Archive for the 'Government' Category

Why A Blind Trust Is So Important for a Trump Presidency

Not every U.S. President has used blind trusts during their time in office.  In fact, Obama was the most recent president that chose not to use a blind trust.  However, the Obamas had bank accounts, treasury notes, index funds and college savings that were unlikely to pose any direct conflicts of interest while in office. President elect Donald Trump can’t say the same thing regarding his financial portfolio—he’s set to be the wealthiest president in American history.

Trump’s attorney, Michel Cohen, recently announced that Trump’s massive business holdings would in fact be placed into a blind trust to be controlled by his three eldest children.  If you’re not sure whether that sounds like a conflict of interest in and of itself, let’s take a look at what a true blind trust should look like.

“Blind” means Blind

A blind trust is a trust in which the trustee has full discretion over the assets and the trust beneficiaries have no knowledge or communication of the holdings of the trust.  These are typically used by federal officials to avoid any potential conflicts of interest that may arise during their time in office.  The federal government recognizes “qualified blind trusts” (QBT), but in order for them to be qualified, the trusts must not be affiliated with, associated with, related to, or subject to the control or influence of the federal official.

A trustee has full discretion over the assets within a blind trust, which means a trustee should not be a current or former investment advisor, accountant, attorney, or relative.  In other words, in order for a trust to be completely blind, the trustee needs to essentially be a stranger.  At the very least, it should be someone that doesn’t have any personal incentive or ties to the federal official.

Not only do Trump’s children have financial beneficiary conflicts with managing the trust, but they continue to advise Trump on his transition team, making the details of the trust extremely accessible to Trump.  It’s a bit misleading for Cohen to represent Trump’s plans as a blind trust.  It’s not blind at all.

What’s another important requirement of a blind trust?  It’s hard for a trust owner to be truly bling to their holdings unless assets are liquidated and then transferred into the blind trust.  Doing so allows the the trustee to reinvest and/or manage the assets at their discretion, leaving a trust owner completely blind.  This would require Trump to sell everything, some of which he doesn’t even have the power to do without partner consent.  Letting his children take over and run the businesses isn’t enough for him to be completely blind.

Unprecedented Business Dealings Present Greater Conflict of Interest Threats

So, we’ve settled on the fact that, as of now, Trump’s blind trust will not actually be a blind trust.  Why should it matter, you ask?

Trump is unique from any other president in that so much of his wealth is tied to the “Trump” brand.  Trump has listed roughly 500 companies on his latest FEC filing and has business deals in more than half a dozen countries.  There has never been a president with as vast of business conflicts both domestically and internationally before and, even despite the best of intentions, anyone with the sheer number of companies as Trump would be hard pressed to make completely unbiased decisions.

A blind trust, a true one, would prevent impartial decision making for personal economic interest, which is why conflict of interest laws were created in the first place.

In the wake of the Nixon Watergate scandal, the Ethics in Government Act of 1978 was passed, creating mandatory public disclosure laws for public officials and their immediate family.  In addition to public disclosure, the Act mandates that officials cannot use their public office for personal gain.  Congress has, however, exempted presidents and vice presidents from these conflict-of-interest laws on the basis that a presidency has so much power that any possible decisions or actions would be nearly impossible to be kept free from conflicts of interest; requiring the executive office to remove themselves from decision making when there’s a conflict could create constitutional issues.

There’s a deep seated principle that an official shouldn’t use public office for private gain and, even despite the looser legal requirements, most presidents have have opted to take measures to separate themselves from their personal financial assets in order to avoid conflicts of interest.  Nevertheless, Trump has construed these looser requirements to mean “the president can’t have a conflict of interest.”  I do believe that’s quite the opposite of the intent of the exemption but, even so, there isn’t really anything stopping Trump from continuing to operate business as usual.

The History of the First Amendment and Flag Burning

The debate over how the American flag should be treated when it comes to freedom of speech and expression-both in recent days and over the years-is a question of law that brings out the highest passions on both sides of the issue. Just last week, our new President-elect Donald Trump reignited the age-old debate with a tweet suggesting that that burning a United States flag should carry extreme penalties. He went so far as to suggest that it should cost a year of jail time—which would make the act a felony—or even lead to the individual who burned the flag being stripped of citizenship.

While these recommendations are likely some of the most extreme suggestions to come from a politician, their very extremity stems from the undercurrent of anger surrounding the act of flag burning—whether against the government or against the very people who burn the flag.  There are many who consider the act of burning the flag the ultimate act of protest against the acts of the government that represents the ideals of that flag.  At the same time, there are plenty of people who view the flag as a symbol of the United States and burning it an attack on the country itself.

Regardless of belief, however, it is a legal fact that the act of burning a flag is constitutionally protected first amendment expression—symbolic speech.  The Supreme Court has ruled as much not once, but twice, in the cases of Texas v. Johnson and U.S. v. Eichman.

Texas v. Johnson

Texas v. Johnson dealt with the acts of Gregory Lee Johnson.  At a protest outside the 1984 Republican National Convention, Johnson burned an American flag stolen by another from a nearby flagpole.  The act drew international media coverage, although nobody was actually injured.

At the time, Johnson’s act was a crime under Texas law and a court sentenced him to a year in prison and a fine of $2,000 for his actions.  However, the Texas Criminal Court of Appeal reversed this ruling saying that “the right to differ is the centerpiece of our First Amendment freedoms, a government cannot mandate by fiat a feeling of unity in its citizens. Therefore that very same government cannot carve out a symbol of unity and prescribe a set of approved messages to be associated with that symbol.”

The case went from there all the way to the Supreme Court of the United States, presenting the first case ever before them where they needed to decide whether a non-speech act such a burning the flag was protected by the First Amendment.  In 1989, the Court ruled that while an act is not always protected simply by its intent to communicate a message, an act is protected where the is both 1) and intent to convey a particular message through an act and 2) whether the message was understood by the majority of those who viewed the act.  They decided that Johnson’s act of burning the flag sent a clear message that was easily understood, and thus deserved First Amendment protection.

They also decided that, while speech can be outside the protection of the First Amendment where it incites others to immediate acts of violence, this was not the case here.

This decision had an enormous impact on the laws of the United States—making flag burning statutes in forty-eight different states unconstitutional.

U.S v. Eichman

The response to the ruling in Texas v. Johnson was swift.  In the same year of the ruling, Congress passed the Flag Protection Act.  This act made it a federal crime to burn or desecrate the flag of the United States.  The very next year, in 1990, the Flag Protection Act was before the Supreme Court in the case of U.S. v. Eichman.

In two different states, flag burning at protests by the anti-war group the Vietnam Veterans Against the War Anti-Imperialist led to charges against protesters.  In both cases, the charges against the protesters were dismissed followed by an appeal to the Supreme Court challenging the constitutionality of the Flag Protection Act.  These two cases were combined and became U.S. v. Eichman.

This time, the Supreme Court was crystal clear.  It outright ruled that any statute that barred desecrating the flag, state or federal, was unconstitutional.  The decision argued that, while some may be incredibly offended by the act of burning a flag, the government may not prohibit speech simply because society finds it offensive. What’s more, the government certainly may not ban speech with the intent of suppressing the ideas behind that speech.

The Legal Debate Still Rages On

Despite these rulings, there has been no shortage of attempts to introduce a constitutional amendment to make the desecration of the American Flag illegal.  Since 1991, there have been 41 different proposals for such a constitutional amendment.  Some of the votes on these proposals have been extremely close, in 2006 a proposal for a constitutional amendment failed by only a single vote.

There are also, despite the unconstitutionality of statutes barring flag burning, situations where burning a flag can be illegal.  For instance, if there is another crime involved—for instance if somebody besides the one doing the burning was the owner the of the burned flag—the person burning the flag can still be charged with that crime.  What’s more, where a statute is neutral as to the content of speech—instead regulating the time, place, or manner of speech, it is constitutional.  Thus, a statute making it illegal to burn anything outside of a fire pit in a National Park could be constitutional but still make it illegal to burn a flag while in the National Park—unless you did it in a fire pit.

Flag burning is, and likely will always be, a topic distinguished by the extremely high passions on both sides of the issue.  However, barring a constitutional amendment, any law making it a crime to burn the flag—never mind the unheard-of punishment of stripping a person citizenship—will be patently unconstitutional.  The act of burning a flag communicates a deep discontent with the U.S. government and what the flag represents.  This can be offensive to some.  However, it is because it communicates such a clear, controversial, political message that the act receives the protection it does. No matter the form it takes, do we really want the government to have the power to censor speech criticizing it?

So How About that Wall?

President-elect Donald Trump made building a wall on the US-Mexico border a pillar of his campaign. Post-election interviews reveal he intends to keep and act upon this campaign promise. No matter one’s opinion on whether building such a wall is right course of action, there are many practical concerns to be addressed.

How Big and How Expensive will it be?

The US-Mexico border is 1,989 miles long and the President-elect has proposed 35-foot-tall walls. As far as cost, some good estimates can be made as US Customs and Border Protection already began building some fences in 2007 and the Government Accountability Office released a report on the costs and issues faced. The GAO reported that the amount of fence constructed already has cost up to $5 million per mile. Basic math then tells us that this could cost $10 billion just for a fence along the entirety of the border. However, the President-elect has promised a “wall”, this may prove to be even more expensive. Furthermore, the current work was done to tackle areas of public land first to avoid dealing with private land owners. Eventually, the government must either get permission to build across private land or take the land through a process called eminent domain.

How will the Government Get the Land?

TrumpCan the government really take land from private land owners? Yes, it can, both state governments and the federal government may do so. The Constitution specifically allows the government to do so as long as they pay fair market value for the land. That is, if the government wishes to seize the land and the owner refuses to sell it willingly the government may seize it against the owner’s wishes as long as the government pays fair market value.

Another requirement is the seized land must be used for some public purpose. This mean that eminent domain cannot be used to seize land for purely private purposes. For example, a state governor could not use eminent domain to seize land for their friend to build a private home on the land. On the other side, clearly public uses are easily approved, such as seizing land for public utility purposes like electricity poles and telephone cables. Many projects fall in the middle of this spectrum so the legitimacy of eminent domain is questionable in these areas. However, Supreme Court cases on this issue though have found this to be almost a non-issue. In particular, the Supreme Court case of Kelo v. City of New London rendered this issue almost unimportant. In Kelo, the city of New London, Connecticut wished to seize Ms. Susette Kelo’s home so that the headquarters of a private company could be built on the land. While Ms. Kelo asserted that this was a private use, the Supreme Court disagreed. The ruling in Kelo has set precedent that questionable eminent domain takings will usually be upheld by US courts.

Overall, a border wall would likely not encounter any issues with eminent domain. It’s clearly for a public purpose, national security and immigration. With this hurdle passed, the only issue would be fair market value for the land. US Customs and Border Protection has already estimated this cost to be about $800,000 per mile.

Is This Already Happening?

Yes, it is already happening. When US Customs and Border Protection began building these border fences in 2007 they needed some private land that is on the US-Mexico border. Many land owners willingly sold their land, while others chose to fight the taking in court. Unfortunately for the land owners, courts consistently ruled for the federal government. This very thing happened when US Customs and Border Protection needed Dr. Eloisa G. Tamez’s ancestral land to build a border fence. Dr. Tamez took the federal government to court. In 2013 a US court ruled that US Customs and Border Protection could take Dr. Tamez’s land that had been inhabited by her family since 1767. Dr, Tamez’s case is not unusual and similar incidents are very likely to occur if the President-elect carries out his campaign promise.

Is This Really Going to Happen?

It looks like the President-elect’s plan is entirely possible and plausible. The federal government would likely be able to acquire any border land it needs for the wall through eminent domain. The only hurdle would be the cost, which would have to be set aside by Congress. However, this likely will not be an issue either as Congress has consistently approved funding for border fencing and border patrols. Overall, if the President-elect decides the act upon this campaign promise there will be very little to stop him.

The Unexpected Oregon Militia Ruling and Understanding Criminal Conspiracy

Most have probably heard by now of the armed militia which occupied a federal building in Oregon. For those who have not, the cliff notes version is that a group of armed militia forced their way into the Malheur National Wildlife Refuge and stayed in the building, preventing all others from entering, for 41 days in a standoff with police. The militia stated that the occupation was in protest of the imprisonment of two ranchers for arson and the federal government’s mismanagement of land. The militia members were ultimately arrested on Jan 26th in a confrontation in which one member of the militia was shot to death.

Following their extremely public armed takeover of a federal building, it seemed certain that this militia would face—and be found guilty of—several criminal charges including conspiracy to prevent federal employees from performing their jobs through intimidation, threats or force, and firearms charges.  Of the 26 militia members arrested, 11 pled guilty to charges brought against them immediately.  However, in a shocking recent decision, the leaders of the armed Oregon militants were, all seven including the masterminds Ammon and Ryan Bundy, found not guilty of all charges—including conspiracy charges—against them. One defendant was even found not guilty of stealing federal property after he admitted in court that he took and used a government vehicle. The ruling was surprising even to the militants’ own defense lawyer, who said in interviews after the ruling that he had already been telling his clients to expect to be found guilty.


The acquittals have led many to note the stark contrast between the treatment of those who staged an armed invasion in Oregon—cleared of all charges and allowed by authorities to leave for Chinese food and return again to the refuge—and the unarmed, peaceful Dakota Pipeline protesters—mass arrested, set on by dogs and sonic guns, horses shot by police, sprayed with water cannons on below freezing nights, tents bulldozed, and more.

Dakota Pipeline protesters have themselves said that they had considered arming, but not only believed that a peaceful protest was more effective but were certain they would all be killed if they chose to arm themselves. With this in mind, the ruling has been a source of frustration and anger for many who feel that it shows a gap between the treatment of white people and persons of color in the justice system. However, while the contrast between the treatment of the two groups is indeed notable, jurors on the Oregon militant case have come forward and said that source of their ruling was not their approval or belief in the militants’ actions but instead the failure of the prosecution to prove the elements of conspiracy

Conspiracy is Complicated.

Conspiracy is, without question, one of the most complicated subjects that exists in criminal law.  It is not hard to believe that a jury was unconvinced of all the elements of this extremely complex crime.  At its base, a criminal conspiracy is the agreement between two or more people to commit a crime.  However, the evidence required to prove that an actual conspiracy occurred goes further than this simple explanation would lead one to believe.

The most basic evidence required is the evidence that the conspiracy actually occurred; that two or more people made an agreement to commit a commit a crime. However, from this point the evidence moves to determine the state of mind of the parties when they made this agreement—a much more difficult thing to prove.

Conspiracy is a specific intent crime. This means that it must be done with the knowledge of what you are doing and the objective of completing an unlawful activity. In order to prove this, the prosecution must establish several things. First, they must show that the defendant intended to agree to commit a crime at the time the agreement was entered. Second, the prosecution must prove that the defendant intended to accomplish the criminal objective of the would-be conspiracy when they entered the agreement. If for instance, somebody agreed to rob a bank but in their own mind they actually planned to skip town the next day they would not be guilty.

To say that this can be extremely difficult to establish would be an understatement. After all, the only direct evidence of this intent would be in the mind of the defendant themselves unless they decided to write down or record that state of mind as they made the agreement.  As you might imagine, situations with direct evidence are extremely uncommon. So it is far more common to see intent proven through circumstantial evidence such as a defendant’s actions after the agreement and what the defendant stood to gain if the conspiracy was carried out

In this case, where the militants were accused of conspiracy to prevent federal employees from performing their duties, there would need to be evidence of an agreement to achieve this goal and specific intent to follow through with it. The militants argued that, while they did discuss occupying the buildings, they never actually discussed stopping any individuals from working.  Instead, they argued that they only wanted the lands and buildings themselves. While preventing employees from working seems like a near certain outcome of armed occupation of the lands, if this argument were bought it would mean they the militants never formed an agreement with the intent to commit the crime they are accused of conspiring and not guilty.

While this was likely the lynchpin of any legal determination of innocence by the jury in this case, it only touches the tip of the iceberg when it comes to the complexity of proving criminal conspiracy.  Defendants must also be established to have knowledge of the existence of the conspiracy and the illegal object of the conspiracy. In most states, they must also have been shown to have taken a substantial step towards or an overt act in furtherance of the crime that is the goal of the conspiracy. Exactly what can constitute such an act or step can vary from state to state—and a discussion of what exactly is the minimum that can constitute such an act or step could be the subject of a book—but an example might be purchasing a gun to be used in a conspiracy to rob a bank.

This may seem like a lot hoops to have to jump through to prove conspiracy, but the punishment for conspiracy requires a rigorous evidentiary standard. In a conspiracy, each conspirator is on the hook for the criminal acts of every other conspirator so long as the crimes were committed in furtherance of their conspiracy—whether they knew about them or not. There are some states where a person found guilty of conspiracy is sentenced to penalties related to, but less than, the punishment for the crime they conspired to commit.  However, in the majority of states—including Oregon—a person found guilty of a conspiracy to commit a crime will receive the same sentencing as if they had committed the actual crime.

What This Case Means for the Future.

The result of this case has shaken many to the core—from those who argue it reveals a two-tiered justice system to the Oregon federal workers who have stated that they are left in fear after what they worry could be taken as a tacit approval of the militants’ actions—encouraging further action in the same vein.

The Bundy’s, who led the militia, aren’t totally off the hook.  Even though they are acquitted, they still will not go free just yet as they also need to stand trial in Nevada for an armed standoff with authorities over unpaid grazing fees. Although, this is unlikely to do much to assuage concerns as five other militia members walk free.

The legal reality is that conspiracy is a very complicated and difficult to prove area of criminal law, it is very possible that there simply was not enough evidence to mount a fully effective case on this issue. It is even possible that the evidence was lacking when it came to firearms charges and stolen federal vehicles. That may be the legal reality, but it is unlikely to combat the perception of injustice created by the contrast between the result of this case and the treatment of protesters such as those at the Dakota Pipeline.

Arkansas Court’s Issue 7 Ballot Ban Leads to Another Lawsuit

Election Day is when new leaders are chosen and new laws are made by voters. That is why it is imperative that various government entities afford voters an opportunity to be well-informed on the matters and candidates that they are voting on. However, three voters in Arkansas have felt that they were not properly informed when they cast their ballots and filed a lawsuit in response.

When Jim and Cynde Watson voted in Marion County, they were not informed that a provision that still appeared on the printed ballot was no longer available for people to vote on. That provision was Issue 7, a controversial state law measure better known as the Medical Cannabis Act. The Arkansas Supreme Court barred Issue 7 from being a matter to be voted on when it was determined that over 12,000 signatures were obtained improperly. However, by the time that the Arkansas Supreme Court made the decision, the ballots had already been printed and were available for people to vote. So it was up to the pollworkers to inform voters that they could no longer vote on Issue 7.

Ms. Watson had heard about the lawsuit involving Issue 7. However, when Ms. Watson inquired about whether she and her husband could still vote on Issue 7, the pollworker she asked wrongly informed her that Issue 7 could still be voted on. A small sign notifying voters that Issue 7 could not be voted on was present in the polling place, but Mr. and Ms. Watson are arguing that the sign was placed in a location where it did not grab their attention. The Watsons and their fellow voter who joined them in the lawsuit over the lack of information regarding Issue 7 state that their misunderstanding over whether they could vote for Issue 7 impacted how they voted on another issue on the ballot.
Supreme Court

What Are the States Required to Tell Voters?

States are required by federal law to inform local voters about everything that they are voting on. The Help America Vote Act of 2002 (HAVA) requires states to have a formal plan for voter education to ensure that all voters have access to all of the information that they need to vote, especially with regard to measures that could become laws. As a basic part of providing voter education, states need to ensure that voters know what measures they can vote on and what measures they cannot vote on, even though the measures are still on the ballot. Informing voters about what cannot be considered on the ballot is especially important as this information can influence how a voter chooses to vote, which is what allegedly happened in Arkansas.

When the Watsons were misinformed by the pollworker as to whether Issue 7 could still be voted on, they voted in a manner that was different than if they had known for sure that their vote for Issue 7 would not count. On the original ballots for the 2016 Arkansas state and national elections, there were two measures that would lead to the legalization of medical marijuana. In addition to Issue 7, Arkansas voters were also able to legalize medical marijuana through Issue 6. However, Issue 6 did not contain a provision that would permit certain patients to grow marijuana on their own, making Issue 7 the more popular choice between the two measures. The Watsons chose to vote for Issue 7 because they preferred Issue 7 to Issue 6, and they were under the impression that they could still vote for Issue 7. If the Watsons knew that they could not vote for Issue 7, and that their only choice for legalizing medical marijuana was Issue 6, then they would have voted for Issue 6.

After the Watsons had voted, choosing to vote for Issue 7 and vote against Issue 6, they realized that the pollworker was wrong about the validity of their vote for Issue 7.  However, it was too late for the Watsons to change their votes and vote for Issue 6 instead. Out of concern that there were other voters like them who thought that their vote for Issue 7 would count when that vote was cast, the Watsons decided to file a lawsuit asking that everyone who voted for Issue 7 to be able to recast their vote with regard to Issue 6. The lawsuit also sought to change the manner in which pollworkers inform voters about the change in the ballot. Instead of merely having a small sign tucked away in amongst several other signs where it may not be seen, the plaintiffs wanted three signs clearly notifying voters that Issue 7 could no longer be voted on placed in prominent locations in each polling place. This would likely be sufficient to inform voters that, despite Issue 7’s appearance on the ballot, they could not vote on the matter.

Why This Matters, Now and In the Long Run.

Issue 6 did pass in Arkansas, thereby negating the need for anyone who voted for Issue 7 and against Issue 6 to change their vote. However, the larger issue of the misinformation shared by the pollworker and the need to improve voter education remains. By filing the lawsuit, the voters highlighted the blatant inadequacies of the current voter education system in Arkansas. Lawsuits such as this are important, as they can be the only way that impactful change is made. Regardless of the official outcome of the lawsuit, Arkansas will likely change how it informs voters about any changes made to the ballot and about any issues that can no longer be voted on.

Providing access to voter education materials and ensuring that registered voters know about what they are voting on are important duties of every state government. If you feel that you are being denied access to voter education or that your right to vote is otherwise being impeded by your state’s government, contact a government lawyer.