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Understanding the Russia Investigation: When Does an Attempt turn into a Crime?

Special Counsel Robert Mueller’s grand jury has begun issuing subpoenas into the June 2016 meeting between the President’s son, son-in-law, second campaign manager, and lawyers from Russia. After Donald Trump Jr. disclosed a series of e-mails about the meeting, critics condemned the meeting as an attempt to commit collusion with Russia.

Although the average American will never be accused of colluding with Russia, an attempt to commit a crime is still a crime under federal and all state law. Regardless of your politics, it’s still good to know where the line between committing a crime and an innocent act is.

Missing Causation

Most crimes have three elements: intent, causation, and the criminal act itself. In order to be guilty of murder, the prosecution must prove that the defendant intended to kill the victim, took steps to kill the victim, and those efforts caused the defendant to die.  For example, Dan wanted to kill Vicky because she broke up with him, so Dan used his car to run her over, causing her death. In that situation, Dan would be guilty of murder.

However, if we removed one of the elements, it would be harder to determine whether Dan was guilty. If we remove the intent element, the murder charge would fail. If Dan hit Vicky with his car, but it was the result of Dan being careless rather than a malicious intent, then Dan would be liable for a wrongful death, but it wouldn’t a murder. Similarly, if we remove the criminal act, Dan would also be off the hook.  If Dan wanted to kill Vicky, but never takes any action, then Dan would not be guilty. Even if Vicky gets struck by someone else’s car, Dan wouldn’t be guilty (unless Dan was somehow involved in the other car hitting Vicky).

The hardest situation to evaluate is lack of causation. Suppose that Dan intended to kill Vicky and drove a car into her. However, Vicky doesn’t die because Dan hit her with a car. Instead, Vicky dies because of medical malpractice by her physician. In this case, Dan’s lawyer could argue that Dan can’t be guilty of murder because his intent and his action didn’t actually cause Vicky to die; the doctor was the one who actually killed her.

So, Dan’s not guilty of murder, right? Dan might not be guilty of murder, but every state would charge him with attempted murder. Since Dan intended to kill his ex-girlfriend and took a substantive step towards killing her, Dan would be found guilty of attempted murder, even if the actual criminal act failed to kill Vicky. Although the doctor’s malpractice was an intervening cause, it was Dan’s car that put Vicky in a position where she needed treatment in the first place.

Russia InvestigationEntrapment

In many sting operations, defendants will claim that the police entrapped them. That is, the police convinced them to commit a crime that they wouldn’t have committed had the police not been involved. For example, suppose that Dan, still mad at Vicky, seeks out an undercover police officer to form a contract to kill Vicky. After Dan pays half the money, the officer arrests Dan and doesn’t kill Vicky. Prosecutors charge Dan with attempted murder and Dan claims entrapment as his defense.

Unfortunately for Dan, he would lose if he claimed entrapment. In order for entrapment to be successful, the police must convince the defendant to commit the crime. Since it was Dan who contacted the officer first, Dan formed his intention to kill Vicky on his own. The fact that Dan fell for a sting operation doesn’t change the fact that it was Dan who initiated the crime. Entrapment would only be successful if the officer somehow convinced Dan into joining an attempted murder of Vicky.

Why do I bring up entrapment as a defense? Before Reince Priebus was terminated from his position as White House Chief of Staff, Priebus argued that the Russians the Trump Campaign meet with had ties to Fusion GPS, the organization that created the original memos linking the Trump Campaign to Russia and funded by the Jeb! Bush campaign and later by Democrats. In other words, Priebus claimed that Trump Jr. was set up by Democrats to take the meeting with the Russians.

Is There Enough to Convict?

Right now, there aren’t enough facts to determine whether the Trump campaign was entrapped. Certainly the chain of emails released by Trump’s son shows that it was the Russians who initiated contact, not the campaign. However, we don’t know if there were any e-mails, phone calls, or other contact prior to the publicly revealed e-mail chain. Only the Special Counsel would know right now if Democrats actually entrapped the Trump campaign or not.

Fox News and the Pitfalls of Sexual Harassment

Over the weekend, another Fox News host has come under fire for sexual harassment. Fox News suspended Eric Bolling after three women accused him of sending lewd photos. Twitter users were quick to point out Bolling’s hypocrisy by resurrecting a Bolling Tweet from 2011, asking “why would anyone take a picture of one’s junk anyway?”Bolling’s suspension is the latest in a string of sexual harassment scandals that have rocked the network:

To date, Fox News has paid $13 million to settle claims of sexual harassment towards women by its employees. Even if Fox News doesn’t believe in feminism, its shareholders have a significant interest in avoiding lawsuits that result in million dollar payments to the other party. So can a profit minded company avoid these kinds of harassment claims?

Sexual HarassmentChange the Corporate Culture

Given the recent terminations of prominent television hosts and high ranking executives, Fox News probably has a larger issue with sexual harassment than a couple of rogue employees. Critics might be quick to point to Fox New’s political affiliations; how could an organization that defended “grab them by the pussy” not be a hostile work environment? However, most politically conservative organizations (Heritage Foundation, National Review, Federalist Society, etc.) don’t have the same sexual harassment problems that Fox News has right now. Fox News doesn’t have to change its political stances to police its employee’s sexual abuses.

One of the biggest factors is how the organization deals with sexual harassment. If the company settles a complaint and demands the victim keep quiet about his or her allegations, the problem will continue. Likewise, if the company merely transfers the harasser between departments, then the problem with persist. The harasser will feel protected and will continue with different women. The Catholic Church had similar issues for decades, transferring priests accused of sexually molesting boys between different churches while praying that the offending priests would stop if they were moved away from the initial victims.

Another big factor in corporate sexual harassment is failure to publically highlight the issue. Allegations of sexual abuse are often embarrassing for the abuser, the abusee, and the company at large. However, if the company fails to educate its employees about sexual harassment, even if employees know or suspect sexual abuse is occurring, the company will be promoting the behavior. Corporate managers might not condone sexual abuse, but failure to speak up will be read as implicit approval of the harasser’s behavior.

Ditch the Arbitration System

Fox News favors arbitration boards to settle complaints, including them in every employment contract. Although arbitration is a legal way of resolving disputes, companies relying on arbitration to address sexual harassment should use Fox News as a model of how everything can go wrong. Arbitration is best described as an informal trial. Instead of a judge, an arbitrator decides the case. Arbitration usually doesn’t follow the rules of evidence, allowing the arbitrator to make decisions faster and at a cheaper cost than a judge would.

Although arbitration is a reasonable way to settle many business disputes, sexual harassment is not the best issue for arbitration to address. In a normal trial, both parties are assured that the judge will remain objective and will consider the arguments presented by both sides. With arbitration, the arbitrator is often selected by the company itself. Even if the arbitrator is truly objective, employees making serious allegations may not trust the arbitrator to be impartial.

More importantly, arbitrations are not subject to the same rules of evidence. Corporations might favor arbitration as a cheaper alternative, but there is an important rule of evidence that makes trial more equitable for the accuser. In a normal trial, the defendant is not allowed to introduce evidence of the victim’s own impropriety as a defense.  In other words, just because Jane sleeps around with different men doesn’t mean that she welcomes John’s sexual advances. Throwing out this rule of evidence only serves to make arbitration another potential avenue to harass the victim. Even worse, arbitration is binding and appeals are rarely granted, so any decision that the arbitrator makes will be binding.

Arbitration is obviously flawed from the employee’s view, but these downsides also affect the employer. Arbitration can manage a few isolated cases, but if the floodgates open, as they are opening now for Fox News, the outpour will be more than Human Resource and in house counsel can manage. The problem with relying on a system that overwhelming favors one party is that when the other parties no longer have faith in the system, that system will collapse.

Fox News has avoided its sexual harassment claims for decades, but the built up has now destroyed the dam.  Hopefully a change in corporate culture can built a more stable foundation.

Alabama Abortion Law Ruled Too Restrictive to be Constitutional

Defining the constitutional outer limits of abortion law has been one of the hardest fought battles in the history of law. To be frank it is a battle that continues to be fought throughout the nation. As the makeup of the Supreme Court shifts, it is one of the topics that is most keenly considered in selecting Justices. This is in large part due to the sheer number of laws on the issue coming out of or being considered by legislatures in the many states. This has been especially true in the last decade or so as states have taken increasingly hostile stances towards the practice-of the slightly over a thousand abortion restrictions made into law around 300 of them have come between 2010 and 2016.

Alabama has had a healthy share of these restrictions over time. In fact, it’s one of the most restrictive states in the country. As of now, Alabama laws require a woman to receive state-directed counseling and wait 48 hours before receiving an abortion, some means of abortion common elsewhere are restricted, public funding and health care for abortion is allowed only in cases of rape, incest, or when a woman’s life is in danger, a woman must undergo and ultrasound and be asked if she wants to see it before receiving an abortion, also abortions may only be performed up to 22 weeks after the woman’s last menstrual period. Also, if you’re a minor, you need to receive parental consent before you can receive an abortion.

Up until recently, the rules for minors didn’t end there. As part of their parental consent rule, Alabama includes a judicial bypass clause. This is required for such a restriction to be constitutional and basically means that a minor whose parents won’t consent can turn to the courts to rule that she is or isn’t mature enough to decide for herself whether she should get an abortion or whether an abortion is in her best interests as a minor. Alabama, however, went a little further to complicate this process for minors. In 2014, Alabama added an additional provision to the law–unique to Alabama–which added a sort of mini-trial to the proceedings. The new law added two extra hoops for these minors, and they were some serious hoops. First, a judge can appoint a guardian ad litem for the fetus–essentially a party whose job was to advocate for the fetus (sort of like a fetus lawyer) in all proceedings regarding a judicial bypass. Second, it required the local district attorney to be involved in the proceedings and allowed them to bring witnesses to the hearing to question the girl’s maturity. This basically meant that a girl’s friends, family, therapist, preacher–basically anybody connected to her–could be called as a character witness to one of her most vulnerable times.

alabama_abortion_lawFortunately, last week a federal judge struck down these additional provisions as unconstitutional. To understand why, let’s look at the case, the logic behind the act itself, and the constitutional law governing the type of abortion restrictions that a state can impose.

The Reasoning Behind the Ruling

The state’s argument behind the law was that it was designed to create a confidential and meaningful inquiry into a minor’s maturity when seeking an abortion without parental consent. However the ACLU, on the other side, said that the law did anything but. They argued that the teens seeking judicial bypass were subject to much less confidentiality than before under the law. The DA could call witnesses including anybody from a girl’s teacher to their boyfriend to the parents which refused to consent in the first place.

Ultimately, the actual legality of the law depended on whether the law was overly burdensome to the minors seeking an abortion. Under Roe v. Wade, a woman has a constitutional right to receive abortions. However, this is far from an absolute right under the current law. Just looking at the laundry list of restrictions on the practice in Alabama it’s obvious that there are some restrictions that can pass constitutional muster. The legal analysis for determining whether a restriction on access to abortion is constitutional was determined in 1992 in Planned Parenthood v. Casey. The Supreme Court held that a regulation is not constitutional when it creates a “substantial obstacle” to a woman receiving an abortion. This is not the most helpful of standards on its face, leaving a lot of room for interpretation. Fortunately, we’ve had some more clarification when it comes to parental consent rules.

To be acceptable, a parental consent law must include a judicial bypass which is effective, confidential, and expeditious. Useful, private and quick. Alabama’s law made their bypass none of these things. The judge in this case specifically noted that the many witnesses called ruined any potential chance of anonymity. The proceedings and appeals from the DA also made the hearings much longer than reasonable.

Under Supreme Court rulings, a judicial bypass must only consider whether a minor is mature and whether the abortion is in her best interest. Under Alabama’s act, the interests of the state, the parents, and even the fetus would have to be considered as well. This by itself would have been enough for the court to find Alabama’s law unconstitutional.

Tragic Circumstances Part of the Ruling

The law saw some seriously horrifying uses which certainly contributed to the judge’s ruling. The judge in this case noted one case in her ruling itself. Be warned before reading on that the circumstances of this case are incredibly disturbing. In the case cited by the judge, a 12-year-old girl was raped by a male relative-resulting in a pregnancy. The girl did not know her father and the rape occurred under the watch of her mother. In seeking judicial bypass to receive an abortion, she faced the full force of the DA’s office in opposing her access to the abortion. This led to an enormous amount of legal opposition to her motion that substantially delayed the proceedings. While the initial trial court granted her bypass, the DA even appealed this decision. While the minor ultimately won this appeal, the court noted how obstructive and intrusive this process was in reaching their decision.

There’s no doubt that the application and use of the law, acting as an enormous roadblock to vulnerable minors in terrible circumstances, was partially behind the ruling of the court and rightfully so. Abortion law is something that is highly vulnerable to change in the upcoming years, a more conservative Supreme Court could lead to limitations on a woman’s reproductive rights. However, as it stands, laws like Alabama’s are clearly unconstitutional. In fact, no court has ever found an adversarial process added to a judicial bypass constitutional. The judge here did the right thing, both under the law and in acting in the best interests of children in terrible circumstances.

When Should the Criminal Court Get Involved with Family Law?

Most family law cases make it from petition to marital settlement agreement without having to involve the police or a criminal prosecutor. However, there are cases when a partner is abusive, when the children are in danger, or when a partner makes false accusations that could have grave legal consequences. If you’re involved in such a case, when should you go to the prosecutor?

Family Court or Criminal Court

The biggest difference between family and criminal court is that the former is a civil court only. In other words, while it may have the power to referee and resolve disputes between different private parties, its power to punish criminal wrongdoing is extremely limited. The most available option is a sanction, or fine, for disrespectful behavior and potentially limited jail time for contempt of court. Successful contempt pleadings are rare though and sanctions don’t have an adverse effect if the party is extremely rich or extremely poor.

Criminal courts, on the other hand, are designed to find and punish criminal behavior. Police officers can take down statements and make arrests, prosecutors can initiate investigations, and defense lawyers can make constitutional arguments to protect against false accusations. In family court, it is common for parties make accusations and counter-accusations; in criminal court, the defendant will find that type of finger pointing to be unsuccessful.

by VicThe Right Time

So when is the right time to involve police, prosecutors, and criminal courts in a divorce or child custody matter?

In most circumstances, the right time is when the abuse begins. If a partner shoves you against a wall or throws an object at you, you should have the police make a report. If the situation is life-threatening, you should call 911. If you call 911, be sure to tell the dispatcher as much information as possible. These calls are always recorded by the police department, so even if the responding officer makes a mistake, the initial call will reveal any potential inconsistencies. If it’s not life-threatening, consult a family attorney about the best way to file a police report. If the abusive behavior continues, continue making police reports.

There are three important reasons to file a police report against an abuser. First, police reports are almost always admissible evidence in court, so there will be no problem getting the information in front of a judge. Second, in order to obtain a conviction for domestic violence or harassment (depending on your state and county), there usually has to be a pattern of abuse. Constantly making police reports establishes this pattern. Third, it prevents the abuser from filing the charges first. In many abuse cases, the abuser may attempt to accuse the victim first, so that the victim appears to be the abuser instead. Filing a police report first may prevent the abuser from muddying the situation too much.

If you have children and the abuser is your spouse, the dynamic changes. Many spouses are afraid to call the police on their spouse because they do not want their children to see the police arrest a parent of the children. If you believe your life or the life of your children is actually in danger though, seeing a parent arrested is preferable to seeing a parent being abused.

Tip Pooling: Department of Labor Reverses Stance on Controversial Practice

In the U.S., tips are an enormous part of how some people make a living. This is because tipping, and a practice of tip credits, is a common way employers can pay less than minimum wage to their employees. Tip pooling is a practice where an employer requires tipped employees to share those tips. Sometimes employers will even require that these tipped employees put their tips in a pool including the “back of the house”-employees such as cooks who don’t get tips. Tip pooling with employees that aren’t normally tipped was made illegal at a federal level back in 2011 after an Obama administration ruling. The ruling was primarily in response to a 9th Circuit ruling that allowed employers to implement a tipping pool including back-end employees if they did not take a tip credit-the credit which allows employers to pay a tipped employee less than minimum wage. The theory behind the DoL decision was that tips are essentially gifts to employees and become the property of that employee when given. While a tipping pool with all tipped employees isn’t a huge issue as they are all contributing, forcing employees to participate in a tipping pool with non-tipped employees is a bit like forcing them to give away part of their tips.

However, just last week Trump’s Department of Labor (DoL) issued a statement reversing this position on tip pooling. This move certainly allows more leeway to employers but has the potential to leave employees normally relying on tips seeing much less money. Once fully enacted, it could even allow an employer who pays their employees minimum wage and doesn’t take a tip credit to outright keep all tips customers give employees.

Tip PoolingThe rule change isn’t going to take effect immediately. While the DoL won’t be enforcing the tip pooling rule, it’s new rules on the practice are expected to take around a year to see light. In some states it won’t take effect at all due to state law (California and New York especially) or case law making the practice illegal regardless of the position of the federal government.

With tipping such a huge part of how some people make a living, as well as something which can leave a misinformed employer in hot water, it’s important to fully understand how our laws on tipping work. Let’s take a look at federal tipping laws so you can best know your rights and protect your business.

Tips on Tipping

Most federal law on tips is fairly well defined and easily explained. However, at a state level things can get a bit more complicated. As usual, the federal standard is a minimum standard that states can apply additional restrictions on top of. There’s too much there in state law to get into in a single article but the most common one to keep in mind is that minimum wage varies from state to state and even city to city, so where minimum wage comes up in the federal laws you can assume the state or city minimum wage where you live applies to this standard.

A tipped employee, those who would normally be easily added to a tip pool, must regularly make more than $30 a month in tips. Where this is the case, under federal law, an employer can pay these tipped employees as little as $2.13 an hour. However, this doesn’t override minimum wage laws. The tips a given employee is given are taken as a tip credit. This credit is put towards the minimum wage. If the wages an employer pays plus this tip credit leave an employee earning the equivalent or more than minimum wage, the employer is in the clear. If this is not the case, the employer is required to make up the difference. For instance, if an employee worked 10 hours at the federal minimum wage of $7.25 and was tipped ten times that wage ($72.50) then the employer would only have to pay that tipped employee a hourly rate of $2.13 because their tips create a tax credit easily surpassing federal minimum wage. Even if the employee only was given $51.20 in tips over those ten hours, the difference between the $2.13 per hour number and the federal minimum wage, the employer could still get away with paying only $2.13 per hour.

As of now, tips are the sole property of the tipped employee who was given the tip–no matter how much they add up to. It is illegal for an employer to require an employee to hand over any part of their tips or even to make an employment agreement with terms requiring that employee to give them some or all of their tips. The exception to this, at least now, is a valid tip pool-pooling tips and redistributing them equally among employees. However, the tip pool is not an exception to the tip credit rules. If the amount you take out of a tip pool leaves you below minimum wage when your hourly wages are added, your employer still needs to make up the difference.

There a few corner cases that change how these general rules work. First, if you work more than 20% of your hours in a workweek on non-tipped duties then an employer cannot take a tip credit for these hours. Instead, they need to pay at least minimum wage for all these non-tipped hours and the tip credit formula is only applied to your tipped hours.

When you tip with a credit card, an employer can take the percentage charged by the credit card company on each sale out of an employee’s tips. However, this reduced amount and not the full amount is what is used as a tip credit when calculating whether tips take an employee up to or over minimum wage. Also, compulsory charges (think required tips when you have a lot of people eating at once) don’t count towards tips received for a tip credit unless the amount is actually given to the employeee.

Finally, as of 1996, there’s a bit of a boon for the high school and college summer workers. If you are under 20 years old, the minimum wage if you work as a tipped employee is boosted to $4.25 per hour in the first 90 days after you start work. The tip credit still only requires employers to pay the minimum wage of where you live, but no matter what tips you earn you’ll always get at least $4.25 per hour.

Change Is Coming, But Not Here Yet

As mentioned above, the changes to tip pooling are not officially in effect yet. However, with the DoL not enforcing the tip pooling rules the only thing stopping employers is state law on the issue. If you make a large portion of your living from tips, you may see yourself being forced to tighten the belt a little bit in the coming days. New York has laws preventing tip pooling with non-tipped employees. California doesn’t allow employers to take a tip credit whatsoever-requiring full minimum wage on top of any tips earned. However, California does allow for tip pooling.

So the big elephant in the room came from the second paragraph of this article-will employers be able to take your tips outright if they don’t take a tax credit? In theory yes, but it’s far too soon to tell. Not only are the laws not finalized, there are enormous employee morale and publicity issues to think about. Even beyond that, the patchwork of state law and the uncertainty of the current DoL’s eventual position on the issue make any decision to take such action incredibly risky for an employer. So for now, it seems unlikely. However, Trump’s DoL has still dealt a blow to the tipped worker. You may still need to prepare yourself to see less out of your tips each month.