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Did Trump Commit Treason In His Statements About Russia?

Donald Trump has said a lot of things during and even before his presidential campaign that have been controversial. Legal professionals are claiming that his latest statements constitute treason.

Trump’s statements are hot on the heels of Hillary Clinton’s e-mail scandal. On July 5th, the Federal Bureau of Investigation (FBI) released a statement that they investigated whether Clinton shared emails containing classified information during her tenure as Secretary of State. Nevertheless, Attorney General Loretta Lynch announced that no charges would be filed against the former Secretary of State for carelessly sharing classified emails. Clinton is also accused of deleting 31,000 emails.

Never one to shy away from sharing his thoughts, Trump stated, “Russia, if you’re listening, I hope you’re able to find the 30,000 emails that are missing.” He went on to say, “I think you will probably be rewarded mightily by our press.” His statement urges a country that is often hostile to the United States, Russia, to break American law by hacking into Hillary Clinton’s private computer network.

While many are calling Trump’s statement treasonous, a felony in the United States, did he really commit treason?

What is Treason?

In the most basic sense, treason is the crime of betraying one’s country. Under Article III, Section 3 of the U.S. Constitution, any person who levies war against the United States or adheres to itsTrump enemies by giving them Aid and Comfort has committed treason within the meaning of the Constitution. “Aid and Comfort” means any act that is considered a betrayal of allegiance to the U.S. Some examples include furnishing enemies with arms, transportation, or classified information.

It’s important to note that the Treason Clause only applies to disloyal acts committed during times of war. If an act of disloyalty is committed during peacetime, they are not considered treasonous under the Constitution.

What Acts Have Been Found Treasonous in the Past?

Iva Toguri d’Aquino, a Japanese-American radio host who was better known as “Tokyo Rose,” was convicted of treason. Born to Japanese parents in America, she visited Japan in the early 1940s when war broke out and she became stuck in Japan. She took a job as a wartime DJ for Radio Tokyo, playing popular American music and engaged in banter that was considered a means to undermine the morale of U.S. troops.

Although most later believed that her banter did not undermine U.S. troops morale, there was public outcry when Tokyo Rose asked to return to the U.S. after the war. She was tried and found guilty of one count of treason for “[speaking] into a microphone concerning the loss of ships,” per the FBI. She served over six years of a 10-year sentence.

And you’ve probably heard of Julius and Ethel Rosenberg. They were the first American civilians executed in the electric chair under the Espionage Act in 1953. Julius and Ethel were arrested in July 1950 for heading a spy ring that passed top-secret information concerning the atomic bomb to the Soviet Union. They were sentenced to death after a short trial. However, they were not charged with treason because the Soviets were not considered enemies under the treason provision in 1953.

No one has been convicted of treason in the United States in nearly 70 years.

Do Trump’s Statements Rise to the Level of Treason?

No matter your political stance or if you find Trump’s statement deplorable, they don’t amount to treason. First, as noted above, treason is only found if a country or entity has declared war or is in a state of open war. While Russia is generally a foreign adversary, we are not at war with Russia. Second, the statement does not satisfy the “aid and comfort” requirement. Aid and comfort must be something material, like furnishing an enemy with weapons, not merely words of encouragement.

Certainly, Trump’s statements were unwise, but it does not rise to the level of treason. With the presidential campaign Trump has been running thus far, it’s only a matter of time before he says something else that’s controversial.

Only time will tell.

Should Those Convicted Of Domestic Violence Have Any Gun Rights?

Should those convicted of domestic violence be banned for life from owning firearms? On June 27th, the Supreme Court ruled against Voisine v. United States, a case that sought to strike down a federal amendment that bars individuals convicted of misdemeanor domestic violence from owning guns. Although the Court’s decision was clearly meant to protect domestic violence victims, the ruling means the perpetuation of an overreaching law that strips away defendant’s Second Amendment rights.

Was the Ruling in Voisine v. United States Fair?

Stephen Voisine and William Armstrong III, the two Maine men at the center of Voisine v. United States, were both convicted under the Lautenberg Amendment, a federal law which makes it a felony for people previously convicted of domestic violence misdemeanors to own or buy a gun. Those protected under the Lautenberg Amendment include a defendant’s spouse, ex-spouse, a parent to a defendant’s child or someone they lived with.

Stephen Voisine pleaded guilty to assault in 2004 after slapping his girlfriend in the face while he was intoxicated. He was convicted under the Lautenberg Amendment several years later, after someone anonymously reported seeing him shoot a bald eagle with a rifle. William Armstrong III pleaded guilty to assaulting his wife in 2008. He was convicted under the gun law a few years later, after police searching his home as part of a narcotics investigation found firearms and ammunition.

Lawyers for Voisine and Armstrong argued in Voisine v. United States that their client’s crimes didn’t qualify for the federal gun ban because the men’s assaults were committed “recklessly,” instead of knowingly or intentionally. According to Maine law, a person’s conduct is considered “reckless” when he or she knowingly ignores the risk that their behavior may cause others.

Nonetheless, the Supreme Court rejected arguments that the gun ban on those convicted of domestic violence misdemeanors only applies to intentional acts of abuse. Justice Elena Kegan argued that if the Lautenberg Amendment was interpreted to not include misdemeanors in which a person acted recklessly, the purpose of the law would be undermined. After all, the Lautenberg Amendment was designed to protect all domestic violence victims, not just those victims of premeditated abuse. In other words, acting impulsively and in the heat of the moment is not, the court found, an excuse for violence. Domestic Violence and Guns

However, Justice Clarence Thomas disagreed with the majority’s decision, stating that he found it troubling that a misdemeanor conviction could deprive someone of their Second Amendment right to bear arms. Thomas wrote that under the majority of the Supreme Court justice’s interpretation, “a single conviction under a state assault statute for recklessly causing an injury to a family member — such as by texting while driving — can now trigger a lifetime ban on gun ownership.” Justice Thomas’s concerns echoed the opinions of gun-rights activists, who also expressed concern at Voisine and Armstrong losing their constitutional right to bear arms.

When you consider Thomas’s point that someone who is convicted of “reckless” behavior that does not even involve a gun could lose their constitutional right to bear arms under the Lautenberg Amendment, the Supreme Court’s decision to uphold the law seems less than fair.

How the Supreme Courts Decision Conflicts with State-Level Domestic Violence Charges

Some states have what are referred to as domestic violence wobbler charges—cases in which the prosecutor must decide whether they should try to give the defendant a felony or misdemeanor charge. The type of charge ultimately given to a defendant depends on several factors including the circumstances of the case, the location of the arrest, the nature of the defendant’s relationship with the plaintiff, and the defendant’s criminal history. In some states the line between misdemeanor and felony can be very thin.

For example, a commonly charged offense in California (known as Penal Code Section 273.5) includes inflicting physical injury on a cohabitant, spouse, or someone the defendant has dated. This charge is considered a wobbler as the District Attorney can decide to reduce the charges to a misdemeanor if the victim’s injuries are deemed to not rise to the felony level.

Another common domestic violence charge, Penal Code Section 245, is often a felony charge, and it is also considered a strike under the Three Strikes Law in California. However, this charge is still considered a wobbler and can be reduced. In California, someone convicted of a felony under a wobbler law can, if they were not sentenced to state prison and successfully completed probation, have their charge reduced to a misdemeanor and have their gun rights restored.

While having any sort of criminal record is undesirable, being charged with a felony is much more detrimental to a defendant’s future than a misdemeanor. Someone charged with a felony could lose their right to vote as well as their ability to gain employment in certain fields. In many cases, convicted felons also lose their right to own or buy a firearm.

The ruling in Voisine v. United States sends a message to the public that even if you are only charged with a domestic violence misdemeanor, you could face restrictions on your constitutional rights similar to the restrictions placed on someone with a domestic violence felony. Most people are okay with restricting the rights of felons. Now, we are seeing the slippery slope of restricting the rights of those convicted of misdemeanors becoming a reality.

The Lautenberg Amendment eliminates, at least at the federal level, the weighing of specific circumstance in deciding how to charge domestic violence wobbler cases. That someone could lose their constitutional right to bear arms because of a misdemeanor (for something like texting while driving with a family member in the car, as Justice Clarence Thomas noted) is disturbing, and sets the stage for further restrictions on the futures of even low-level criminals.

Police Officers Claim Invasion of Privacy for Body Cameras That Remained On

A recent survey demonstrated that nearly every large police department plans to use body-worn cameras, with 95% either committed to body cameras or having completed their implementation.

Police in suburban Chicago village filed a federal civil rights lawsuit against the police department for those very body cameras. According to the complaint, the body cams recorded footage when the police officers had no idea the cameras were on. Footage included officers in the locker rooms and bathrooms over a seven-month period. Based on the footage, several police officers filed suit claiming the footage violated their civil rights and right to privacy.

The body cameras were used between September 2015 and May 2016. One of the plaintiffs discovered the footage while reviewing the video from his own body camera. The body cameras were no longer used after the footage was discovered. The police chief hired an independent investigator and attorney to review the body camera footage and to unearth what happened, but claimed the plaintiffs refused to comply. According to the police chief, the plaintiffs unnecessarily “jumped the gun” to file the lawsuit without cooperating with the independent investigation.

Do the Officers Have a Legitimate Complaint?

Although the use of body cameras by police departments is more prevalent now than ever, police chiefs who are wary about the technology cite privacy concerns or fears that the footage could be posted publicly online. Given this new lawsuit, it looks like their concerns are well-founded.

However, the recent trend is that many courts are demanding body cameras be used to help prosecutors and defense attorney ascertain the truth revolving around various police confrontation. This need for body cameras is especially apparent given the recent media coverage of police shootings of African American males. Body camera footage could give us the answers that we otherwise would not obtain.  Locker Room

Most police chiefs’ privacy concerns are based on civilians who feel their right to privacy has been violated because they had no knowledge of the use of body cameras. Nevertheless, the law finds that police can film civilians in public places, such as city streets, because no one has a reasonable expectation of privacy in public places.

But what happens when the footage captures private footage of police officers? The law isn’t clear. While the police officers were not in a public place and instead their place of employment, they did know that the body cameras were present and there was a possibility the cameras might record non-public moments.

On the other hand, the officers incorrectly believed they were turned off. Their best argument is that bathrooms and locker rooms in a place of employment are customarily considered private places such that cameras are not used in these places. Plaintiffs’ right to privacy does not disappear in these places simply because their job requires them to wear body cameras. For this reason, their complaint could be valid.

What are the Benefits and Disadvantages to Police Using Body Cameras?

With the privacy concerns associated with body cameras, are there really any benefits that could outweigh the privacy concerns?

Body cameras can record every interaction. The argument is that the use of the body camera will minimize complaints about police officers’ behavior as well as the use of unnecessary force because the officers are more accountable for their actions. They further protect officers from false accusations, misconduct and abuse. Camera footage can also provide valuable evidence that obtain accurate witnesses and victim statements.

On the other hand, body cameras can invade the privacy of civilians and police officers alike. Use of body cameras can prevent people from coming forward as witnesses for fear of retaliation or public exposure. Further, most body cameras are activated at the whim of the police officer. The officers can decide for how long the footage is stored and if and when it should be made accessible to the public.

The use of body cameras is an ongoing debate, and only time will tell whether police departments find them more helpful than harmful.

Police Body Cam Footage Won’t Be Considered Public Record Under North Carolina’s HB 972

“Black Lives Matter”

“Hands Up, Don’t Shoot”

“Blue Lives Matter”

Everyone’s familiar with these phrases that have been strung across the media lately. Issues surrounding police incidents and racial profiling have been all over the news since the Ferguson shooting in 2014 and things are only getting worse. As tensions increase between law enforcement and the public, states are in a scramble to balance the issues. North Carolina Governor Pat McCory has signed a bill into law that will no doubt ruffle some feathers.

Under House Bill 972, police body camera footage will not be considered a matter of public record. North Carolina isn’t alone, at least 30 states are considering some form of legislation that would limit public access to footage. So, why is this such a problem?

Lack of accessibility to body cam footage could mean, to some, a lack of police accountability. No accountability means no incentive to improve behavior. With open access laws to public records, HB 972’s exclusion of body camera footage as a public record presents a problem.

Open Record Laws Vary Across the Board

While the Freedom of Information Act governs federal bodies, every state has some form of open record law allowing members of the public to obtain documents from state and local government bodies. What counts as a public record? For the most part, states define a public record broadly. North Carolina defines public records as:

“ …all documents, papers, letters, maps, books, photographs, films, sound recordings, magnetic or other tapes, electronic data-processing records, artifacts, or other documentary material, regardless of physical form or characteristics, made ore received pursuant to law…”

Looks to me that body cam footage would be inclusive. Even though it’s broadly written, there’s little room left to argue that body cam footage shouldn’t be considered public record—body cam footage made while an officer is on duty is, by definition, a public record. Body Cam

HB 972 specifically exempts body cam footage from inclusion in this list. Footage can only be disclosed to a person whose image or voice is on the recording. When determining whether to fulfill a request, agencies can consider:

  1. whether the requesting party is authorized to make a request,
  2. whether the recording contains information otherwise confidential or exempt under state law,
  3. whether the disclosure would reveal information regarding a person of a highly sensitive nature,
  4. whether the disclosure would harm the reputation or jeopardize the safety of a person,
  5. whether the disclosure would create serious threat to the fair, impartial, and orderly administration of justice, and
  6. whether confidentiality is necessary to protect an active or inactive criminal investigation or potential investigation.

These factors leave a lot of room for interpretation. Requests can be denied and will only be released by court order. The ACLU stated “body cameras should be a tool to make law enforcement more transparent and accountable to the communities they serve but this shameful law will make it nearly impossible to achieve those goals.”

Public Records Offer Accountability, but Transparency Isn’t Always a Good Thing

Accountability is obviously the biggest reason why supporters say body camera footage should be public record and, by definition, they’re not wrong. Transparency offers that accountability the public wants—if the officers know they’re being recorded then they’re less likely to deviate from protocols.

Not only do they offer accountability, but many argue exposing the footage to the community will open the eyes of the many that don’t understand the tough decisions police officers have to face on an everyday basis and, thus, only improving the relationship between civilians and police.

On the flip side, privacy reasons are of number one concern. Body cams raise more issues than dash-cams because there’s the possibility of recording inside private residences or other places where individuals have an expectation of privacy. Anyone see a 4th Amendment unreasonable search and seizure issue here?

It’s a Balancing Act

Allowing access quickly is definitely important in cases where police misconduct is alleged, not just for the individual involved, but for the safety of police officers and the surrounding community as well. However, because of the constitutional issues surrounding body camera footage there definitely needs to be a balance between the public’s right to the information with an individual’s right to privacy, especially when you have a hot button issue like police brutality and racial profiling as a factor.

Body cam footage can often times record people at their worst and, despite a need for police accountability, footage shouldn’t be released to just anyone. Who wants their drunken arrest or private information blasted all over the internet by some blogger? Most would say no thank you.

Just as any other public record, footage would be subject to certain exemptions and North Carolina’s law is no different—implementing an extra law limiting the access even further seems unnecessary. I’m all for legislation implementing a process for which interested parties can gain access to footage, but it shouldn’t be difficult to nearly impossible to do so either.

Will Clinton’s Email Controversy Benefit Whistleblowers?

Is Hilary Clinton any different than Edward Snowden? Well, there’s one major difference between the two—Snowden purposefully leaked top-secret documents on U.S. surveillance programs whereas Clinton claims no such thing in how she handled classified emails.

Despite the fact Clinton may have had no intentional or malicious intent, there are plenty of other government employees who have gotten the axe for much less. Does the fact that Clinton was not indicted for mishandling classified emails mean whistleblowers are off the hook?

If you’re not familiar with the Clinton email controversy, here’s the low down. As Secretary of State, Clinton used her family’s private email server for official communications that should have been used on the official State Department email accounts located on federal servers.  Why the big deal?  Well, thousands of these emails were later marked as classified, posing a potential security threat if on the off chance any of those emails were hacked.

While many seem split on whether Clinton committed a crime, others say it’s likely she violated government procedures and rules but didn’t violate the law in and of itself. Clinton acted “extremely careless”, according to FBI Director Comey, but no laws were broken. Clinton

Contrast with Edward Snowden, a former government contractor who purposefully leaked national security information from the NSA, who is obviously pretty peeved no charges were brought against Clinton considering he’s facing up to 30 years in prison if he steps a foot back into the U.S. In a Twitter post, Snowden’s response to the news was more than unenthusiastic:

“Break classification rules for the public’s benefit, and you could be exiled. Do it for personal benefit, and you could be President”

Whistleblower Protection Act Only Offers Protections to Some

The 1989 Whistleblower Protection Act protects federal employees from agency backlash for whistleblowing.  Even despite the law, many employees were often fired, demoted, reassigned, or lost their security clearances after stepping forward against their government employers.  At the beginning of Barack Obama’s presidential campaign, one thing he promised was to strengthen the laws to better protect whistleblowers from negative repercussions.

Obama promised to speed up the review process of claims and grant whistleblowers full access to jury trials and due process. Although he followed through on part of his promise, one area remains unprotected—free speech protections don’t extend to whistleblowers in the intelligence community.

Obama did, however, pass an executive order appearing to extend the same protections to the intelligence community by allowing them to use internal channels, rather than the media, but many advocates suggest this is merely a façade and doesn’t afford the same protections as a Congressional law.

Does Clinton’s Lack of Indictment Set a Precedent Offering More Employee Protections?

Despite Clinton’s reprieve, the government’s insistence on punishing secrecy violations shows no sign of a change. As with any other criminal case, situations will be investigated on a case-by-case basis, which means Clinton’s lack of indictment isn’t going to offer any sort of blanket coverage, especially when you consider the fact that the Obama administration has prosecuted more leakers under the 1917 Espionage Act than all prior administrations combined.

In 2015, David Petraeus, former CIA Director, plead guilty to a felony charge of unauthorized removal and retention of classified information for providing his mistress with classified information. Petty Officer First Class Kristian Saucier used a cellphone camera to take photos in a classified engine room of the nuclear submarine where he worked as a mechanic.  In May, he entered a guilty plea for unlawful retention of national defense information.  These are just a few examples.

Regardless of whether protections are offered under whistleblower laws, none of them would have protected Snowden.  One important thing to remember is that whistleblower protection, whether at the government or private level, are only triggered if employees go through the appropriate channels—not leaks to the media.

Even so, where are the protections when, in cases like Clinton or Petty Officer Saucier, information is simply mishandled without malicious intent?  These kinds of cases where information is mishandled shouldn’t even warrant criminal charges, but nonetheless, they do and there definitely seems to be an imbalance in terms of who gets prosecuted and who doesn’t.

 



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