor General Brian H. Fletcher maintained that a rifle equipped with a bump stock plainly meets the criteria for a machine gun. It "fires more than one shot by a single function of the trigger," he said, because "a function of the trigger happens when some act by the shooter, usually a pull, starts a firing sequence." An ordinary semi-automatic rifle, according to Fletcher, "fires one shot for each function of the trigger because the shooter has to manually pull and release the trigger for every shot." But "a bump stock eliminates those manual movements and allows the shooter to fire many shots with one act, a forward push."

Fletcher argued that a rifle with a bump stock also "fires more than one shot automatically, that is, through a self-regulating mechanism." After "the shooter presses forward to fire the first shot," he said, "the bump stock uses the gun's recoil energy to create a continuous back-and-forth cycle that fires hundreds of shots per minute."

Jonathan F. Mitchell, the attorney representing Michael Cargill, the Texas gun shop owner who challenged the bump stock ban, argued that Fletcher was misapplying both of those criteria. First, he said, a rifle equipped with a bump stock "can fire only one shot per function of the trigger because the trigger must reset after every shot and must function again before another shot can be fired." The trigger "is the device that initiates the firing of the weapon, and the function of the trigger is what that triggering device must do to cause the weapon to fire," he added. "The phrase 'function of the trigger' can refer only to the trigger's function. It has nothing to do with the shooter or what the shooter does to the trigger because the shooter does not have a function."

Second, Mitchell said, a rifle with a bump stock "does not and cannot fire more than one shot automatically by a single function of the trigger because the shooter, in addition to causing the trigger to function, must also undertake additional manual actions to ensure a successful round of bump firing." That process "depends entirely on human effort and exertion," he explained, because "the shooter must continually and repeatedly thrust the force stock of the rifle forward with his non-shooting hand while simultaneously maintaining backward pressure on the weapon with his shooting hand. None of these acts are automated."

Justices Elena Kagan and Ketanji Brown Jackson seemed eager to accept Fletcher's reading of the law, arguing that it is consistent with what Congress was trying to do when it approved the National Firearms Act of 1934, which imposed tax and registration requirements on machine guns. Although bump stocks did not exist at the time, they suggested, the law was meant to cover any firearm that approximated a machine gun's rate of fire.

According to Fletcher, "a traditional machine gun" can "shoot in the range of 700 to 950 bullets a minute," while a semi-automatic rifle with a bump stock can "shoot between 400 and 800 rounds a minute." As he conceded, however, the statute does not refer to rate of fire. "This is not a rate-of-fire statute," he said. "It's a function statute." To ban bump stocks, in other words, the ATF has to show that they satisfy the disputed criteria.

"It seems like, yes, that this is functioning like a machine gun would," Justice Amy Coney Barrett said. "But, you know, looking at that definition, I think the question is, 'Why didn't Congress pass…legislation to make this cover it more clearly?'"

Justice Neil Gorsuch made the same point. "I can certainly understand why these items should be made illegal," he said, "but we're dealing with a statute that was enacted in the 1930s, and through many administrations, the government took the position that these bump stocks are not machine guns." That changed after a gunman murdered 60 people at a Las Vegas country music festival in October 2017, and it turned out that some of his rifles were fitted with bump stocks.

The massacre inspired several bills aimed at banning bump stocks. Noting that "the ATF lacks authority under the law to ban bump-fire stocks," Sen. Dianne Feinstein (D–Calif.) said "legislation is the only answer." President Donald Trump, by contrast, maintained that new legislation was unnecessary. After he instructed the ATF to ban bump stocks by administrative fiat, the agency bent the law to his will. Noting that "the law has not changed," Feinstein warned that the ATF's "about face," which relied partly on "a dubious analysis claiming that bumping the trigger is not the same as pulling it," would invite legal challenges.

Feinstein was right about that, and one of those challenges resulted in the decision that the government is now asking the Supreme Court to overturn. In January 2023, the U.S. Court of Appeals for the 5th Circuit rejected the ATF's redefinition of machine guns.

"A plain reading of the statutory language, paired with close consideration of the mechanics of a semi-automatic firearm, reveals that a bump stock is excluded from the technical definition of 'machinegun' set forth in the Gun Control Act and National Firearms Act," 5th Circuit Judge Jennifer Walker Elrod wrote in the majority opinion. And even if that were not true, Elrod said, "the rule of lenity," which requires construing an ambiguous criminal statute in a defendant's favor, would preclude the government from punishing people for owning bump stocks.

Gorsuch alluded to Feinstein's prescient concerns about the ATF rule's legal vulnerability: "There are a number of members of Congress, including Senator Feinstein, who said that this administrative action forestalled legislation that would have dealt with this topic directly, rather than trying to use a nearly 100-year-old statute in a way that many administrations hadn't anticipated." The ATF's attempt to do that, he said, would "render between a quarter of a million and a half million people federal felons," even though they relied on guidance from "past administrations, Republican and Democrat," that said bump stocks were legal.

Justices Brett Kavanaugh and Samuel Alito also were troubled by that reversal's implications for people who already owned bump stocks. Fletcher tried to assuage those concerns.

"ATF made [it] very clear in enacting this rule that anyone who turned in their bump stock or destroyed it before March of [2019] would not face prosecution," Fletcher said. "As a practical matter," he added, "the statute of limitations for this offense is five years," meaning prosecutions of people who owned bump stocks before the rule took effect will no longer be possible a month from now. "We have not prosecuted those people," he said. "We won't do it. And if we try to do it, I think they would have a good defense based on entrapment by estoppel," which applies when someone follows official advice in trying to comply with the law.

"What is the situation of people who have possessed bump stocks between the time of the ATF's new rule and the present day or between the time of the new rule and the 5th Circuit decision?" Alito asked. "Can they be prosecuted?" Fletcher's answer: "probably yes." That prospect, Alito said, is "disturbing."

Kavanaugh wondered about gun owners who did not destroy or surrender their bump stocks because they did not know about the ATF's rule. "For prosecuting someone now," he asked, "what mens rea showing would the government have to make to convict someone?" Fletcher said the defendant would "have to be aware of the facts" that, according to the ATF's reinterpretation of the law, make bump stocks illegal. "So even if you are not aware of the legal prohibition, you can be convicted?" Kavanaugh asked. "That's right," Fletcher replied.

"That's going to ensnare a lot of people who are not aware of the legal prohibition," Kavanaugh said. "Why not require the government to also prove that the person knew that what they were doing…was illegal?"

Gorsuch mocked Fletcher's apparent assumption that gun owners can be expected to keep abreast of the ATF's edicts. "People will sit down and read the Federal Register?" he said to laughter. "That's what they do in their evening for fun. Gun owners across the country crack it open next to the fire and the dog."

Maybe not, Fletcher admitted, but the publicity surrounding the ban and the legal controversy it provoked probably brought the matter to many people's attention. "I agree not everyone is going to find out about those things," he said, "but we've done everything the government could possibly do to make people aware."

Beyond the unfairness to gun owners who bought products they quite reasonably thought were legal, the ATF's about-face lends credibility to the complaint that its current interpretation of the law is misguided. If the ATF was wrong before, how can we be confident that it is right now?

According to the agency's new understanding of the statute, Mitchell noted, "function of the trigger" hinges on what the shooter is doing. But "function is an intransitive verb," he said. "It can't take an object grammatically. It's impossible. The trigger has to be the subject of function. It can't be the object."

Gorsuch picked up on that point, noting that the government had likened "function of the trigger" to "a stroke of a key or a throw of the dice or a swing of the bat." But "those are all things that people do," he said. Since function is an intransitive verb, "people don't function things. They may pull things, they may throw things, but they don't function things."

Gorsuch noted that the ATF is relying on "a very old statute" designed for "an obvious problem" posed by gangsters like Al Capone armed with machine guns that fired repeatedly "with a single function of the trigger—that is, the thing itself was moved once." Maybe legislators "should have written something better," he said. "One might hope they might write something better in the future. But that's the language we're stuck with."

What about the ATF's claim that a rifle equipped with a bump stock shoots "automatically"? Fletcher conceded that "an expert" can bump-fire a rifle "without any assistive device at all" and that "you can also do it if you have a lot of expertise by hooking your finger into a belt loop or using a rubber band or something else like that to hold your finger in place." But he added that "we don't think those things function automatically because the definition of 'automatically'" entails "a self-regulating mechanism."

As the government sees it, a shooter creates such a mechanism by using a bump stock, notwithstanding the "manual actions" that Mitchell highlighted. "There's nothing automatic about that," Mitchell argued. "The shooter is the one who is pushing. It's human effort, human exertion. Nothing automatic at all about this process."

Barrett asked Fletcher how the ATF would treat an elastic "bump band" marketed as an accessory to facilitate rapid firing. "Why wouldn't that then be a machine gun under the statute?" she wondered. "We think that's still not functioning automatically because that's not a self-regulating mechanism," Fletcher replied.

Mitchell, by contrast, argued that Barrett's hypothetical product and a bump stock are "indistinguishable when it comes to 'automatically.'" Bump firing with either involves "a manual action undertaken entirely by the shooter," he said. "There is no automating device….It is all being done by the shooter."

Justice Sonia Sotomayor, who was sympathetic to Fletcher's argument, nevertheless implied that the legal status of bump stocks might not be as clear as the government suggests. "The back-and-forth here leads me to believe that at best there might be some ambiguity," she said. But if the statute is in fact unclear, the 5th Circuit said, the ambiguity should be resolved in a way that protects gun owners from prosecution for a crime invented by bureaucrats.

The post SCOTUS Ponders the Implications of Prosecuting Gun Owners for a Crime Invented by Bureaucrats appeared first on Reason.com.

A large majority of Americans—70 percent, according to the latest Gallup poll—support marijuana legalization, and that sentiment is especially strong among younger voters. Gallup found that 79 percent of 18-to-34-year-olds thought marijuana should be legal, compared to 64 percent of adults 55 or older. Similarly, a Pew Research Center survey found that support for legalization was inversely correlated with age. It therefore makes sense that President Joe Biden, who has generated little enthusiasm among Americans of any age group, would try to motivate young voters by touting his support for "marijuana reform."

The problem for Biden, a longtime drug warrior who is now presenting himself as a reformer, is that his position on marijuana falls far short of repealing federal prohibition, which is what most Americans say they want. His outreach attempts have clumsily obfuscated that point, as illustrated by a video that Vice President Kamala Harris posted on X (formerly Twitter) earlier this month.

"In 2020," Harris writes in her introduction, "young voters turned out in record numbers to make a difference. Let's do it again in 2024." The video highlights "the largest investment in climate action in history," cancellation of "$132 billion in student debt," "the first major gun safety legislation in nearly 30 years," and $7 billion in subsidies for historically black colleges and universities. Then Harris says this: "We changed federal marijuana policy, because nobody should have to go to jail just for smoking weed." That gloss is misleading in several ways.

Biden has not actually "changed federal marijuana policy." His two big moves in this area were a mass pardon for people convicted of simple possession under federal law and a directive that may soon result in moving marijuana from Schedule I of the Controlled Substances Act, a category supposedly reserved for drugs with a high abuse potential and no recognized medical use that cannot be used safely even under a doctor's supervision, to Schedule III, which includes prescription drugs such as ketamine, Tylenol with codeine, and anabolic steroids.

Although Harris, echoing Biden, says "nobody should have to go to jail just for smoking weed," that rarely happens. Biden's pardons, which excluded people convicted of growing or distributing marijuana, did not free a single prisoner, and they applied to a tiny fraction of possession cases, which are typically prosecuted under state law.

When he announced the pardons in October 2022, Biden noted that "criminal records for marijuana possession" create "needless barriers to employment, housing, and educational opportunities." But his pardons do not remove those barriers. They do not entail expungement of marijuana records, which is currently not possible under federal law. The certificates that pardon recipients can obtain might carry weight with landlords or employers, but there is no guarantee of that.

Biden's pardons also did not change federal law, which still treats simple marijuana possession as a misdemeanor punishable by a minimum $1,000 fine and up to a year in jail. So people can still be arrested for marijuana possession under federal law, even if they are unlikely to serve time for that offense (which would be true with or without Biden's pardons). The pardons that Biden announced on October 6, 2022, applied only to offenses committed "on or before the date of this proclamation." When he expanded those pardons on December 22, 2023, that became the new cutoff.

Marijuana use still can disqualify people from federal housing and food assistance. Under immigration law, marijuana convictions are still a bar to admission, legal residence, and citizenship. And cannabis consumers, even if they live in states that have legalized marijuana, are still prohibited from possessing firearms under 18 USC 922(g)(3), which applies to any "unlawful user" of a "controlled substance."

The Biden administration has stubbornly defended that last policy against Second Amendment challenges in federal court, where government lawyers have likened cannabis consumers to dangerous criminals and "lunatics." Worse, Biden signed the Bipartisan Safer Communities Act of 2022, which increased the maximum prison sentence for marijuana users who own guns from 10 years to 15 years and created a new potential charge against them, which likewise can be punished by up to 15 years behind bars. This is the very same law that Harris touts as "the first major gun safety legislation in nearly 30 years."

Biden, in short, has neither "decriminalize[d] the use of marijuana" nor "automatically expunge[d] all marijuana use convictions," as Harris promised on the campaign trail. Both of those steps would require congressional action that Biden has done little to promote.

What about rescheduling? A recent poll commissioned by the Coalition for Cannabis Scheduling Reform, Marijuana Moment reports, found that "voters' impression of the president jumped a net 11 points" after they were informed about "the implications of the rescheduling review that the president initiated." That included "an 11-point favorability swing among young voters 18-25," who "will be critical to his reelection bid."

But let's not get too excited. Since rescheduling has not happened yet, it is not true that Biden "changed federal marijuana policy" in this area either. And assuming that the Drug Enforcement Administration moves marijuana to Schedule III, as the Department of Health and Human Services recommended last August in response to Biden's directive, the practical impact would be limited. Rescheduling would facilitate medical research, and it would allow state-licensed marijuana suppliers to deduct business expenses when they file their federal tax returns, which is currently prohibited under Section 280E of the Internal Revenue Code.

Even after rescheduling, however, marijuana businesses would remain criminal enterprises under federal law, which makes it hard for them to obtain financial services and exposes them to the risk of prosecution and asset forfeiture. For businesses that serve recreational consumers, prosecutorial discretion is the only protection against that risk. Cannabis consumers would still have no legally recognized right to own guns, and people who work in the cannabis industry would still face other disabilities under federal law, including life-disrupting consequences for immigrants. Rescheduling would not even make marijuana legally available as a prescription medicine, which would require approval of specific products by the Food and Drug Administration.

In response to overwhelming public support for marijuana legalization, in other words, Biden has made modest moves that leave federal prohibition essentially untouched. While he does not have the authority to unilaterally deschedule marijuana, he cannot even bring himself to support legislation that would do that. Why not?

During the 2020 campaign, Biden echoed seven decades of anti-pot propaganda, saying he was worried that marijuana might be a "gateway" to other, more dangerous drugs. "The truth of the matter is, there's not nearly been enough evidence that has been acquired as to whether or not it is a gateway drug," he said. "It's a debate, and I want a lot more before I legalize it nationally. I want to make sure we know a lot more about the science behind it….It is not irrational to do more scientific investigation to determine, which we have not done significantly enough, whether or not there are any things that relate to whether it's a gateway drug or not."

After Biden took office, his press secretary confirmed that his thinking had not changed. "He spoke about this on the campaign," she said. "He believes in decriminalizing the use of marijuana, but his position has not changed."

Biden's rationale for opposing legalization is the same line of argument that Harry J. Anslinger, who headed the Federal Bureau of Narcotics from 1930 to 1962, began pushing in the early 1950s after retreating from his oft-reiterated claim that marijuana causes murderous madness. "Over 50 percent of those young [heroin] addicts started on marijuana smoking," he told a congressional committee in 1951. "They started there and graduated to heroin; they took the needle when the thrill of marijuana was gone."

Anslinger reiterated that point four years later, when he testified in favor of stricter penalties for marijuana offenses. "While we are discussing marijuana," a senator said, "the real danger there is that the use of marijuana leads many people eventually to the use of heroin." Anslinger agreed: "That is the great problem and our great concern about the use of marijuana, that eventually if used over a long period, it does lead to heroin addiction."

Since then, a great deal of research has examined this issue, which is complicated by confounding variables that make the distinction between correlation and causation elusive. Biden nevertheless thinks "more scientific investigation" will reach a definitive conclusion. If he won't support legalization until we know for sure whether marijuana is a "gateway drug," he will never support legalization.

The supposedly reformed drug warrior's intransigence on this issue poses an obvious challenge for Harris, a belated legalization supporter who is trying to persuade voters who take the same view that Biden is simpatico. Marijuana Moment reports that Harris' staff recently has been reaching out to marijuana pardon recipients, "seeking assurance that the Justice Department certification process is going smoothly and engaging in broader discussions about cannabis policy reform."

According to Chris Goldstein, a marijuana activist who was pardoned for a 2014 possession conviction, the vice president's people get it. Goldstein was "surprised by how up to speed and nice everybody was," he told Marijuana Moment. "Her staff really did know the difference between rescheduling [and] descheduling, and they were interested to talk about it."

No doubt Biden also understands the difference. The problem is that he supports the former but not the latter, which he rejects for Anslinger-esque reasons. Cheery campaign videos cannot disguise that reality.

The post Biden Is Trying To Motivate Voters Who Oppose Pot Prohibition. Maybe He Should Stop Supporting It. appeared first on Reason.com.

As Donald Trump tells it, all of the civil and criminal cases against him are part of a Democratic conspiracy to keep him from returning to the White House. Although some of the many charges against him involve credible allegations of serious crimes, they have been overshadowed recently by two New York cases that are much weaker.

In 2016, Manhattan District Attorney Alvin Bragg says, Trump "corrupt[ed] a presidential election" by concealing embarrassing information from voters. And according to New York Attorney General Letitia James, whose lawsuit resulted in a staggering "disgorgement" order against Trump last week, he defrauded lenders and insurers by habitually inflating the value of his assets.

Bragg and James, both Democrats, argue that Trump was dishonest, which will not come as news to anyone who has been paying attention to the persistent gap between reality and his public statements on matters large and small. But neither Bragg nor James has been able to explain exactly who was victimized by the misrepresentations they cite.

Bragg's criminal case, which is now scheduled for trial on March 25, charges Trump with 34 counts of falsifying business records. Each of those is based on an invoice, check, or ledger entry that allegedly was designed to disguise Trump's reimbursement of a $130,000 payment that Michael Cohen, his former lawyer, gave porn star Stormy Daniels shortly before the 2016 election to keep her from talking about her alleged affair with Trump.

Falsifying business records—in this case, mischaracterizing the payments to Cohen as compensation for legal services—is ordinarily a misdemeanor. But Bragg is charging Trump with 34 felonies, each punishable by up to four years in prison, because he allegedly was trying to cover up "another crime."

Bragg says the "criminal activity" that Trump sought to "conceal" included "attempts to violate state and federal election laws." That claim is based on legal interpretations so iffy that Bragg's predecessor, Cyrus R. Vance Jr., rejected them after lengthy consideration.

Explaining why he nevertheless is trying to convert one hush payment into 34 felonies, Bragg complains that Trump "hid damaging information from the voting public during the 2016 presidential election." Although Bragg says that offense is "the heart of the case," it is not a crime: If Daniels had simply agreed not to talk about the alleged affair after Trump asked her nicely, the result would have been the same.

James' case likewise lacks any measurable injury to a specific victim, which is not required by the New York law she used to sue Trump. Although she presented plenty of evidence that Trump overvalued his properties and exaggerated his wealth, she did not show that lenders or insurers suffered any losses as a result.

Most notoriously, Trump claimed his apartment in Manhattan's Trump Tower was 30,000 square feet, nearly three times its actual size. He valued Mar-a-Lago, his golf resort in Palm Beach, based on the assumption that it could be sold for residential purposes, which the deed precluded.

New York County Supreme Court Justice Arthur Engoron also found that the Trump Organization had treated rent-stabilized apartments as if they were not subject to that restriction, assumed regulatory permission for construction that had not in fact been approved, failed to discount expected streams of revenue, dramatically departed from estimates by professional appraisers, and counted Trump's limited partnership interest in a real estate company as cash even though he could not access the money without the company's consent. But the sum that Engoron ordered Trump to pay, which totals nearly half a billion dollars with interest, was styled as "disgorgement" of "ill-gotten gains," not as compensation for damages.

That's because James was not able to identify any damages to lenders or insurers, which she was not legally obliged to do. As in Bragg's case, the striking absence of any injury commensurate with the punishment lends credibility to Trump's reflexive complaint that he is the victim of a partisan vendetta.

© Copyright 2024 by Creators Syndicate Inc.

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WikiLeaks founder Julian Assange has been imprisoned in London for nearly five years, pending extradition to the United States so he can be prosecuted for violating the Espionage Act by publishing classified information. Since that amount of time behind bars is about the same as the four-to-six-year prison term that Justice Department lawyers have said Assange would be likely to serve if convicted, you might think the Biden administration would be ready to reconsider this case, especially since it poses an alarming threat to freedom of the press. Instead, the U.S. government's lawyers are back in London for yet another hearing, which Assange's attorneys describe as a last-ditch attempt to block his extradition.

Recognizing the First Amendment implications, the Obama administration declined to prosecute Assange for obtaining and disclosing confidential State Department cables and military files leaked by former Army intelligence analyst Chelsea Manning in 2010. After all, leading news organizations in the United States and around the world had published stories based on the same documents, and those acts of journalism likewise could be construed as felonies once this precedent was established. So could the routine practices of reporters who cover national security, which commonly involves divulging information that the government prefers to keep secret.

Despite those concerns, the Trump administration decided that Assange should be locked up for doing things that The New York Times et al. do on a regular basis. All but one of the 17 counts in Assange's latest federal indictment relate to obtaining or disclosing "national defense information," which is punishable by up to 10 years in prison. Theoretically, Assange could face 160 years in prison for those counts alone, although the government's lawyers say it probably would be more like the amount of time he already has served in the United Kingdom. Manning herself—who, unlike Assange, violated the terms of her government employment—received a 35-year sentence but was released after seven years thanks to Barack Obama's commutation.

"Some say that Assange is a journalist and that he should be immune from prosecution for these actions," John Demers, then the head of the Justice Department's National Security Division, told reporters after the Assange indictment was announced in May 2019. "The department takes seriously the role of journalists in our democracy and we thank you for it. It is not and has never been the department's policy to target them for reporting." There is no need to worry, Demers suggested, because Assange is "no journalist."

This line of argument misconstrues the "freedom…of the press" guaranteed by the First Amendment, which applies to mass communication generally, not just the speech of people whom the government deigns to recognize as journalists. Demers' assurance is similar to the reasoning that the U.S. Court of Appeals for the 5th Circuit recently applied in counterintuitively concluding that treating journalism as a crime is not "obviously unconstitutional."

That case involved Priscilla Villarreal, a Laredo, Texas, gadfly and citizen journalist who was arrested in 2017 for violating Section 39.06(c) of the Texas Penal Code. Under that previously obscure law, a person who "solicits or receives" information that "has not been made public" from a government official "with intent to obtain a benefit" commits a third-degree felony, punishable by two to 10 years in prison.

Texas defines "benefit" as "anything reasonably regarded as economic gain or advantage." According to the arrest affidavits, the "benefit" that Villarreal sought was a boost in Facebook traffic. Section 39.06(c) defines "information that has not been made public" as "any information to which the public does not generally have access" that is also "prohibited from disclosure" under the Texas Public Information Act. The arrest affidavits did not address the latter requirement at all.

Like the Espionage Act, Section 39.06(c) purportedly criminalizes common reporting practices—in this case, obtaining information about a public suicide and a fatal car accident from a "backchannel source" at the local police department. Writing for the 5th Circuit majority in Villarreal v. Laredo, Judge Edith Jones did not try to hide her disdain for Villarreal, an independent, uncredentialed journalist who files her unfiltered reports on Facebook instead of publishing vetted and edited stories in a "mainstream, legitimate" news outlet.

"Villarreal and others portray her as a martyr for the sake of journalism," Jones wrote. "That is inappropriate. She could have followed Texas law, or challenged that law in court, before reporting nonpublic information from the backchannel source. By skirting Texas law, Villarreal revealed information that could have severely emotionally harmed the families of decedents and interfered with ongoing investigations. Mainstream, legitimate media outlets routinely withhold the identity of accident victims or those who committed suicide until public officials or family members release that information publicly. Villarreal sought to capitalize on others' tragedies to propel her reputation and career."

Although Jones implies that Villarreal's arrest was prompted by concern for "the families of decedents," Villarreal plausibly argued that it was actually punishment for her outspoken criticism of local law enforcement agencies. In any case, there is no First Amendment exception for reporting that might offend or disturb people. And Jones' characterization of Villarreal's work as "capitaliz[ing] on others' tragedies to propel her reputation and career" is an apt, if cynical, description of what many journalists do, even when they work for "mainstream, legitimate media outlets." Jones apparently is unfamiliar with the bread and butter of local news organizations and has never heard the expression, "If it bleeds, it leads."

The seven dissenting judges saw the situation differently. "If the First Amendment means anything," Judge James C. Ho wrote in a dissent joined by five of his colleagues, "surely it means that citizens have the right to question or criticize public officials without fear of imprisonment." Judge James E. Graves Jr. likewise complained that "the majority opinion will permit government officials to retaliate against speech while hiding behind cherry-picked state statutes."

Judge Stephen A. Higginson noted that Thomas Paine, who wrote "the pro-independence pamphlet that historian Gordon Wood describes as 'the most incendiary and popular pamphlet of the entire revolutionary era,'" was, like Villarreal, a "citizen-journalist." Upholding "the text of the Constitution, as well as the values and history that it reflects," he said, "the Supreme Court guarantees the First Amendment right of engaged citizen-journalists, like Paine, to interrogate the government." Jones, by contrast, presumably would view Paine as disreputable, since he did not work for a "mainstream, legitimate media outlet."

Assange's critics, including some professional journalists, have proposed a similar distinction, arguing that he does not deserve the First Amendment's protection because he is not a "real" journalist. But whatever you might think of Assange's opinions, his tactics, or the care he exercised in publishing classified material, that distinction is not grounded in the Constitution and will not hold in practice.

The editors and publishers of The New York Times, The Guardian, Le Monde, Der Spiegel, and El País recognized as much in 2022, when they urged the Justice Department to drop the case against Assange. In ignoring that advice, the Biden administration seems bent on establishing a dangerous precedent that replaces the First Amendment's guarantee with the whims of prosecutors.

The post The Biden Administration Is Bent on Setting an Alarming Precedent by Prosecuting Julian Assange appeared first on Reason.com.

On Friday, New York County Supreme Court Justice Arthur Engoron ordered Donald Trump to pay a staggering $355 million for repeatedly inflating asset values in statements of financial condition submitted to lenders and insurers. When the interest that Engoron also approved is considered, the total penalty rises to $450 million. All told, Trump and his co-defendants, including three of his children and former Trump Organization CFO Allen Weisselberg, are on the hook for $364 million, or about $464 million with interest.

On its face, a penalty of nearly half a billion dollars is hard to fathom given that no lender or insurer claimed it suffered a financial loss as a result of the transactions at the center of the case, which was brought by New York Attorney General Letitia James. But the law under which James sued Trump and his co-defendants does not require any such loss. The money demanded by Engoron's 92-page decision, which goes to the state rather than individual claimants, is styled not as damages but as "disgorgement" of "ill-gotten gains." It is aimed not at compensating people who were allegedly harmed by Trump's misrepresentations but at deterring dishonesty that threatens "the financial marketplace."

Proving "common law fraud," Engoron notes, requires establishing that the defendant made a "material" statement he knew to be false, that the plaintiff justifiably relied on that statement, and that he suffered damages as a result. Section 63(12) of New York's Executive Law, by contrast, authorizes the attorney general to sue "any person" who "engage[s] in repeated fraudulent or illegal acts or otherwise demonstrate persistent fraud or illegality in the carrying on, conducting or transaction of business." The attorney general can seek "an order enjoining the continuance of such business activity or of any fraudulent or illegal acts, directing restitution and damages and, in an appropriate case, cancelling" the defendant's business certificate.

"The statute casts a wide net," Engoron observes. It defines "fraud" to include "any device, scheme or artifice to defraud and any deception, misrepresentation, concealment, suppression, false pretense, false promise or unconscionable contractual provisions." Although Engoron found substantial evidence that lenders and insurers relied on the Trump Organization's misrepresentations, the state did not have to prove that they did or that they suffered damages as a result.

"Timely and total repayment of loans does not extinguish the harm that false statements inflict on the marketplace," Engoron writes. "Indeed, the common excuse that 'everybody does it' is all the more reason to strive for honesty and transparency and to be vigilant in enforcing the rules. Here, despite the false financial statements, it is undisputed that defendants have made all required payments on time; the next group of lenders to receive bogus statements might not be so lucky. New York means business in combating business fraud."

Engoron ruled that the appropriate standard of proof was a preponderance of the evidence, which typically applies in civil cases and requires showing that an allegation is more likely than not to be true. "Defendants have provided no legal authority for their contention that the higher 'clear and convincing' standard does, or should, apply," he writes. "A clear and convincing standard applies only when a case involves the denial of, addresses, or adjudicates fundamental 'personal or liberty rights' not at issue in this action."

Engoron had previously ruled that disgorgement of profits is one of the remedies allowed by Section 63(12) in this case. "In flagrant disregard of prior orders of this Court and the First Department [court of appeals], defendants repeat the untenable notion that 'disgorgement is unavailable as a matter of law' in Executive Law §63(12) actions," he wrote in that September 2023 decision, which held that Trump had committed fraud within the meaning of the statute. "This is patently false, as defendants are, or certainly should be, aware that the Appellate Division, First Department made it clear in this very case that '[w]e have already held that the failure to allege losses does not require dismissal of a claim for disgorgement under Executive Law § 63(12).'"

In Friday's decision, Engoron reviews the examples of fraud that he described in the earlier ruling. Most notoriously, they include the claim that Trump's triplex apartment in Manhattan's Trump Tower was 30,000 square feet, nearly three times its actual size. That misrepresentation was included in Trump's statements of financial condition (SFCs) from 2012 through 2016 and was not corrected until after Forbes made the glaring discrepancy public in 2017.

In 2012, former Trump International Realty employee Kevin Sneddon testified, Weisselberg asked him to assess the apartment's value. "In response to the request," Engoron writes, "Sneddon asked Weisselberg if he could see the Triplex, to which Weisselberg responded that that was 'not possible.' Sneddon then asked if Weisselberg could send him a floorplan or specs of the Triplex to evaluate, to which Weisselberg also said 'no.' Sneddon then asked Weisselberg what size the Triplex was, to which Weisselberg responded 'around 30,000 square feet.' Sneddon then used the 30,000 square foot number in ascertaining a value for the Triplex."

The value of Mar-a-Lago, Trump's golf resort in Palm Beach, also figured prominently in the case. The deed to Mar-a-Lago precluded it from ever being used as private residential property, a clause that made it eligible for a lower tax rate. Yet SFCs repeatedly valued Mar-a-Lago as if it could be sold for residential purposes. Engoron notes that Trump "insisted that he believed Mar-a-Lago is worth 'between a billion and a billion five' today, which would require not only valuing it as a private residence, which the deed prohibits, but as more than the most expensive private residence listed in the country by approximately 400%"

Other examples of misrepresentations included treating rent-stabilized apartments as if they were not subject to that restriction, assuming regulatory permission for construction that had not in fact been approved, failing to discount expected streams of revenue, dramatically departing from estimates by professional appraisers, and counting Trump's limited partnership interest in a real estate company as cash even though he could not access the money without the company's consent. More generally, expert testimony indicated, Trump tended to value properties based on rosy "as if" assumptions rather than the "as is" valuations preferred by lenders.

The defendants argued that the accountants charged with compiling the SFCs were responsibile for verifying their accuracy. But as Engoron notes, the accounting firms' role was limited to assembling information provided by the Trump Organization, which they assumed to be accurate. "There is overwhelming evidence from both interested and non-interested witnesses, corroborated by documentary evidence, that the buck for being truthful in the supporting data valuations stopped with the Trump Organization, not the accountants," he says. "Moreover, the Trump Organization intentionally engaged their accountants to perform compilations, as opposed to reviews or audits, which provided the lowest level of scrutiny and rely on the representations and information provided by the client; compilation engagements make clear that the accountants will not inquire, assess fraud risk, or test the accounting records."

Trump also argued that the SFCs were unimportant because lenders and insurers would perform their own due diligence. Engoron was unimpressed by that defense, especially with regard to the insurers. "Because the Trump Organization is a private company, not a publicly traded company," he says, "there is very little that underwriters can do to learn about the financial condition of the company other than to rely on the financial statements that the client provides to them."

Were the Trump Organizations overvaluations "material"? Engoron had already concluded that "the SFCs from 2014-2021 were false by material amounts as a matter of law." Under Section 63(12), he says, materiality "is judged not by reference to reliance by or materiality to a particular victim, but rather on whether the financial statement 'properly reflected the financial condition' of the person to which the statement pertains."

If fraud "is insignificant," Engorion concedes, "then, like most things in life, it just does not matter." But that "is not what we have here," he adds. "Whether viewed in relative (percentage) or absolute (numerical) terms, objectively (the governing standard) or subjectively (how the lenders viewed them), defendants' misstatements were material….The frauds found here leap off the page and shock the conscience."

While there is no precise numerical standard for materiality, Engoron says, "this Court confidently declares that any number that is at least 10% off could be deemed material, and any number that is at least 50% off would likely be deemed material. These numbers are probably conservative given that here, such deviations from truth represent hundreds of millions of dollars, and in the case of Mar-a-Lago, possibly a billion dollars or more."

Did those deviations ultimately matter in the decisions that lenders and insurers made? Engoron's summary provides reason to doubt that they did. Deutsche Bank, he notes, routinely "applied a 50% 'haircut' to the valuations presented by" clients, which a witness "affirmed was the standardized number for commercial real assets." A defense witness opined that lenders generally just want to see "the engagement of a warm body of a billionaire to stand behind the loan in his equity infusion and capital."

James nevertheless argued that Trump, by systematically exaggerating his wealth and the amount of cash he could access, misled lenders about what would happen in the event that the Trump Organization could not meet its obligations. And those misrepresentations, she said, allowed the business to borrow more money on terms more favorable than it otherwise could have obtained.

The difference between the interest rates that lenders charged based on Trump's personal financial guarantee and the rates they would have charged without it was crucial to Engoron's calculation of how much the defendants should disgorge. Over their vigorous objections, he accepted the numbers offered by a state witness, investment bank CEO Michiel McCarty, who compared the rate that Deutsche Bank charged the Trump Organization based on Trump's personal guarantee with the rate it proposed for a loan without that guarantee. By McCarty's calculation, the Trump Organization saved a total of about $168 million in interest on loans for four projects.

By itself, that estimate accounts for nearly half of the disgorgement that Engoron ordered. He also included nearly $127 million in "net profits" from the 2022 sale of the Old Post Office in Washington, D.C., which Trump had converted into a hotel. That deal, James argued, was facilitated "through the use of false SFCs," without which it would not have happened. She also argued that "without the ill-gotten savings on interest rates, defendants would not even have been able to invest in the Old Post Office and/or other projects."

Taking into account the partnership interest "fraudulently labeled as cash," James said, "Trump would have been in a negative cash situation" by 2017 but for the $74 million or so "saved through reduced interest payments." She noted that "the Old Post office loan itself was a construction loan, and its proceeds were necessary to the construction and renovation of the hotel, which enabled the 2022 sale and resulting profits."

Engoron found these arguments, especially the first, persuasive. The profits from the sale of the Old Post Office, he concludes, "were ill gotten gains, subject to disgorgement, which is meant to deny defendants 'the ability to profit from ill-gotten gain.'"

Engoron also counted $60 million in profits from the 2023 sale of a license to operate a golf course at Ferry Point Park in the Bronx, which Trump had obtained from the New York City Department of Parks & Recreation in 2012. "By maintaining the license agreement for Ferry Point, based on fraudulent financials," Engoron says, "Donald Trump was able to secure a windfall profit by selling the license to Bally's Corporation."

Although reliance is not required to prove fraud under Section 63(12), it does implicitly figure in these disgorgement calculations. But for the "fraudulent financials," Engoron assumes, Trump would have had to pay higher interest rates on the four loans, and neither the Ferry Point deal nor the Old Post Office renovation and sale would have happened. The defendants, of course, dispute those counterfactuals.

Explaining the need for continued independent supervision of the Trump Organization, Engoron emphasizes Trump et al.'s "refusal to admit error." After "some four years of investigation and litigation," he says, "the only error (inadvertent, of course) that they acknowledge is the tripling of the size of the Trump Tower Penthouse, which cannot be gainsaid. Their complete lack of contrition and remorse borders on pathological. They are accused only of inflating asset values to make more money. The documents prove this over and over again. This is a venial sin, not a mortal sin. Defendants did not commit murder or arson. They did not rob a bank at gunpoint. Donald Trump is not Bernard Madoff. Yet, defendants are incapable of admitting the error of their ways. Instead, they adopt a 'See no evil, hear no evil, speak no evil' posture that the evidence belies."

Engoron "intends to protect the integrity of the financial marketplace and, thus, the public as a whole," he writes. "Defendants' refusal to admit error—indeed, to continue it, according to the Independent Monitor—constrains this Court to conclude that they will engage in it going forward unless judicially restrained. Indeed, Donald Trump testified that, even today, he does not believe the Trump Organization needed to make any changes based on the facts that came out during this trial."

Although Engoron says his court "is not constituted to judge morality," his outrage at Trump's financial dishonesty is palpable. That dishonesty, which is consistent with the ego-boosting lies that Trump routinely tells about matters small (e.g., the size of the crowd at his inauguration) and large (e.g., a presidential election he still insists was "rigged" by systematic fraud), is indeed striking. In this case, however, it did not result in any injuries that Trump's lenders or insurers could identify. Under New York law, Engoron says, that does not matter. But maybe it should.

The post How a New York Judge Arrived at a Staggering 'Disgorgement' Order Against Trump appeared first on Reason.com.