What is a “Person of Interest?”

May 26, 2017

The Washington Post and the New York Times reported last week that Donald Trump’s son-in-law, Jared Kushner, is a “person of interest” to the FBI in its investigation of “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump,” along with “any matters that arose or may arise directly from the investigation.” This includes false statements to investigators (18 USC 1001), obstruction of justice (18 USC 1503) and conspiracy to obstruct justice (18 USC 371).

Kushner is not a “person of interest” because it is a state law enforcement term that the FBI declines to use. The FBI says he is “under scrutiny,” which means he is a person of interest to the investigation, but not a “person of interest.” Confused? As a former criminal defense lawyer with 30 years experience defending people charged with felonies in state and federal courts, I can set you straight.

State law enforcement officials created the term to evade the Miranda rule and federal law enforcement officials declined to play that game.

A confession is powerful evidence of guilt, but only if it is voluntary. Coerced confessions are presumptively unreliable and inadmissible. The line between a voluntary and a coerced confession is indistinct and difficult to define.

To eliminate a well-documented state police practice of obtaining confessions from suspects during seemingly endless confrontational custodial interrogations, the SCOTUS created a new rule in Miranda v. Arizona, 384 US 436 (1966), that required police to warn suspects under arrest that they had a right to remain silent (Fifth Amendment) and a right to consult with counsel before answering any questions (Sixth Amendment). The rule further required police to obtain a voluntary acknowledgment and waiver of those constitutional rights from the suspect before commencing an interrogation. A statement obtained in violation of the rule is not admissible in court.

Many state law enforcement officials were furious about the Miranda rule and determined to come up with a work-around. They eventually decided to instruct police to avoid a situation that might be characterized as a “custodial interrogation” by doing the following:

  1. Refer to the suspect in official reports as a “person of interest” instead of as a suspect;
  2. Instead of placing the suspect under arrest, give him a cigarette and a cup of coffee while engaging him in a conversation that gradually turns into an interrogation, if he doesn’t confess;
  3. When cross-examined by defense counsel, insist that the POI was always free to go, until he confessed.

Jared Kushner is represented by Jamie Gorelick, a former Deputy Attorney General of the United States from 1994-97, during the Clinton administration. She has offered to make Kushner available to be interviewed, accompanied by counsel, of course. The interview will not be a custodial interrogation, so Miranda will not be implicated.

Federal prosecutors and the FBI use the following three categories to describe people they investigate:

  1. Target: a person (or persons) who is suspected of being a major participant in the crime as a boss, organizer or director of others;
  2. Subject: a person who is suspected of participating in the crime, but not as a director or major participant and is regarded as someone to potentially flip into cooperating with law enforcement to make the case against the target and testify against him before the grand jury and at the trial;
  3. Witness: a person who has information about the crime, but is not suspected of committing the crime (also called a fact witness).

Michael Flynn and Paul Manafort have been have been described as “subjects” of the investigation.

“Under scrutiny,” means that FBI investigators believe Kushner’s relationship to Trump (confidant and son-in-law) and his position as a Senior White House Advisor and gatekeeper to Trump (the “Trump Whisperer”) means that he has significant information relevant to their inquiry. The FBI has been following the money. The interview(s) will be wide ranging and include questions about documents. They will ask questions, despite knowing the answers, to determine if Kushner is telling the truth. If the investigators catch him in a lie, it’s a False Statement violation, a felony punishable by up to 5 years in prison pursuant to 18 USC 1001. A lie might also constitute obstruction of justice in violation of 18 USC 1503. If the FBI can prove that he acted with others to obstruct justice, he could be charged with conspiracy to obstruct justice in violation of 18 USC 371. Depending on the evidence the FBI uncovers, he might end up as a witness against the presumptive target of the investigation, the 45th president of the United States.

Finally, Trump’s new idea to set up a “War Room” at the White House, staffed by Kushner, Bannon and Corey Lewandowski, to fight back against leaks and the investigation sounds like a conspiracy to obstruct justice. Terrible idea from a universe far beyond stupid.


Abandon Ship Trumptanic is Sinking

May 11, 2017

Donald Trump fired FBI Director James Comey on Tuesday, the day after Sally Yates mortally wounded him, because he refused to end the Russia Gate investigation and pledge his loyalty to Donald Trump.

Donald Trump and his confidant, Attorney General Jeff Sessions, decided to conceal the reason for firing Comey by ordering Deputy Attorney General Rob Rosenstein to prepare a memo detailing mistakes Comey made in the run-up to the election. After receiving the memo, Trump and Sessions fired Comey and used the memo as the basis for firing him. Session’s participation in firing Comey for refusing to end the Russia Gate investigation was improper because he had recused himself from any role in the investigation.

Unable to resist the impulse to cover his tracks, Trump inserted the following exculpatory statement in his letter firing Comey,

While I greatly appreciate you informing me, on three separate occasions, that I am not under investigation, I nevertheless concur with the judgment of the Department of Justice that you are not able to effectively lead the Bureau.

This statement is likely false. Comey testified before Congress that the FBI is investigating the Trump Campaign for possible collusion in Russia’s interference in the 2016 election and Trump is a likely target of that investigation. As a matter of policy, the FBI and the Department of Justice do not notify targets and subjects of investigations that they have been cleared or no longer are under investigation. Like a criminal defendant’s alibi that can be proven false, Trump’s statement may convict him if he should be prosecuted in federal court for obstruction of justice.

Adding insult to injury, Trump met yesterday at the White House with Russian Foreign Minister Sergey Lavrov and Russian Ambassador Sergey Kislyak. The optics were terrible. Lavrov acted like the White House was his house. The U.S. Press was excluded from the meeting but Russian photographers were permitted to set up shop in the Oval Office and photograph the three men. Lavrov appeared to be the commanding influence.

Enough.

Republicans who continue to support Donald Trump are courting disaster. He’s going down. Continued support could result in indictments for obstruction of justice.


Trump lied when he accused Hillary Clinton of corruption

June 23, 2016

Trump based his accusation of corrupt behavior by the Clintons, regarding foreign financial contributions to the Clinton Foundation, on information in Clinton Cash, by Peter Schweiser. In Fact-checking the April 26 shows, ‘Clinton Cash’ published by PoliFact, Newt Gingrich made a similar claim. The authors wrote.

Robert Delahunty, a University of St. Thomas constitutional law professor who worked in the Justice Department’s Office of Legal Counsel from 1989 to 2003, also called Gingrich’s link between Clinton and the foreign governments’ gifts to the Clinton Foundation as “implausible.”

“The truth is that we establish corporate bodies like the Clinton Foundation because the law endows these entities with a separate and distinct legal personhood,” Delahunty said.


Trump University looks and quacks like a duck

May 29, 2016

I’ve reviewed a copy of the 2010 Trump University Playbook and it certainly looks like a scam to me. The principle objective identified in the 172-page playbook is to classify the attendees into 1 of 4 categories based on the amount of liquid assets they have at their disposal. The categories are set forth on page 36.

1. Greater than $35 K;
2. Between $20 K and $30 K;
3. Greater than $10 K; and
4. Greater than $2 K.

The target group is the 1st category, which they call the Gold Elite Group.

With one important exception, the rest of the playbook is a detailed how-to manual regarding procedures like scheduling conferences, setting up conference rooms and submitting bills seeking reimbursement for expenses.

The exception is a recommended set of strategies to employ in convincing people in the Gold Elite Group to signup for advanced conferences where the strictly hush-hush mystical goodies will be revealed to the worthy initiates.

Yes, indeed, you would be correct if you guessed that the advanced level conferences cost lots of money. From $1,500 to the super special $35,000 conference where Trump himself will disclose the mystical goodies.

Speaker subject matter is tightly controlled. For example, the playbook warns them to use only the approved course materials and illustrative slide shows when lecturing to the students. No variation is permitted and anecdotal stories are prohibited without prior approval. The absence of room to move suggests that no special expertise is required to give a lecture.

My suspicions deepened when I reviewed carefully scripted responses in the playbook to frequently asked questions. No variation from the scripted responses was permitted. If a student asked a question that was not on the list, the playbook recommended segues to steer the student to a scripted answer. I got the impression that a pleasant voice, a smiling face and an ability to read slides were the only prerequisites to be a speaker.

Guidelines are provided for dealing with disruptive students, reporters and inquisitive attorney generals.

Separating a student from his or her money appears to have been the prime directive.

If it looks like a duck and quacks like a duck . . .


Panama Papers: A Shot Heard Round The World

April 5, 2016

Standing on Shaky Ground

An anonymous person has leaked more than 11 million documents documenting how the rich and powerful hide their money in offshore tax havens. The documents were published Sunday by the International Consortium of Investigative Journalists (ICIJ), Süddeutsche Zeitung, the German newspaper, and several news organizations around the world, including the BBC, after a yearlong investigation. The actions described in the documents are not necessarily illegal, but some of the documents reveal a clandestine web of shell companies, their real owners concealed under layers of secrecy, and connections to firms in different tax havens. A coalition of more than 100 news organizations published a review of the documents yesterday. USA Today describes the treasure trove,

The cache exposes assets of everyone from political officials to billionaires to celebrities to sports stars that were previously undisclosed. The documents expose holdings of 12 current and former world leaders and details of the hidden financial dealings of 128 more politicians and public officials worldwide. Included: At least 33 people and companies blacklisted by the U.S. government because of links to wrongdoing, such as doing business with Mexican drug lords, terrorist groups or rogue nations such as North Korea and Iran. According to Sueddeutsche Zeitung, the Munich-based newspaper that obtained the trove of documents more than a year ago from an anonymous source tied to Mossack Fonseca [a law firm in Panama with 40 offices around the world], the “Panama Papers” include approximately 11.5 million documents — more than the combined total of the Wikileaks Cablegate, Offshore Leaks, Lux Leaks and Swiss Leaks.

The leak of documents shows how the rich and famous can exploit offshore tax shelters and reveals an unprecedented pattern of corruption worldwide for 40 years, including maneuvers by major banks who created the hard-to-trace companies. World leaders or associates who have embraced anti-corruption platforms are featured throughout. The papers also allege a billion-dollar money laundering ring run by a Russian bank tied to associates of Russian President Vladimir Putin.

Difficult at this point to determine who violated any laws. Tax avoidance is a lawful standard-operating procedure for the rich. Tax evasion, however, and money laundering are crimes. The use of multiple transactions by shell companies that consist of little more than a name and a P.O. box, together with nominee owners who conceal the real parties in interest is inherently suspicious. Mossack Fonseca, the Panama law firm, specializes in creating opaque financial transactions involving equally opaque offshore banks.

Sorting through it all is going to take some time.


Donald Trump does not comprehend macroeconomics

April 3, 2016

Donald Trump claims he can fix our trade deficit by renegotiating better deals with other countries, principally the Chinese. If he understood trade deficits, he would not say that. Trade surpluses or deficits are based on the net difference between exports and imports with a particular country. They are consumer driven. For example, we run a trade deficit with China, if consumers in our country buy more products made in China than consumers in China buy from us. Therefore, a trade deficit is based on a comparison of business or individual spending by two countries.

Trump does not know what he is talking about when he says he will pay for the $16 million wall that he wants to build along the Mexican border by raiding Mexico’s $58 million surplus in its balance of trade with us because that money has been paid to businesses in Mexico, not the Mexican government.

A government deficit is the difference between government spending, rather than business or individual spending, and government revenues. Our national debt (total of all debt since 1790) at the end of Fiscal Year 2016 is estimated to be $19.4 trillion. The amount is large, but so is our economy. There is no reason to freak out. Investors certainly aren’t freaking out or they would not invest in Treasury bonds. Here is a Wikipedia explanation using Modern Monetary Theory (MMT):

The government sector is considered to include the treasury and the central bank, whereas the non-government sector includes private individuals and firms (including the private banking system) and the external sector – that is, foreign buyers and sellers.

In any given time period, the government’s budget can be either in deficit or in surplus. A deficit occurs when the government spends more than it taxes; and a surplus occurs when a government taxes more than it spends. Sectoral balances analysis states that as a matter of accounting, it follows that government budget deficits add net financial assets to the private sector. This is because a budget deficit means that a government has deposited more money and bonds into private holdings than it has removed in taxes. A budget surplus means the opposite: in total, the government has removed more money and bonds from private holdings via taxes than it has put back in via spending.

Therefore, budget deficits, by definition, are equivalent to adding net financial assets to the private sector, whereas budget surpluses remove financial assets from the private sector.

This is represented by the identity:

(G-T) = (S-I) -NX

where NX is net exports.

The conclusion drawn from this is that private net saving is only possible if the government runs budget deficits; alternately, the private sector is forced to dissave when the government runs a budget surplus.

According to the sectoral balances framework, budget surpluses remove net savings; in a time of high effective demand, this may lead to a private sector reliance on credit to finance consumption patterns. Hence, continual budget deficits are necessary for a growing economy that wants to avoid deflation. Therefore, budget surpluses are required only when the economy has excessive aggregate demand, and is in danger of inflation.Because the government can issue its own currency at will, MMT maintains that the level of taxation relative to government spending (the government’s deficit spending or budget surplus) is in reality a policy tool that regulates inflation and unemployment, and not a means of funding the government’s activities per se.

Our government can afford and should pay a living wage to put people to work fixing our infrastructure. Every dollar spent will be respent 7 times dramatically increasing tax revenues. If we tax the rich, we can pay down the debt as desired.

There is no evidence-based reason to hit the panic button.

Donald Trump is an idiot willfully ignorant and stubborn.

He demonstrates his ignorance and idiotic ideas in this interview:

Transcript: Donald Trump interview with Bob Woodward and Robert Costa


Trump is unqualified to be president

March 31, 2016

Donald Trump is unqualified to be our next president because he acts like a thug, does not know how our system of government works and he lacks the proper temperament to govern in the best interests of everyone. Thuggery and poor temperament cannot be fixed because that is who he is. He admires those ‘qualities’ in himself and he is unlikely to change. While lack of knowledge can be fixed by learning, given sufficient time and commitment, he has not demonstrated that he realizes he is ignorant about anything. A president who respects no one except himself and who relies on intimidation to get what he wants is not suited to govern democratically in the best interests of the many as opposed to the few.

He has been conducting a war against people who protest at his public appearances by calling them bad people, ordering security personnel to evict them and offering to pay the legal fees of anyone who assaults them. He has invoked his right to freedom of speech to justify excluding and assaulting protesters. He mistakenly believes that the Freedom of Speech Clause in the First Amendment protects his right to speak to his supporters, but it does not protect people who disagree with him. He has it backwards. The Freedom of Speech Clause protects people who disagree with the government and the Freedom of Assembly Clause protects them when they assemble in a public place to express their dissent. Instead, he abuses the First Amendment to eliminate dissent rather than protect it. This is what dictators do. They criminalize dissent and govern from the top down by proclamation. People who disagree are imprisoned or killed.

Next, let’s take a look at the Corey Lewandowski case. He is Trump’s campaign director who was charged recently with battery for grabbing a reporter and pulling her away from Trump while she was questioning him. Wikipedia provides a summary of the incident.

On March 8, 2016, Michelle Fields, a reporter for Breitbart News, alleged she was yanked out of the way and bruised by Lewandowski while attempting to pose a question to candidate Donald Trump while he was exiting a room in the Trump National Golf Club in Jupiter, Florida following a press conference. Ben Terris of the Washington Post identified Lewandowski as the man who yanked her.[24][25][26] The Trump campaign denied the allegations, as did Lewandowski on his Twitter feed, wherein he denied ever having touched her.

On March 29, 2016, Lewandowski was charged with one count of simple battery by the Jupiter Police Department for the March 8 incident. A court date was set for May 4, 2016, after Lewandowski surrendered himself to the authorities. He released a statement maintaining his innocence. The Jupiter Police also released closed-circuit video of the incident taken by an overhead camera at the Trump National Golf Club resort.

Battery, which is defined as an ‘unpermitted touching,’ is a misdemeanor crime. The touching must be the result of an intentional act, as opposed to an unconscious, inadvertent, or accidental act. A video shows Fields suddenly being yanked backward and she has bruises on her arm caused by the person who grabbed her. Although we cannot see the hand and arm of the person who yanked her backward, Lewandowski was right behind her in a position where he could have grabbed her arm or, at a minimum, was in position to have seen who did. No one else appears to have been close enough to have grabbed her, however, and she has identified Lewandowski as the person who grabbed her. Ben Terris, a reporter for the Washington Post, has independently confirmed the identification. This evidence certainly is sufficient to establish probable cause (reasonable grounds) to believe that Lewandowski committed a battery.

At first Lewandowski denied that he touched Fields. Recently, however, he conceded that might have inadvertently touched her. He and Trump have denied knowing her. Curiously, both have accused her of being ‘crazy.’ Neither has explained how they would know that if they had no idea who she was. Trump attacked Fields yesterday for reporting such an ‘insignificant’ matter to the police and suggested that she should have been charged for harassing him. This is intolerable victim-shaming, a form of witness intimidation that potentially could be the subject of a new criminal charge.

This is not how we handle criminal cases in this country. A defendant who has been charged with a crime can admit or deny guilt. If he were to deny guilt, the matter would be scheduled for trial. He would be released and the case would be dismissed, if the jury finds him not guilty. The matter would proceed to sentencing if the jury finds him guilty.

Trump is trampling Lewandowski’s right to due process of law while putting the victim on trial. This stunt will likely backfire by alienating women voters, a result he can ill afford since 70% of women surveyed in a recent poll said they would not vote for Trump.

Trump aggravated the situation yesterday when he told MSNBC’s Chris Mathews that he believes women who have abortions should be sentenced to prison, if abortion were to be legalized. He changed his mind later in the day after he was criticized by Ted Cruz and John Kasich. He now agrees with them. If the SCOTUS were to overrule Roe v. Wade, they would punish the person who performed the abortion, but not the woman, whom they would regard as a victim.

In conclusion, We want a president who is knowledgeable about the issues of the day and not given to shooting from the hip. Electing Donald Trump would be a disaster.


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