Archive for the 'Criminal Law' Category

Alford Plea: How a 19 Year-Old Teen Gets Community Service for Sexual Assault

A 19-year old Idaho teen that was accused of kicking a coat hanger up the rectum of a mentally disabled teammate plead guilty and received a mere sentence of 300 hours of community service.  Former high school football player, John R.K. Howard, was originally charged with forcible penetration by use of a foreign object, but the case was later found not to be about sexual assault and the teen was ultimately sentenced on a felony injury to a child charge.

According to the victim’s account of what happened, one of his friends motioned him over for a hug whereupon another teammate shoved a coat hanger into his body, after which Howard kicked the hanger pushing it further into his body.  Howard admitted he kicked the victim, but denied that he intentionally kicked the hanger itself; in fact, his attorney argued Howard may not have even known about the hanger.

The case caused quite an uproar in the small town of Dietrich, Idaho.  The victim’s family argued the victim had been continually bullied, while those in support of Howard and the other students charged urged the victim had fabricated the whole incident at the request of his parents for the sake of the financial gain that would come out of a lawsuit.  Despite the murky facts the case presents, Howard chose to plead guilty under an Alford Plea.

alford plea“I’m Guilty, But Not Really”

When a defendant enters a guilty plea, they’re admitting their guilt to the crime, usually as a trade-off for a reduced charge and a lesser sentence.  An Alford Plea gives the defendant the benefit of the lesser sentence without admitting guilt—the defendant gets to maintain his or her innocence for the crime.

Judges do have discretion to either accept or reject a plea, so maintaining innocence isn’t normally something that you would see when entering a guilty plea.  The Alford plea originated from a U.S. Supreme Court decision that held a judge can accept a guilty plea from a defendant that doesn’t really want to admit guilt; this allows the defendant to get the benefit of the bargained-for sentence even though they’re wavering on actual guilt.  When entering this kind of plea, Judges will ensure:

  • Whether the defendant is making a smart decision. Does the defendant understand what the plea means?  Does the defendant understand the rights they’re giving up?  Does the defendant understand that, even though they’re maintaining their innocence, they’ll still be considered (and treated as) guilty?  It will still be a criminal record just the same.
  • Is there enough evidence against the defendant for a guilty verdict at trial? You can’t plead guilty under an Alford Plea if there isn’t enough proof you’ve committed the crime.

Alford Plea Benefits Both Sides

Under an Alford Plea, a defendant admits that the evidence against them would likely persuade a judge or jury to find a verdict of guilty beyond a reasonable doubt, but maintains his or her innocence.  That doesn’t exactly sound like a real guilty plea then, so why are they even allowed?

In the case that went to the U.S. Supreme Court that led to the development of the Alford Plea, at the defendant’s guilty plea hearing he testified that he didn’t commit the crime he was charged with, but was pleading guilty to avoid getting a death penalty sentence.  That’s the plus side to any guilty plea—pleading guilty to a lesser crime to avoid a heavier sentence.  For the state, it’s about judicial efficiency, but for a defendant it’s about not gambling the odds.

Not every state allows Alford Pleas and in those states a defendant would have to plead “not guilty” to maintain their innocence.  For all intents and purposes, this costs time and money because it leads to a lengthy trial.  Plea deals keep cases off the docket, ensure time served, and give defendants the benefit of a lesser sentence.

Teen Could Get Conviction Dismissed

The evidence against Howard must have been damning for him to take the plea, but it paid off for him because he won’t have to serve any jail time.  The sentenced Howard to 300 hours of community service, but granted a withheld judgment.  Under Idaho law, judgments can be withheld to get them off the docket.  The benefit of this kind of judgment is that it gives the defendant a chance to have his record cleared later.

Here’s how it typically works—a defendant pleads guilty, is granted a withheld judgment, the case is closed, and, if the defendant abides by the term of their guilty plea, the conviction gets dismissed.  Think of it like putting your case on hold—a probationary period if you will.  If you behave, don’t get in any more trouble, and follow the terms of your guilty plea agreement with the state, then your case gets dismissed at the end of the probationary period.

Immigration: Why Did Border Patrol Ask for ID on a Domestic Flight?

A recent domestic flight was boarded by immigration officers who asked to see passengers’ identification. The flight from San Francisco to New York was met by two U.S. Customs and Border Protection (“CBP”) agents who were conducting a search at the request of Immigration and Customs Enforcement. According to CBP, an immigrant who had legal immigration documents received a deportation order after multiple criminal convictions for domestic assault, driving while impaired, and violating a protective order. The agents were in search of this unidentified immigrant, but did not find the person on the flight.

Was this Action Typical?

According to the New York Civil Liberties Union, law enforcement officials sometimes board airplanes to apprehend a suspect or fugitive. They occasionally may pull someone off a flight or officers will enter a plane to make an arrest. However, it is highly unusual for officials to do what they did here – wait outside an arriving plane to ask for identification from each passenger.

ImmigrationWhy Did CBP Ask Passengers for ID?

During campaign season, President Trump promised his supporters he would deport “bad dudes” or “bad hombres”, a term he coined for immigrants convicted of crimes. It appears he’s trying to make good on his promise.

Asking for identification from each passenger was without a doubt atypical for CBP and certainly not protocol. Due to this unusual action by CBP, people are starting to question whether it was connected to President Trump’s new immigration guidelines. Under the Obama administration, U.S. Immigration and Customs Enforcement (“ICE”) prioritized finding and deporting undocumented immigrants with prior criminal convictions. The Trump administration has taken this one step further. Under the Trump administration, the Department of Homeland Security issued guidelines to ICE and CBP empowering federal agents to detain, target and deport any immigrant currently in the United States without documentation. This includes immigrants who have no past criminal convictions.

What are the Immigration Laws in the U.S.?

The Immigration and Naturalization Act (“INA”) is the body of law that governs current immigration policy.

There are essentially three ways to legally immigrate to the United States. First, an immediate family relative can sponsor anyone seeking immigration visas so long as the immigrant is at least 21 years old and can demonstrate either the sponsor or the immigrant has the financial means to support him or herself in the United States. Second, individuals who leave their home country to avoid persecution can obtain refugee status through the U.S. Embassy, thereby obtaining refugee and asylum status. Third, lawful permanent residency allows for a foreign national to work and live lawfully in the U.S. This is known as obtaining an employment or work visa.

Are Immigrants a Problem in the U.S.?

Recent statistics show that there are a record 61 million immigrants and their American-born children who live in the United States. Given the limited ability for most immigrants to immigrate to America legally, there are an estimated 15.7 million who live here illegally. These people are known as undocumented (or illegal) immigrants, and they are foreign people who have no legal right to remain in the U.S.

As with any group of people, some immigrants are criminals, but it is dangerous to assume all immigrants are “bad dudes.” Not only is it an unsubstantiated stereotype, it also unfairly categorizes an entire group of people based purely on their immigration status. The fact that this stereotype is perpetuated by the President of the United States, the most powerful position in the world, encourages narrow-minded thinking.

President Trump’s new stricter guidelines that encourage targeting, detaining and deporting immigrants are consistent with his campaign and presidency which seem to focus on dividing our nation instead of uniting it.

Hate Crime: The Feds Address Kansas Shooting

The nation has seen racial tensions, while far from new, enter the public consciousness in a way that has likely not been seen in decades.  From the recent travel ban, to the many reported shootings of minorities by police, to high profile trials with a focus on race such as the case of Trayvon Martin or Eric Garner.  Many would argue that the election of last year was characterized to a large degree by these racial tensions; because of this environment the scrutiny on the response to the sort of tragedies that stem from such tensions is properly higher than ever.  Just last week, one such tragedy struck hard in Kansas after a man shot two Indian-American citizens after heaping racially tinged verbal abuse upon them–killing one of the men.

On Thursday, February 23rd, there was a University of Kansas vs TCU basketball game on the television at the Austin’s Bar and Grill.  However, while Srinivas Kuchibhotla and Alok Madasani enjoyed the game at the bar as they often did after finishing their work day as engineers for the GPS company Garmin, one Adam Purinton reportedly shouted vitriol at them including ethnic slurs and suggestions that they did not belong in this country.  Adam Purninton was eventually asked to leave due to the scene he was causing.  He left, but later came back bearing a gun.  Witnesses reported him shouting racial slurs and telling the two engineers to “get out of my country” before opening fire.  Mr. Purinton shot both men, killing Mr. Kuchibhotla.  He shot another patron of the bar, Ian Grillot, as the man pursued him as he fled the scene.  Mr. Purinton was later arrested after telling an Applebee’s employee that he needed to lay low because he had just killed two Middle Eastern men.  He has since been charged in Kansas with one count of premeditated first-degree murder and two counts of attempted first degree murder.

What is conspicuously absent from this list of charges is an allegation that Mr. Purinton’s actions were a hate crime.  The silence on this issue in the days immediately following have been the cause of great consternation, especially considering the substantial evidence of a racial motivation behind Mr. Purinton’s acts.  To better understand this outrage, it is important to understand exactly how hate crime laws work and the response that has come out of the federal government.

Hate CrimeWhat is a hate crime?

The question is one that I’m certain most feel they could answer intuitively–a crime motivated by hate.  This is fairly accurate when speaking about hate crimes more generally.  However, as with most things in law, the exact reality is a bit more complex.

We’ve discussed exactly how hate crimes work a bit in the aftermath of the mass shooting at Pulse Nightclub in Orlando.  However, it’s good to review the details a little bit because this case has some unique issues with it.  As mentioned above, the basics of a hate crime law are relatively intuitive, although the requirements to prove a hate crime can be a bit more complicated to establish.  Hate crimes can generally be discussed as crimes motivated by bias or prejudice against a protected group.  When a crime is considered a hate crime, an enhanced penalty is applied to the perpetrator.  A few examples of crimes that can be enhanced when motivated by prejudice against the victim include: assault, murder, rape, sexual assault, vandalism, defamation, denial of certain rights, and others.

So, looking at the definition of a hate crime, what would need to be proven to show Mr. Purinton committed a hate crime would be his mental state going in–that the motivation behind the shooting was bias or prejudice against a certain race.  The fact that he was completely incorrect in his assumption of the race of the men he shot would not generally be relevant to such a determination.  If the witnesses to the shooting, and the Applebee’s employee Mr. Purinton later confessed his crime to, have accurately related what happened then what happened was almost certainly a hate crime.  Shouting racial epithets and telling Mr. Kuchibhotlamand Mr. Madasani to “get out of my country” immediately before opening fire is pretty dang strong evidence that Mr. Purinton’s actions were motivated by racial hatred; not to mention the slurs he reportedly threw before being asked to leave the bar.

You may be asking, if the evidence is so strong then why didn’t Kansas bring hate crime charges?  The answer is that hate crime laws are different state to state and under federal law.  While 45 of the 50 states have hate crime laws, exactly what constitutes a protected group varies from state to state.  Some of the most common protected groups include race, age, sex, gender, disability, gender identity, and sexual preference or orientation.  In 31 states, a hate crime also gives rise to a civil cause of action above and beyond the enhanced criminal charges brought against the perpetrator.  This civil lawsuit is brought by the victim of the hate crime or their surviving family.  What’s more, while most states have hate crime laws, not every state has a hate crime statute.  The distinction here is that a statute creates an independent charge of a hate crime, many states instead opt for laws allowing enhanced penalties if it is found a person was motivated by hate after they are found guilty of a base crime.  Kansas, while it has allowed for enhanced sentencing based on where a crime is motivated bias or prejudice since 2009, has no independent hate crime charge.

While Mr. Purinton could face 50 years in prison should he be found guilty of the charges already brought, there is no law in Kansas under which a hate crime charge or enhancement could be brought to bear against him.  This means that any hate crime charges brought against Mr. Purinton would have to be brought at the federal level.  This has been a large part of why there has been such intense scrutiny on the federal government’s response to the horrendous crime.

Slow Response from the White House and the Federal Government

In the wake of the shooting, public outcry for the White House to respond to the shooting and declare the act a hate crime was near instantaneous.  However, days rolled on with no comment whatsoever from President Trump on the shooting and no word on whether the federal government had any plans whatsoever to investigate.  The only comment out of the White House press secretary Sean Spicer saying “any loss of life is tragic..but I’m not going to get into.”  Mr. Spicer then spent the remainder of his short commentary on the shooting saying that he wanted to make sure everybody understood that there was no correlation between the shooting and Trump’s comments and stances on immigration–specifically when it comes to Muslims and the Middle-East.

Many questioned the choice of President Trump to stay silent on the issue and, despite Sean Spicer’s protestations, much of the criticism stemmed from Trump’s own history when it comes to immigrants and Muslims.  Pakistani-American comedian Kumail Nanjani commented “”The President could say “Don’t shoot innocent brown people. It’s wrong.” And he would save lives. But he won’t. & that doesn’t surprise us.”  In India, there was immense media coverage questioning why President Trump didn’t immediately condemn the attack.

President Trump has espoused a fair bit of rhetoric damning immigrants, refugees, and Muslims in particular.  Calling immigrants from Mexico rapists, proposing a law requiring all Muslims to register with the government, introducing travel bans specifically targeting Muslim-majority countries.  He made a point of inviting three people with relatives killed by illegal immigrants to the same speech where he mentioned the Kansas shootings.  It’s easy to see how one might worry that these statements might embolden those who might commit crimes based on hatred, why it was so important that President Trump immediately condemn the crime, and why Mr. Spicer felt such a need to distance the President’s stances and statements from this shooting.

The President’s long silence on the shooting was especially troubling considering how quick President Trump has been to comment on violent incidents abroad, often to the point of misattributing the violence to an entirely different group of perpetrators (namely Muslims and refugees) or simply citing incidents that did not occur at all.

There is No Room for Bigotry and Hate

However, thankfully, the White House’s silence on the matter was not a permanent one.  Nearly a week after the shooting occurred, President Trump briefly mentioned the shooting in an address to Congress.  In an official statement, the White House condemned the shooting as an “act of racially motivated hatred.”  The FBI has also officially begun an investigation, working alongside local police, into the shooting as a hate crime.

We should never hesitate to condemn acts of bigotry and hate within our community; neither should out leaders.  While the federal government has eventually responded, it’s halfhearted approach will do nothing to deter acts of hatred.  On March 4th, a Sikh man was shot in his own driveway in Washington while working on his car.  A man with a mask over the bottom of his face approached him, told him “go back to your own country,” and shot him to death.  The White House has had no comment.

No Charges for Off-Duty Police Officer Who Fired Sidearm in Dispute with Teenager

An off-duty Los Angeles police officer fired his gun at the ground during an altercation with teenagers.

Off-Duty Police OfficerThe initial confrontation was part of an ongoing dispute with several juveniles who walked across the officer’s lawn. The dispute escalated one afternoon into a full blown confrontation between one teen in particular and the off-duty police officer.

According to the officer’s account of what happened, the teen said he would shoot the officer. While the juvenile tried to walk away, the officer physically detained the boy while the officer waited for police. At this point, several other teenagers joined in. Two juveniles knocked the officer to the ground, and when a group began surrounding the officer, he withdrew his gun and fired a shot at the ground. No one was injured but the altercation was caught on cell phone footage.

Criminal Charges against the Juveniles

The 13-year-old boy who had the initial confrontation with the off-duty police officer was arrested but released after being booked. He was charged with criminal threats and battery. His 15-year-old friend who engaged in the altercation was also arrested on suspicion of assault and battery but was released to his parents.

Criminal Charges Defined

In California, the crime of criminal threats is defined as putting someone in fear. In this case, the 13-year-old was charged for criminal threats because the officer and several eyewitnesses, many of whom were teenagers themselves, corroborated the officer’s story that the teen threatened to shoot the officer.

Assault is found when a person threatens bodily harm and creates a fear of harm in another person. It’s a common misconception that it must also be accompanied by some sort of touching. It does not, so words alone can constitute assault if it could reasonably create a fear of harm. However, in criminal law, it’s often coupled with battery.

Battery is offensive physical contact with another person, either with or without consent. You will notice that while battery has a touching element, assault does not.

Possible Charges against the Officer

A lot depends on what the officer said and did. From the camera footage and by his own account, we see that he was grabbing the 13-year-old teen. Based on the touching alone, he could have been charged with battery. If he also accompanied his touching with threats against the teen, he could have also been charged with assault.

False imprisonment occurs when a person is restricted in his or her movement without legal authority or justification. Here, the officer held the teenager down, but it appears he had valid justification – he was containing the boy until police arrived. He wouldn’t have been charged with false imprisonment.

Nor would he have been charged with excessive force by a police officer. An officer’s force is “excessive” if it results in serious injury or even death while arresting a suspect. Excessive force is only found when an officer is acting in his or her capacity as a law enforcer. The officer in this case was acting as an off-duty private citizen.

Why Wasn’t the Officer Charged?

To put it simply, there wasn’t enough evidence to charge him with a crime. After the fact, it is easy to say that he shouldn’t have drawn his gun, especially when he’s a grown man involved in a confrontation with a 13-year-old boy over something as inconsequential as crossing his lawn. The officer is bigger, stronger, and older. The juvenile did not appear to be armed. Nevertheless, eyewitness reports demonstrate the teenager said repeatedly he was going to shoot the officer. Camera footage also shows the officer being tackled by two teenage boys. The threats of violence coupled with being tackled to the ground reasonably made the officer feel threatened.

A person has a right to defend him or her self – known as self-defense – meaning they can use reasonable force to protect oneself. Not everyone carries a gun, and certainly it wouldn’t be the first mode of defense for most people, but the officer didn’t shoot at anyone and thankfully no one was hurt. Whether the force he used to protect himself was reasonable is really subjective.

Right or wrong, the officer wasn’t charged, but the potential reprimand from his job and fallout in his community may just be punishment enough.

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Can Marijuana Businesses Survive the Trump Administration?

One of the most notable trends of the most recent election was the explosion of laws legalizing recreational and medical marijuana across the nation. In fact, while only 8 states currently allow recreational use, the majority of states have legalized the use of marijuana in one form or another. This explosion has caused a chain reaction, a matching eruption of businesses prepared to sell marijuana products wherever it is legal.

One of the largest of these companies is Dixie Brands, an enormous Colorado-based business. Dixie Brands, founded in 2010, currently has branches operating in Arizona, Colorado, California in Nevada. They have in the news recently for their desire to spread nationwide with planned expansions to Maryland, Oregon, and Washington.

Marijuana Business

However, operating and expanding as an operation in the business of selling a product that is federally illegal is understandably extremely complicated. Not only does each state have its own notably different set of laws on how a business must operate but federal law bars marijuana companies from a number of things most businesses would consider necessary to operate. In fact, the majority of the growth of the industry is predicated off the hands off approach of the federal government under the Obama administration.

Marijuana Businesses Under President Obama

In August of 2013, the Obama administration issued a memo stating that it would not interfere with legal cannabis business so long as they operated in states with fully fleshed out regulatory regimes for such businesses such as Colorado. In December 2014, President Obama signed a bill into effect which limited how the Justice Department could stop states from putting their own rules into effect when it comes to marijuana.  In a recent interview, President Obama went so far as to say that he believes that marijuana should be treated as a health issue in same vein as cigarettes and alcohol. He went out of his way in the same interview to note that polls show that the majority of people who voted for President-elect Trump feel the same way.

What They Might Face Under President Trump

These comments come after Trump has picked Sen. Jeff Sessions as his top choice for U.S. Attorney General–a particularly controversial pick.  Senator Sessions was nominated for a position as a federal judge by President Reagan in 1986. However, a Republican led Senate Judiciary Committee refused to appoint him after a number of racist comments and opinions came to light. Senator Sessions referred to the NAACP as “un-American,” repeatedly called the African-American Assistant United States Attorney Thomas Figures “boy,” and–perhaps most relevant for the state of marijuana law across the country–said that he thought the KKK were good people “until I learned they smoked pot.” While President-elect Trump has previously supported a hands-off approach to marijuana, his pick of Senator Sessions for U.S. Attorney General certainly points in a different direction–much to the chagrin of companies like Dixie Brands.  Senator Sessions is, as you can probably tell from his statements about the KKK, extremely outspoken in his opposition towards marijuana as a whole. Senator Sessions has stated that “one of [President Obama’s] great failures …is his lax treatment and comments around marijuana.”  He has been quoted as saying “We need grownups in Washington to say, ‘Marijuana is not the kind of thing to be legalized, it ought not to be minimized, and that it’s a real danger.'” He has even gone so far as to say “good people don’t smoke marijuana.”

All of this points to a potential change in stance from the incoming administration; the kind of change in stance that could be catastrophic for a business like Dixie Brands and the entire industry they belong to. So what exactly are the legal obstacles currently facing businesses based around marijuana products and how can a firmer line on marijuana make things even worse for these businesses?

The Legal Roadblocks of Selling Legalized Marijuana

First and foremost, the obvious elephant in the room.  Marijuana is federally illegal. Federal law supersedes state law when the two conflict. Thus, so long as marijuana remains criminal at the federal level the entire business could come crashing down in a matter of months or weeks with just a few changes to enforcement and federal laws. Supreme Court cases have shown that even personal use or cultivation of marijuana within a single state has sufficient impact on the nation as a whole to allow for enforcement of federal laws despite contrary state law. The bill signed by President Obama protecting such state laws from interference could be easily overturned by a conservative Congress with the mind to do it. If the choice of Senator Sessions as U.S. Attorney General signals an administration in line with his way of thinking, action such as this may well be in our future.

So, to say that the marijuana business is on shaky ground is a bit of an understatement. However, businesses such as Dixie Brands are used to operating on shaky grounds. The nature of their business has always involved some level of legal headaches in areas such as intellectual property, forming binding contracts and advertising. However, there are some legal issues that are even more fundamentally problematic for companies selling marijuana products.

Legal Transportation of Marijuana

One of the biggest of these headaches is that federal law makes it illegal to transport marijuana across state lines–interstate commerce is generally the realm of the federal government and the federal government says marijuana is illegal. The federal government can even prosecute people transporting marijuana from one legal state to another. The penalties for a violation of these rules are hefty–up to five years in prison or fines of up to $250,000.

This is especially relevant now that the entire block of states along the west coast all have legalized marijuana. In a normal franchise, standardizing providers and shipping equivalent quality goods to all your branches is standard practice.  However, this is illegal for marijuana companies and requires these companies to find a different legal provider of marijuana in every state they operate in. While some states have made it clear that enforcing these laws at their borders is not high on their priority list for single persons, this doesn’t necessarily apply for a larger business shipping large quantities and doesn’t prevent federal operatives from intervening.

What About Banking for Marijuana Businesses?

Another common issue facing businesses selling marijuana products is banking.  The fact that marijuana is, once again, illegal at a federal level has made most banks very hesitant to accept any money from a marijuana-related business. The problem is that this money is essentially earned through committing a federal crime and banks are fearful they may lose their required FDIC and NCUA insurance as both of these are provided by the federal government. Even worse, by working with a business like Dixie Brands a bank could face a lawsuit brought by the federal government.

Back in February of 2014, a division of the U.S. Department of the Treasury known as the Financial Crimes Enforcement Network (FinCEN) has created guidelines under which a bank may safely work with a marijuana-related company. These rules made it so that banks could work with companies selling marijuana so long as they file frequent Suspicious Activity Reports proving that the people they work with aren’t committing fraud or laundering money. However, while the rules made it technically legal to work with a company marijuana products, they also make it so expensive and time consuming to do so that no bank actually chooses to take FinCEN up on the offer. What’s more, these guidelines are not actually binding law but merely recommendations. This means that a change in position from the federal government, such as the one that looks to be on the horizon, would leave any bank following the FinCEN guidelines hung out to dry in a potential legal crackdown.

This issue has led to two things.  First, the marijuana industry is primarily a cash industry with all the problems that brings with it.  The interstate nature of credit cards, electronic payments, electronic transfers, PayPal and similar services tender all these payment methods unavailable to marijuana-related businesses. There are stories of owners of marijuana-related businesses coming to pay their taxes with sacks and sacks of cash like a Scrooge McDuck cartoon.  Second,  states have been forced to try and design their own internal banking services to help regulate the businesses they seek to tax.  Some of these, such as the newest regulations out of California, will only be taking effect later this year.

Is This the End of Expanding Marijuana-Related Businesses?

There is, unquestionably, an enormous amount of tax revenue to be made and jobs that could be created through legalized and regulated marijuana in the U.S.  However, the stance of those the incoming administration has chosen to represent them is not a friendly one to legalization.  There are certainly arguments in favor of this side of the argument as well–difficulty of enforcement, difficulty in proving current intoxication, etc.  However, as it stands the public opinions of the incoming Trump administration are incongruent.  President-elect Trump himself has been publically supportive of the growing marijuana industry.  The man he has chosen to weigh in most influentially on the current laws of the federal government, however, has a diametrically opposed position.   The marijuana industry is, and has been, an incredibly profitable house of cards–we’ll have to wait and see if the Trump administration chooses to blow it over.