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“Our country is now taking so steady a course as to show by what road it will pass to destruction, to wit: by consolidation of power first, and then corruption, its necessary consequence.”

— Thomas Jefferson

“History is a relentless master. It has no present, only the past rushing into the future. To try to hold fast is to be swept aside.”

— John F. Kennedy

“Information wants to be free.”

— generally attributed to Stewart Brand

Among the most compelling pieces of evidence that our federal government, and specifically the executive branch, is undergoing a historic crisis in its capacity to govern can be found in the recent actions of the FBI and its director, James Comey, in relation to the investigation of Hillary Clinton’s email server.

Whereas the FBI and its legendary “G-Men” have traditionally personified the steady confidence of American federal authority on domestic soil, as I’ve previously noted, this particular investigation culminated in the unprecedented and rather extraordinary public spectacle of Comey attempting to justify the FBI’s controversial no-prosecution recommendation by defending, in a televised 15-minute statement, what was ultimately Attorney General Loretta Lynch’s prerogative to exercise prosecutorial discretion.  Given that a substantial portion of Comey’s  apologia was devoted to delineating and excoriating Clinton’s “extremely careless” (but apparently non-indictable) conduct, one might reasonably have taken it to be as much an expression of frustration on Comey’s part as a legal justification for why Clinton should not be prosecuted.

Yet, subsequent to the investigation’s official close, a portrait of an even more defensive Comey has emerged, alongside evidence strongly suggesting the FBI’s own complicity in the Justice Department’s unabashed endeavor to shield Clinton from prosecution.  First, on September 7, there was the release of a memo by Comey to FBI employees further defending the investigation, while announcing the “unprecedented” production of the investigation files to Congress.  Comey took the opportunity to label the case against Clinton “not a cliff-hanger,” while explaining that “we [the FBI] don’t play games,” and calling his critics “full of baloney.”

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Then, as the files produced to Congress have come to public light, they have revealed facts showing the FBI to be not just reluctant or unwilling to initiate criminal proceedings against Clinton, but, indeed, affirmatively engaged in covering up criminal conduct.  While the FBI’s legal justification for non-prosecution depended on the supposed lack of evidence of willful or intentional misconduct (notwithstanding that the applicable statute requires the lesser mens rea of “gross negligence”), the files contain clear evidence of willful and intentional misconduct by Clinton’s inner circle.  For example, there is evidence that Clinton’s State Department chief of staff, Cheryl Mills, asked Clinton’s IT aide, Bryan Pagliano, about “wiping computer data.”  There is also evidence, gleaned through an examination of now-deleted posts on Reddit by members of the public, that another Clinton IT employee, Paul Combetta, was directed to destroy Clinton’s emails and portions thereof.  All three of these individuals (along with one other Clinton associate and a former State Department employee) were granted immunity from prosecution in the course of the investigation.  And in the latest Wikileaks publication of leaked emails from the files of Clinton’s campaign chairman, John Podesta, there are explicit discussions among Clinton advisers suggesting how to shirk compliance with Congress’s subpoena of her emails issued in connection with its Benghazi inquiry.

Taken together, these revelations present a compelling case that the FBI not only deliberately ignored evidence of criminal intent in the course of its investigation, but actively assisted the Justice Department in shielding Clinton’s associates from prosecution through grants of immunity.

As an item of American political history, this is no insignificant development.  That the Justice Department would be so compromised as to publicly and deliberately assist in shielding Clinton and her associates from prosecution would, at the very least, hearken back to Watergate, and, specifically, the activities of Richard Nixon’s Attorney General, John Mitchell, and FBI Director, L. Patrick Gray, in facilitating the cover-up.  But the extent of corruption today appears to be even greater given the circumstances of the immunity grants.  While immunity was extended during Watergate to two top Nixon officials, John W. Dean and Jeb Magruder, in exchange for providing testimony before the Senate Watergate Committee, it was their resulting testimony that ultimately forced Nixon’s resignation and enabled the successful prosecutions of numerous Nixon associates.  By contrast, no testimony resulted from the five grants of immunity in the Clinton investigation, and the investigation has been terminated with zero prosecutions.

If the corruption of America’s political institutions can be compared to a disease, the best analogy is HIV/AIDS: it is like an infection that has now directly undermined the government’s own “immune system,” i.e.,  the very structures designed to root out and eliminate public corruption itself.  This includes the Justice Department and its constituent parts, including the FBI.  And as with HIV/AIDS, the task of conquering the underlying syndrome is thereby rendered all the more difficult, given that corruption itself has significantly compromised the natural political pathways to fighting off corruption.

There is a ray of light in the fact that the American political system — which has often been heralded as ingenious, if unusual and cumbersome in many ways — may very well be just the type of governing structure equipped to generate a cure to a level of political corruption that would be capable of easily toppling most other governments . As one with an abiding optimism in the ability of the United States to right the ship, I cling to the hope that we can still peacefully transition from our Neo-Gilded Age to a New Progressive Era.

***

The problem of corruption is as old as political philosophy itself.  In Book VIII of The Republic, Plato describes it as a natural process of “decay,” bound to infect and ultimately destroy even the most perfect of polities, as natural human frailties spread to overwhelm governing institutions over time.  In Nicomachean Ethics and Politics, Aristotle analyzes and ranks the various types of political regimes based on the specific tendencies to corruption within each.  Oriented more pragmatically, and inspired by the French thinker Baron de Montesquieu, James Madison advocated for the dispersal of American federal power across several branches.  In 1788, writing in Federalist No. 51, Madison stated that the most effective bulwark against creeping corruption is a divided government where each branch is given “the necessary constitutional means, and personal motives, to resist encroachments of the others. . . .  Ambition must be made to counteract ambition.”  Hence, our vaunted doctrine of the “separation of powers” was born.

In conventional parlance, separation of powers has come to be identified with the federal government’s three branches — legislative, executive, and judicial — that check and balance each other to forestall any of them from abusing power.  At the same time, when one considers the American political system in its entirety, “separation of powers” exists in a more pervasive and deeper sense.

Perhaps the most prominent example of this “second-order” separation of power is the role of state governments in our federalist system.  The Constitution, through the Tenth Amendment, explicitly reserves all powers not explicitly otherwise delegated to the states. As a consequence, states have retained critical autonomy in areas such as the ability to regulate their own judicial systems as well as the power to regulate firearms within their jurisdiction.

The Constitution also explicitly delegates power to the states vis-à-vis the very functioning of the federalist system.  Article II, Section 1, for example, delegates to the states a vital role in the presidential election process, through the Electoral College. And Article V enables the states, by “the Application of the Legislatures of two thirds of the several States,” to require Congress to call a Constitutional Convention.

There is also a second-order separation of power at work in a “molecular” sense, i.e., within each of the three branches of government.  Thus, for example, Article III, Section 1 establishes the judicial branch — with the judicial power vested not just in “one supreme Court” but dispersed throughout “such inferior Courts as the Congress may from time to time ordain and establish.” Once established, the judges of the “inferior Courts,” like those of the Supreme Court, “shall hold their Offices during good Behavior” and their compensation “shall not be diminished during their Continuance in Office.”  In this way, the Constitution lays the groundwork for our system of Federal District Courts and Circuit Courts of Appeal, which while subject to the Supreme Court’s jurisdiction, are also independently possessed of their own judicial power and, through lifetime appointment of judges protected from downward salary adjustments, shielded against certain forms of undue influence from the Supreme Court and the other two branches.

Similarly, and somewhat less appreciated, the very same statute whereby Congress established the federal court system as authorized under Article, Section 1, also created the Office of the United States Attorney to be situated within each federal district.  Section 35 of the Judiciary Act of 1789 provides that,

“[T]here shall be appointed in each district a meet person learned in the law to act as attorney for the United States in such district, who shall be sworn or affirmed to the faithful execution of his office, whose duty it shall be to prosecute in such district all delinquents for crimes and offences, cognizable under the authority of the United States, and all civil actions in which the United States shall be concerned[.]”

Our nationwide system of federal prosecutors, as such, is another site of independent jurisdiction, that not only predates the Department of Justice (which was created in 1870), but locates the origin of its establishment in the Constitution.

***

The deep infusion of the separation of powers doctrine into our system of government ought to produce some confidence that it is capable of warding off even the extremely, perhaps unprecedentedly, virulent strain of corruption currently gripping it. So far, the most publicly visible manifestation of the doctrine in action lies in the activities of Congress. Through the Committee on Oversight and Government Reform and Judiciary Committee, the House of Representatives has taken testimony from those responsible for the Clinton investigation including James Comey and Loretta Lynch, pushed the FBI to release its internal files and notes, passed a resolution seeking to hold one of Clinton’s aides in contempt for dodging two congressional subpoenas, issued a formal request to the U.S. Attorney for the District of Columbia to pursue criminal charges against Clinton and her associates for obstruction of justice and destruction of evidence, detailed the case for charging Clinton with perjury, and called for an independent investigation of the special treatment afforded two key witnesses, Cheryl Mills and Heather Samuelson, in the course of the Clinton investigation.  Taken together, these activities might not only lay groundwork for criminal proceedings, but, ultimately, impeachment proceedings should Clinton accede to the presidency.  (A federal officer may be impeached, it should be noted, based on conduct occurring prior to assuming office).

The separation of powers has also presented in less discernible, albeit no less significant, ways.  For  instance, it has been reported (although not officially confirmed) that the U.S. Attorney for the Southern District of New York, Preet Bharara, is leading a joint investigation with the FBI into possible corruption charges against the Clinton Foundation.  One report indicated that Bharara’s office is in contact with witnesses willing to testify that as Secretary of State, Clinton “granted quid-pro-quo favors to foreign businessmen and foreign governments as well as to American corporations and wealthy individuals in exchange for huge cash contributions to the foundation.” While such illicit connections between the State Department and Clinton Foundation donors have been publicly documented for some time, the FBI, through Comey, has been notoriously tight-lipped about whether it is actively investigating these ties.

Investigative activity concerning the State Department, Clinton Foundation, and Clinton’s private server has also taken place within the judicial branch.  Indeed, it was a federal lawsuit filed in 2013 under the Freedom of Information Act (FOIA) by the private watchdog organization, Judicial Watch, that was the first attempt to probe  Clinton lieutenant Huma Abedin’s dual role at the State Department and Clinton Foundation.  And in 2015, after it was revealed through the congressional investigation into Benghazi that Clinton had used a personal email account for government business, multiple new FOIA actions were filed by various organizations, which have led to the ongoing public disclosure of her State Department emails.

***

While one can point to numerous examples of how our government’s defenses have “activated” in response to the specter of corruption within the executive branch, these defenses are themselves susceptible to erosion and/or debilitation. For example, the capacity of a congressional investigation to produce criminal charges is dependent on the executive branch’s cooperation; while Congress can formally request that charges be brought, the Department of Justice must ultimately act on the request. And while Article I of the Constitution specifically designates Congress as the site of impeachment proceedings, it vests the power to impeach in the House but the actual trial of impeachments in the Senate.  In a hyper-partisan political climate such as our own, therefore, the ability to successfully pursue an impeachment through to a judgment of removal and disqualification from office would, practically speaking, depend on one party controlling both houses of Congress.

Meanwhile, U.S. Attorneys are appointed by the President, upon the Senate’s confirmation, to four-year terms.  They are subject to removal by the President at any time, and for any reason.  This presents an obvious limitation on any U.S. Attorney’s ability to vigorously pursue a corruption investigation and/or prosecution against the executive branch.

Federal judges, by contrast, are appointed for life terms and, as such, are significantly more insulated from the influence of other branches or outside forces. At the same time, when it comes to criminal corruption prosecutions, courts cannot act alone — they must depend on the existence of ready and willing prosecutors. More concerning, however, the appointment of federal judges has recently become a site of hitherto unseen hyper-partisanship — exemplified most starkly by the present impasse between the President and Senate concerning the appointment of Merrick Garland to be Justice Antonin Scalia’s successor.  The stalemate has leveled a direct blow to the Supreme Court by depriving it of a Justice for over eight months and counting, directly interfering with its capacity to function.  Ultimately, the capacity of the judiciary  — which Alexander Hamilton famously referred to as the “weakest” branch — is appreciably limited by its own dependence on the other two branches and concomitant vulnerability to the spread of corruption therein.

***

As much as our separation of powers “defenses” can do to identify and, in some cases, thwart specific cases of corrupt practices in government, the inherent limitations on these defenses suggest there is only one true antidote: the democratic process.  The most direct route to removing leadership is for the citizenry to act through the ballot box. Yet, if there is one overarching observation drawn from this election season by a broad-based consensus, it may very well be the shocking frailty of the process in its practical ability to effect the will of the American people against the corrupt and entrenched interests of their leaders.

Both major party candidates, Donald Trump and Hillary Clinton, have consistently been viewed unfavorably by more than 50% of those polled — with Trump’s unfavorability rating reaching as high as 65% and Clinton’s as high as 56%.  As the alternative to entrenched corruption, the persona of a temperamentally unsound business mogul cuts an uninspiring jib, to say the least.  Trump’s recent campaign promise  to appoint a special prosecutor with respect to Clinton’s private email server offers perhaps the thinnest of reeds on which to cast the election as a plebiscitary referendum on levying criminal charges against her.  At the same time, Trump’s own prolific record of failing to deliver on his promises to the general public casts a long shadow on even this narrow band of hope.

Disillusion with the ostensible “choice” yielded by the democratic process is accompanied by disenchantment with the actual mechanics of the process. Substantial reports of election irregularities and statistical anomalies during the primaries; the government’s own pronounced concern with the vulnerability of the process to “hacking”; and the unprecedented illumination of the Democratic Party’s inner machinations by Wikileaks and other publishers of leaked internal documents have laid the groundwork for not only widespread distrust, but a plethora of legal challenges.  Indeed, Trump, perhaps shrewdly, has made suspicion of a “rigged” election the newest plank in his platform.

***

It seems almost natural to look back to history, as a lens to both clarify and aesthetically soften the contours of a murky and jagged future. While several presidential elections (e.g., Bush-Gore, Kennedy-Nixon) have been proffered as useful bases of comparison, the election of 1896 presents an intriguing, if underappreciated, vantage point. That year, the extraordinarily well-financed, pro-business Republican candidate, William McKinley, won an electoral landslide over a deeply divided Democratic Party and its nominee, the populist Nebraska attorney, William Jennings Bryan, who on a whistle-stop tour, railed to large crowds against the evils of banks and the gold standard. Many establishment Democrats denounced Bryan’s nomination; a number of them supported other candidates or ignored the presidential election altogether, and many traditionally Democratic newspapers refused to endorse Bryan.  The first lines of one of Bryan’s famous speeches, “An Indictment of Plutocracy,” are as poignant today as ever:

Plutocracy is abhorrent to a republic; it is more despotic than monarchy, more heartless than aristocracy, more selfish than bureaucracy. It preys upon the nation in time of peace and conspires against it in the hour of its calamity.

While McKinley’s success in executing an effective, modern campaign through his campaign manager, Mark Hanna, enabled him to defeat Bryan, the more enduring legacy of 1896 proved not to be in the resulting McKinley administration.  Rather, Bryan’s losing campaign manifested a larger movement in American politics that ultimately swept through the halls of power and re-charted the course of history as the Progressive Era. More than a little ironically, the Progressive Era’s leading presidential exemplar was Theodore Roosevelt, the brash and theatrical former governor of New York, whose signature accomplishments included imposing regulation on the nation’s giant corporate monopolies and prosecuting rampant corruption within the federal government. Roosevelt became president upon McKinley’s assassination in 1901.  He had been chosen as a surprise running mate for McKinley during the 1900 Republican National Convention in Philadelphia, when one of New York’s notorious party bosses backed his nomination as a means of ending Roosevelt’s anti-corruption governorship in New York.

While no doubt imploring a respect for and deference to the vicissitudes of history, the election of 1896  contains within it a truth that would only come to light through the historian’s pen. In mounting his losing campaign, Bryan succeeded in giving much of America’s economic underclass a booming voice in the political process which would come to shape the ebb and flow of our domestic politics right up through the New Deal.  It remains to be seen, of course, whether the election of 2016 will prove to be a “realigning election” in  the same vein as 1896.

But I already know it will embody a realigning for me personally.

For the first time in my life, I will not vote for the Democratic nominee for president. I will vote for Jill Stein on the Green Party ticket. With any important “realigning” in one’s life, there comes some degree of introspection in the moment.

***

Growing up in the vicinity of Albany, the political energy emanating from the Empire State Plaza was never that far. In eighth grade, some 25 years ago, I was transported on a weekly basis from my suburban middle school to the New York State Capitol, where did I an internship, of sorts, in the office of Assemblyman Angelo Del Toro, a Democrat representing the 72nd District in East Harlem. There, I performed such tasks as licking envelopes and stamps while getting to observe the political process, and its personalities, from inside the State Capitol’s walls. One such personality was the Assemblyman’s staff member and brother, Bill Del Toro.  As far as I could tell, Bill (who once sent me down to the street to fetch him a hot dog) spent most of the day reading the newspaper.

Little did I know that Bill was a convicted felon and the Del Toro brothers ran an extensive and long-running political corruption scheme encompassing skimming, tax avoidance, election fraud, and other blatant graft.

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At one end of my personal political transformation, I was an unwitting teenager permitted to leisurely roam the vast expanse of the State Capitol on school days. But the revelation of concealed truths has stripped those schoolboy memories of no small degree of innocence.

Wikileaks and other journalists, investigators and publishers — the Gutenbergs of our time — have detonated an entire constellation of hidden truths about our government before our eyes.  In so doing, they have seriously undermined a general mode of relation between the governed and those who govern that, since Machiavelli, has largely been accepted as irreducible. Some of us may be temporarily blinded by these newly revealed truths, but our collective transformation is inevitable. The realignment of our society  will be felt in the coming election and beyond, for many years.

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By Jared H. Beck, Esq.

Jared H. Beck has a B.A. from Harvard College, an M.A. in government from the Harvard Graduate School of Arts and Sciences, and a J.D. from Harvard Law School, where he was an editor of the Harvard Law Review.  In addition to serving as co-founders and co-directors of JamPAC, he and his wife, Elizabeth, own and operate a law firm, Beck & Lee, in Miami, which is one of the law firms representing the plaintiffs in a class action against the Democratic National Committee based on fraudulent conduct in the 2016 Democratic presidential nominating process.  Beck & Lee dedicated to the practice of civil litigation, including disputes relating to business, personal injury and real estate, as well as pursuing the rights and remedies of small businesses, consumers and investors through class actions. He is a member of the Florida and California Bars, and litigates in other U.S. jurisdictions in conjunction with qualified local counsel.  Beck can be reached at 305-234-2060 or jared@beckandlee.com.

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One month before FBI Director James Comey announced his recommendation not to indict Hillary Clinton based on her use of a private email server, I tried to assess the prospect of indictment based on analysis of the known facts and applicable statutory provisions.  I concluded that because the facts and law presented clear probable cause she had violated subsection 793(f) of the Espionage Act, any colorable argument not to indict would depend on the exercise of prosecutorial discretion.

The text of Comey’s recommendation — as well as his testimony on Capitol Hill two days later — fully accords with my analysis and conclusion.

[Please scroll past Comey’s written and videotaped statement below for continuation of this article]

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Comey stated that the FBI found “evidence of potential violations of the statutes regarding the handling of classified information,” and that Clinton and her agents were “extremely careless in their handling of very sensitive, highly classified information.”  A finding of extreme carelessness would seem well sufficient to establish “gross negligence,” which is the applicable mens rea under subsection 793(f), and which Black’s Law Dictionary defines as a “lack of slight diligence or care.”  But despite finding sufficient reason to believe that Clinton had violated a criminal statute — which is really another way of saying there is probable cause to indict — Comey recommended no indictment based on a weighing of “factors” outside the probable cause determination.  Two days later, in his testimony before the House Oversight & Government Reform Committee, Comey confirmed his recommendation to be grounded in an exercise of prosecutorial discretion as a “judgment call” based on the “entire circumstances.”

In other words, as my own analysis had suggested it might, prosecutorial discretion proved to be the prevailing argument in favor of not prosecuting Clinton.

But while the FBI recommendation’s substance was foreseeable, there were a number of radically unorthodox features to what Comey called his “unusual statement.”   Before one can appreciate the full legal and political significance of his recommendation, one must attempt to understand these irregularities.

 A Non-Prosecutor Urges Prosecutorial Discretion

To my knowledge, no one has remarked how strange it is that the head of the nation’s chief federal law enforcement agency, i.e., FBI Director Comey — rather than the chief prosecutor, Attorney General Loretta Lynch — performed the analysis of whether to exercise prosecutorial discretion with respect to Clinton.   From a legal perspective, this is highly atypical given that by its very nature, prosecutorial discretion is held by the prosecutorial authority and not a law enforcement agent.  When someone is arrested for a crime, we do not expect police officers to make the final decision on whether or not charges are brought — rather, the role of an investigative agency such as the FBI is to gather evidence and pass it on to the prosecutor, who then makes the legal decision on whether to institute criminal proceedings.

In this case, Comey’s recommendation was preceded by Lynch’s announcement, in Aspen on July 1, that she would follow the recommendation of the FBI and career prosecutors in the Justice Department in an effort to avoid the appearance of bias.  The context of Lynch’s announcement underscored its message, as it came in the wake of a controversial “chance” encounter between her and Bill Clinton at the Phoenix airport. Lynch’s announcement, and the concern with averting the air of impropriety, have been used to explain how Comey could unabashedly appear to “preempt” the Attorney General’s prosecutorial discretion.  Viewed through this lens, Comey assumed the mantle of prosecutorial discretion — which he then deployed to decide not to indict Clinton — by necessity, because he was delegated, from Lynch, the entire decision on whether or not to indict.

But this explanation presents an incomplete picture.  For one, there was no indication that Lynch ever intended to delegate prosecutorial discretion to Comey — in fact, her Colorado remarks may just as readily be interpreted to mean she was binding herself to not exercising any type of discretion, and would simply follow the FBI’s recommendation on whether a crime had been committed and the recommendation of her subordinate prosecutors in the Justice Department on whether to indict.  Indeed, in responding to Lynch’s remarks in Colorado, the Justice Department’s spokeswoman emphasized that Lynch would be deferring to her staff and career prosecutors, not just the FBI.  And the New York Times reported the names of an assistant attorney general and deputy attorney general who would review the recommendation prior to its implementation by Lynch.

The involvement of Justice Department attorneys in the decision-making process is absent from the prevailing media narrative following on the heels of Comey’s recommendation.  This is no doubt fostered by Comey’s prefatory comments noting one of the “unusual” characters of his statement: “I have not coordinated or reviewed this statement in any way with the Department of Justice or any other part of the government. They do not know what I am about to say.”

Here, Comey is making it explicit that the Department of Justice, including Lynch and her subordinate prosecutors, had no foreknowledge of his recommendation.  While elsewhere he suggests the recommendation is based on “productive conversations”  with prosecutors, Comey is rather unambiguous that his recommendation contains no direct input from them.  Thus, the recommendation reads as if Comey has actively seized for himself the mantle of prosecutorial discretion from the Justice Department — a power that is not only clearly outside of the FBI’s authority, but was never delegated to Comey to begin with.

Whereas the role of prosecutors is practically eviscerated from Comey’s recommendation, they make a fleeting re-appearance in Lynch’s terse statement closing the case the day after Comey’s announcement.  According to Lynch, she accepted the “unanimous recommendation” of “FBI Director James Comey and career prosecutors and agents.”  Notably, there is no reference to such a “unanimous recommendation” in Comey’s statement — rather, Comey makes it clear that the statement does not reflect their concurrence but is instead a recommendation communicated to the prosecutors themselves.  Furthermore, between the time of Comey’s statement and Lynch’s statement, there was never a public declaration concerning the content of any recommendation from Lynch’s subordinate prosecutors.

The Nation’s Chief Lawman Denounces Clinton’s Conduct

Aside from its apparent usurpation of prosecutorial discretion, Comey’s recommendation is extraordinary for its public character and harsh criticism of Clinton’s conduct.  The fact that the FBI director would offer a 15-minute statement detailing the investigation and justifying his “no indictment” recommendation to the public is remarkable in and of itself.  Again, Comey acknowledges this very fact in his introductory comments, telling us that while it is “unusual,” “I am going to include more detail about our process than I ordinarily would, because I think the American people deserve those details in a case of intense public interest.”

Critically, the “detail” that Comey supplies goes far beyond simply relating the content of the recommendation not to indict Clinton.  Instead, Comey methodically proceeds to describe a number of facts uncovered by the investigation that unambiguously portray Clinton in a bad light — indeed, in a much worse light than had Comey simply announced that Clinton and her staff were “extremely careless” in handling classified information but that she would not be indicted for this conduct.  Specifically, Comey notes that: (1) Clinton used several different servers and mobile devices as Secretary of State; (2) 113 of her emails contained classified information at the time they were sent or received, including eight email chains with “Top Secret” information; (3) Clinton’s attorneys conducted an incomplete review of her emails before turning them over to the FBI, and permanently destroyed those emails they did not turn over.  Other emails are permanently lost because Clinton deleted them and the private servers did not archive them; (4) Clinton’s multiple private servers were not supported by full-time security staff; (5) government officials in Clinton’s position have an obligation to protect emails as classified, whether or not they are marked as “classified” at the time; (6) it was possible that hostile actors gained access to Clinton’s private email account; and (7) Clinton’s conduct would ordinarily incur security or administrative sanctions.  In a nutshell, Comey systematically dismantles Clinton’s public defense of her email imbroglio and shows her to have made several false statements.

A Patently Ridiculous Defense

But Comey doesn’t stop at setting forth a meticulous and direct refutation of Clinton’s credibility in the course of constructing a detailed assessment of how her handling of classified information was “extremely careless.”  Rather, upon carefully articulating each prong of his assessment and refutation, Comey presents a legal justification for why Clinton should not face criminal charges for any of her transgressions.  This coda to Comey’s already singular presentation could be its most bizarre feature insofar as it constitutes a justification for the use of prosecutorial discretion that makes no sense at all.

Aside from the fact that, as discussed, Comey is hardly the proper official to be addressing prosecutorial discretion (the missing-in-action “career prosecutors” are), Comey presents a litany of four “factors,” the supposed absence of which, according to Comey, militates in favor of not prosecuting Clinton:

“[1] clearly intentional and willful mishandling of classified information; [2] or vast quantities of materials exposed in such a way as to support an inference of intentional misconduct; [3] or indications of disloyalty to the United States; [4] or efforts to obstruct justice.”

According to Comey, one or more of these factors were present in all previous FBI investigations into “mishandling or removal of classified information” that resulted in prosecution.  As such, the absence of these factors means that “no reasonable prosecutor” would prosecute Clinton.  But there are myriad glaring problems with Comey’s prosecutorial discretion defense.  In a long essay, one former criminal defense attorney and Harvard Law graduate elucidates why Comey’s testimony explaining his recommendation was “the worst education in criminal justice the American public has ever had,” detailing several ways in which his proffered reasoning clashes with fundamental legal principles.  Isolating all of the flaws in Comey’s analysis would be an involved venture on its own, but the following are the most glaring:

Demanding evidence of willful or intentional conduct, when the statute expressly incorporates the lesser mens rea of gross negligence.   By stating that “no reasonable prosecutor” would prosecute a crime requiring gross negligence unless there was evidence of intentional misconduct, Comey is asserting that any prohibition of grossly negligent conduct is inherently unreasonable.  This is simply not an accurate or even colorable view of the law, which has long recognized gross negligence as a viable criminal state of mind.  Perhaps the most familiar example is the crime of voluntary manslaughter, where the applicable mens rea is defined under federal law as “without due care or circumspection.”  While arguing that our system ought not to prosecute criminal negligence may be a worthy academic exercise, prosecutors must take the system how it is, and not how they wish it to be.
Completely ignoring a 2015 DOJ prosecution of a Naval reservist along with several examples of successful prosecutions based solely on grossly negligent handling of classified information within the military justice system (My previous article lists the military cases, which are taken in turn from a 2000 Washington Post article).  It is not immediately obvious — and Comey never supplies an explanation — why military prosecutions would not be relevant to the calculus.  Given that the Uniform Code of Military Justice is itself a creature of federal law, one would think that the military justice system’s approach to a federal criminal statute would be instructive.
Applying — and then purporting to satisfy — a ridiculous standard for whether prosecutorial discretion should be exercised, i.e., “no reasonable prosecutor would bring such a case.”  As far as I can tell, prosecutorial discretion is just like any other form of legal discretion — reasonable minds may differ as to whether its exercise is appropriate in any one case, but that is quite alright.  Indeed, the standard employed by Comey resembles that used to adjudicate matters on a motion for judgment as a matter of law/directed verdict, which must be granted when the appropriate showing is made, i.e., the court has no discretion.  In any event, the very use of this standard (which Comey appears to have plucked from thin air) undermines his defense of prosecutorial discretion because it is so easy to refute.  All it takes is for one “reasonable prosecutor” to emerge and declare he or she would have prosecuted Clinton — and some former prosecutors have already done just that.

*******

Instead Of Indictment, A Plea — On Behalf Of A Legal System Confronted With A Politician “Too Big To Fail”

So what would possess Comey to very publicly purport to seize and then exercise a power he never possessed (prosecutorial disctretion), and then supply a patently ridiculous and easily assailable legal justification for doing so? In answering this question, I credit as fact that Comey is a savvy and experienced high-level federal official and an accomplished attorney in his own right, likely being advised by other experienced, high-level counsel.

My belief is that Comey did so because he was already aware that the Attorney General’s office — the proper owner of prosecutorial discretion — intended to exercise its discretion to not indict Clinton, regardless of what the FBI’s investigation found or advised.  Comey knew all of this because, as he states, in the course of any investigation the FBI has frequent “productive conversations” with the prosecutors.  Moreover, based on these conversations, Comey likely also knew an announcement from the DOJ was imminent — perhaps explaining the sudden and odd timing of Comey’s press conference on the morning after a long 4th of July weekend.

I also believe Comey knew the real basis for the Department of Justice’s use of prosecutorial discretion — and it has nothing to do with the factors laid out in Comey’s statement or testimony.  Rather, the real basis is substantially the same as what led the Department of Justice not to prosecute Clinton after the Whitewater investigation: namely, her status as a prominent political figure.  Indeed, as the Democratic Party’s presumptive nominee for President, former Secretary of State, former Senator, and multimillionaire, she is even considerably more prominent now than she was at the time of Whitewater.

And I think Comey vehemently disagreed with the use of prosecutorial discretion to clear Clinton after his FBI investigation.  Thus, when Comey received word that the Department of Justice was about to make its decision, he struck first — presenting his own conclusive recommendation as an opportunity to skewer Clinton’s conduct and credibility, while setting forth a patently ridiculous legal defense of a prosecutorial discretion he did not believe should be exercised, but had no power to control.  This move permitted Comey to take the maximum shot at Clinton, while preserving the appearance of unity between the FBI and Attorney General regarding the investigation’s outcome.  While Harvard Law School professor Jack Goldsmith (a former colleague of Comey when they both worked in the Justice Department) takes stock of Comey’s move as a show of FBI independence to preserve the agency’s reputation in the face of swirling public doubts about the integrity of the Clinton investigation, he fails to appreciate the boldness of Comey’s public usurpation of prosecutorial discretion within the context of a hyper-partisan political climate.  Given this context,  any concern over the FBI’s historical legacy would be expected to defer to shrewd political maneuvering, of which Comey certainly seems more than capable.

Viewed in this light, Comey’s recommendation of non-indictment was itself a metaphorical indictment of Clinton’s conduct, coupled with a rebellious rejection of the Obama administration’s alliance (through the Justice Department) with Clinton and its affirmation of her extreme carelessness. On this account, Comey’s statement may also be read as a searing metaphorical indictment  of the present state of the American legal system: namely, that it too weak vis-a-vis Clinton to prosecute her– too comparatively weak because Clinton is “too big to fail.”  Taken literally, Comey is correct: no reasonable prosecutor, given the current government and political climate, would dare indict Hillary Clinton.   Comey’s hapless position is somewhat reminiscent of that of Archibald Cox during a previous extraordinary moment in American presidential politics, the Saturday Night Massacre, when Cox was terminated by President Richard Nixon’s Justice Department from independently prosecuting the Watergate investigation.  Upon receiving word of his firing, Cox issued this statement:

“Whether we shall continue to be a Government of laws and not of men is now for Congress and ultimately the American people.”

With his recommendation not to indict Clinton, Comey seized the legal inquiry regarding Clinton’s conduct and thrust it firmly into the political sphere.  His statement and testimony are now foundation blocks for a narrative portraying Clinton as too careless to run the country, not to be trusted to properly handle matters of the utmost importance.  Given that significant foreign policy experience is one of her prime selling points, this narrative could have real bite.  By the same token, Comey’s deliberate refutation of Clinton’s public defense of her email conduct risks further drowning her credibility with voters, as much as 69% of whom, according to recent polling, are already concerned she is untrustworthy.  Aside from serving as a potential flashpoint in the presidential campaign rhetoric, Comey’s recommendation has already spawned Congressional action, including a hearing called by the House Committee on Oversight and Government Reform, at which the Chairman suggested he would be referring Clinton for a new FBI investigation, this time for allegedly lying to Congress regarding her email practices.

In a functional democracy, turning the legal question of Clinton’s conduct into a political one might well be wise, affording the voters a genuine referendum on whether her conduct should disqualify her from acceding to the nation’s highest office. But by many accounts, our political system is ailing due to money and its influence.  On the Democratic Party side of the equation, the process has all but vanquished Bernie Sanders with his litany of progressive policies alongside an appeal to transform the political system itself.  Meanwhile, the Republican Party has undergone a full-scale implosion, resulting in the party’s nomination of Donald Trump.  Having made frequent comments showing intense animus based on gender, ethnicity, and religion, Trump would seem to be the very embodiment of willful malice. Thus, for the American voters to reject excessive carelessness as a mode of governance, they must all but endorse evil intent.

Sadly though, excessive carelessness would seem to be at the root of many, if not all, of the salient ills afflicting American society in recent times.  Careless gun policy has helped create police and mass shooting epidemics.  Reckless foreign policy has led to unnecessary wars and exacerbated terrorism domestically and abroad.  Careless healthcare and education policy has increased inequality and stoked social friction.  Careless environmental policy has placed our globe in imminent jeopardy.  And the list goes on.  To be sure, in the same way that a reckless driver of an 18-wheeler can cause an accident harming or killing far more people than a lone armed robber may shoot, the lower order mens rea does not necessarily entail a lower order social problem.

Before Comey issued his recommendation, I concluded that indictment or no indictment, Clinton was already a victim of her own mistakes, but it remained to be seen whether the country will join her as a victim.  Now that she has all but locked up the Democratic nomination, it seems clearer that we are all now tied to her fate, willingly or unwillingly. Now it remains to be seen what consequences we will all face, and how we will face them.

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By Jared H. Beck, Esq.

Jared H. Beck has a B.A. from Harvard College, an M.A. in government from the Harvard Graduate School of Arts and Sciences, and a J.D. from Harvard Law School, where he was an editor of the Harvard Law Review.  In addition to serving as co-founders and co-directors of JamPAC, he and his wife, Elizabeth, own and operate a law firm, Beck & Lee, in Miami.  Beck & Lee dedicated to the practice of business, personal injury and real estate litigation, as well as pursuing the rights and remedies of small businesses, consumers and investors through class actions. He is a member of the Florida and California Bars, and litigates in other U.S. jurisdictions in conjunction with qualified local counsel.  Beck can be reached at 305-234-2060 or jared@beckandlee.com.

 

 

 

 

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A simple Google search turns up numerous articles on the pending FBI investigation into Hillary Clinton’s private email account and server. Reflecting an election season marked by harsh and exaggerated rhetoric, they typically swing between forceful speculation that an indictment is a foregone conclusion to strident argument that the whole affair is a trumped-up red herring.  As has become par for the course on the modern American political scene, it is exceedingly difficult to distill reasoned analysis of the issue from impurities wrought by fiery electoral passions.

In truth, the whole affair exists in a drab world of black and white and gray — the world of legal analysis populated by statutes, cases, reports, memoranda, and evidence.  If the FBI is taking the investigation seriously (and we have every indication that it is), then it will make its recommendation based on a careful consideration of the facts and law.  It stands to reason, then, that one ought to attempt to undertake a careful consideration in order to assess the probability of whether the investigation will culminate in a recommendation to indict.

I will try my hand at such an analysis here.  Before proceeding, I wish to make it clear that (1) I am not a criminal lawyer; and (2) I am not an expert in national security law.  I am, however, a practicing civil litigator with over a decade of experience analyzing legal fact patterns covering a range of circumstances and statutes.  I consider legal analysis to be a professional skill that becomes more refined with experience.  And the better one becomes at legal analysis, the more accurately one is able to predict legal outcomes.

Also, I am an avowed Bernie Sanders supporter, and I help run a Super PAC that is endorsing Sanders.  In assessing my analysis, these facts should also be noted, as it would seem Sanders has much to gain politically should an indictment be probable. That said, I will do my best to minimize the extent to which my political affiliation colors my reasoning.  In other words, I will treat this exercise as if I were seeking to give sound and sober legal advice to a valued friend.  I suspect most agree that a good attorney would be doing his or her friend a disservice by giving anything other than unvarnished, objective legal advice.

By the same token, I would be doing Sanders and his supporters no favors by propagating a falsely inflated assessment of the likelihood of indictment.  I personally believe that the advisability of Sanders remaining in the race through the Democratic National Convention is directly proportional to the probability that Hillary Clinton will be indicted. Sanders’ only path at winning the nomination entails convincing a large chunk of the 712 Super Delegates to vote for him.  Because 547 of the Super Delegates have already pledged support to Clinton, Sanders will have to make a compelling argument to them in order to gain their votes.  Perhaps the most compelling argument potentially available to Sanders is the argument that he should be nominated in order to avoid nominating a candidate under federal indictment.

Thus, if I provide a falsely inflated prediction that Clinton will be indicted, then I will risk creating falsely high expectations among Sanders supporters that their candidate has a compelling case to make to the Super Delegates at the Convention.  This will exaggerate the current disharmony between Clinton supporters and Sanders supporters, making it less likely that the Democratic Party would be able to unify around Clinton should she win the nomination.  In such an event, I will have helped make it more likely that Trump will win in November.  This would horrify me no end because I, like Bernie Sanders, believe that on her worst day, Clinton is “100 times better” than Trump.

As such, my own personal stakes in providing an objective and accurate analysis are quite high.  I would be extremely horrified to know I had contributed in any way to the election of a President Trump in 2016.

Before getting to the analysis itself, let me offer a few words about why the issue is important.  I was shocked by recent polls showing that as many as 71% of Democratic voters believe Clinton should keep running even if indicted.  It seems practically self-evident to me that having its presidential nominee under indictment would be an utter travesty for the Democratic Party.  That said, assuming it is indeed true that at least some of my fellow Democrats must be persuaded that such a scenario would be terrible, allow me to offer this:  Let us assume that Clinton, while under indictment, is still able to muster enough political acumen to defeat Donald Trump in the general election.  (I do not believe this an obvious assumption at all, but let’s just assume to simplify the argument). Now picture the galactically hideous spectacle of a Republican led-House of Representatives voting to adopt articles of impeachment against Hillary Clinton just as soon as she is inaugurated into office.  (If you don’t believe a federal officer may be impeached based on his or her conduct prior to taking office, please review the impeachments of Judge Robert W. Archibald and Judge G. Thomas Porteous).

****

According to most reports, as far as the FBI investigation is concerned, there are only two statutory provisions in play: (1) 18 U.S.C. s. 1924; and (2) 18 U.S.C. s. 793(f).  In the interest of brevity (as well as maintaining a presumption in favor of Clinton), I will focus only on the latter.

The pertinent text of 18 U.S.C. s. 793(f), a sub-provision of the section entitled “Gathering, transmitting or losing defense information,” reads:

“(f) Whoever, being entrusted with or having lawful possession or control of any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, note, or information, relating to the national defense, (1) through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed, . . .

Shall be fined under this title or imprisoned not more than ten years, or both.”

My first observation is that the statute has a broad scope.  Notably, it pertains to documents (and the like) “relating to the national defense,” thereby eliding the entire debate over whether any of Clinton’s emails were classified at the time she sent or received them.  As it turns out, the decision to focus solely on s. 793(f) allows us to disregard an entire line of defense arguing that Clinton should not be indicted due to uncertainties regarding the classified status of her emails.

My second observation is that from the prosecution’s point of view, the statute requires a relatively low class of mens rea: “through gross negligence” as opposed to “knowingly” or “purposefully.”  While it has been suggested that “gross negligence” is a “nebulous” term, the two definitions offered by my copy of Black’s Law Dictionary appear rather straightforward: (1) “A lack of slight diligence or care”; or (2) “A conscious, voluntary act or omission in reckless disregard of a legal duty and of the consequences to another party, who may typically recover exemplary damages.”

Lining up the known facts with the relevant statutory language is straightforward as well. Hillary Clinton’s emails, during her tenure as Secretary of State, are undeniably documents related to “the national defense.”  There are thus two key questions to answer: (1) when Clinton used a private email account based on a private server in her home to send and receive emails, were her emails thereby “removed from [their] proper place of custody”; and (2) if so, did this occur through Clinton’s “gross negligence”?  If there is probable cause to answer “yes” to both questions, then an indictment is warranted.

So what are the facts?  The best source to date is the Report released on May 25 by the State Department Office of Inspector General.

View this document on Scribd

The Report states:

“Secretary Clinton employed a personal email system to conduct business during her tenure in the United States Senate and her 2008 Presidential campaign.  She continued to use personal email throughout her term as Secretary, relying on an account maintained on a private server, predominantly through mobile devices.  Throughout Secretary Clinton’s tenure, the server was located in her New York residence.”

The Report also indicates there is “no evidence that the Secretary requested or obtained guidance or approval to conduct official business via a personal email account on her private server.”  It states that Secretary Clinton was under an obligation to “discuss using her personal email account to conduct official businesses with” the Chief Information Officer of the State Department as well as the Assistant Secretary for Diplomatic Security.  The Report also states that had Clinton sought the required approval, it would have been denied due existing State Department guidelines protecting against security risks.

As far as Question No. 1 goes (Were Clinton’s emails removed from their proper of custody?), there is clear probable cause to answer “yes.”  When Clinton’s emails were stored on an unapproved private email server in her home, they were removed from their proper place of custody per the guidelines and obligations governing Clinton as Secretary of State.

That leaves Question No. 2: Did the removal of Clinton’s emails occur because of her gross negligence? For this question, the Report has several relevant findings. According to Clinton’s Chief of Staff, there was never a consultation regarding her use of a private email account and server.  That means no lawyers (including private counsel and the State Department’s general counsel) — or anyone else, for that matter —  were consulted regarding the appropriateness of Clinton’s email system.  The Report also notes that Clinton’s Deputy Chief of Staff expressly rejected a proposal from other State Department officers to furnish Clinton with a State Department Blackberry and email address.

The Report’s findings suggest clear probable cause that Clinton acted with gross negligence.  It seems that, at a minimum, Clinton and her staff ought to have consulted with someone — perhaps not necessarily a lawyer,  but someone — before using the private email and server, and prior to rejecting the proposal, from other State Department officers, to receive a State Department Blackberry and email address.  The failure to do so embodies a lack of even slight diligence or care on Clinton’s part.  The situation might be different if Clinton had consulted someone and received bad advice — then it could be readily established that the removal of Clinton’s emails from their proper place of custody was due to ordinary, not gross, negligence.  But to fail to seek any guidance on the issue would seem to fit the very definition of gross negligence.

While the statutory language and known facts seem to present a rather clear-cut case to indict, this should not be the end of the analysis.  Thorough consideration of any legal question also requires an examination of what relevant case law there happens to be.

According to my own research, there is not much.  References to 18 U.S.C. s. 793(f) in reported decisions are few and far between.  I did find some items of note, however.  First, in a 1992 opinion (U.S. v. McGuinness, 35 M.J. 149), the U.S. Court of Military Justice expressly stated that the statute does not require the defendant to have acted with an intention to harm the United States or to benefit a foreign nation.  Besides supporting the use of a standard, dictionary meaning of “gross negligence,” this holding eviscerates the oft-heard argument that Clinton should not be indicted on the basis of lack of “intent” or “motive.”

Also worthy of attention are the circumstances of reported successful prosecutions under s. 793(f).  These include:

 

the prosecution of an Air Force sergeant for accidentally taking two “top-secret” messages with him on a trip to Alaska in 1979, putting them in a drawer for safekeeping and then forgetting about them.  He was sentenced to a bad-conduct discharge and five months in prison;


the prosecution of another Air Force sergeant in 1983 for throwing classified material into a dumpster outside his home instead of destroying it at work.  He pleaded guilty, although I was unable to find the nature of his punishment;


the prosecution of a Navy seaman in 1989 for stuffing a classified document into his pants and and walking out of the building.  He was sentenced to four years in prison and dishonorably discharged.


the prosecution of a Marine sergeant for inadvertently packing classified documents into his gym bag in 1989 while cleaning out his desk in preparation for a job transfer. He was sentenced to 10 months in prison, dishonorably discharged, and had to forfeit $14,400 in pay.

 

While these cases would seem to share little in common with the situation presented by Clinton’s email account and server, they all feature the careless handling of sensitive documents by relatively low-level military personnel.  None of them alter my conclusion that the text of the statute and known facts present a clear-cut case for indicting Clinton.

Of course, even if an indictment can be brought under the facts and law, it  doesn’t mean that it will or should be.  The essence of prosecutorial discretion, as the concept has developed under American law, is that prosecutors possess practically unbridled discretion to decide whether or not to bring criminal charges, and what charges to bring, in cases where probable cause exists.  In any given case, charges may be warranted under the facts and the law, but other factors may weigh against actually bringing them — and the final decision rests with the prosecutor and the prosecutor alone.

Accordingly, the best arguments against indicting Clinton are really appeals to the exercise of prosecutorial discretion and not based on strict legal analysis of the statutes and known facts.  Thus, when we hear arguments based on the assessment that Clinton’s conduct posed no danger to national security, they are best understood as a defense rooted in prosecutorial discretion, given that actual danger to national security is not an element of the crime.  Similarly, when Clinton’s apology for her “mistake” in using a private email server is cited as a reason not to bring charges, this too is a call to apply prosecutorial discretion as an exercise of mercy or forgiveness.

But if Clinton’s best (and possibly only colorable) argument depends on prosecutorial discretion, then she might find herself in an intractable double bind.  On the one hand, if she is indicted, then her candidacy will be severely damaged.  But if she escapes indictment, and the prevailing narrative is that it was due to prosecutorial discretion, then her candidacy might be severely damaged as well.  One will need only point to the litany of low-level military men prosecuted and punished rather harshly under the statute to make the point that the former First Lady, Senator, Secretary of State, and multimillionaire has been treated rather favorably under the law.  Given that Bernie Sanders and Donald Trump have both built campaigns, in large part, on the general premise that our government is corrupt and has failed the people it should serve, this point will make it very difficult for their supporters to embrace Clinton.

In the end, Hillary Clinton may be a tragic victim not just of her own mistakes, but of the political Zeitgeist.  It remains to be seen whether the country will be a victim as well.

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By Jared H. Beck, Esq.

Jared H. Beck has a B.A. from Harvard College, an M.A. in government from the Harvard Graduate School of Arts and Sciences, and a J.D. from Harvard Law School, where he was an editor of the Harvard Law Review.  In addition to serving as co-founders and co-directors of JamPAC, he and his wife, Elizabeth, own and operate a law firm, Beck & Lee, in Miami.  Beck & Lee dedicated to the practice of business, personal injury and real estate litigation, as well as pursuing the rights and remedies of small businesses, consumers and investors through class actions. He is a member of the Florida and California Bars, and litigates in other U.S. jurisdictions in conjunction with qualified local counsel.  Beck can be reached at 305-234-2060 or jared@beckandlee.com.

 

 

 

 

 

 

 

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hack

2.  n.  An incredibly good, and perhaps very time-consuming, piece of work that produces exactly what is needed.

Definition of “hack,” Free On-Line Dictionary Of Computing.

“Hacking might be characterized as ‘an appropriate application of ingenuity.'”

The Meaning of ‘Hack,'” The Jargon File.

During a time of perhaps unprecedented partisanship in U.S. politics,  Americans largely agree on at least one issue.  A broad and growing consensus contends that money and its influence pose an existential threat to the democratic process, and this consensus has only strengthened in the midst of a historically rancorous presidential race.

In a recent Bloomberg poll, 87% of potential voters agreed that campaign finance reform is necessary.  Another 78% stated that the Supreme Court’s widely lambasted Citizens United decision, which established the right of so-called super PACs to spend unlimited amounts of money on elections, should be overturned. These sentiments are echoed on the campaign trail: Bernie Sanders, Hillary Clinton, and Donald Trump have all sharply condemned the Supreme Court case and called for campaign finance reform.  (Indeed, among the current front runners, only Ted Cruz has defended Citizens United, claiming that the Supreme Court didn’t go far enough in protecting campaign expenditures as a valid exercise of the First Amendment.).  President Obama openly criticized the ruling during his 2010 State of the Union Address, just days after it was published.

It is readily apparent that Citizens United has fast become a rhetorical bogeyman conjured by politicians seeking support. But the same politicians offer precious little detail on how the ruling might be circumvented, so that campaign finance reform may actually be accomplished. Completely absent from the campaign rhetoric is any real effort to describe a viable strategy for either (1) getting the Supreme Court to overturn the case; or (2) amending the Constitution — that is, the two possible paths available in the American political system for overriding a constitutional law ruling from the Supreme Court, such as Citizens United.

Neither path is easy.  Amending the Constitution requires a two-tiered process where 3/4 of the states must ratify a proposal adopted by either (1) a 2/3 supermajority of both houses of Congress; or (2) a national convention called by 2/3 of the states. In a day and age where congressional gridlock is the norm, not to mention bitter partisanship within and among the states, it is difficult if not utterly impossible to imagine building the coalition required to amend the Constitution anytime soon.

As for a Supreme Court reversal, the prospects appear inherently rosier; as opposed to a constitutional amendment, it requires only a majority of Supreme Court Justices to agree to overrule Citizens United in an appropriate case.  But as with any lawsuit, procedure is just one part of the picture and, in isolation, substantially overstates the likelihood that Citizens United could be judicially cast aside in the foreseeable future.

Indeed, any consideration of this possibility must start from acknowledging that a strong resistance to overruling precedent is pressed into the DNA of the American legal system via the doctrine of stare decisis.  As Chief Justice John Roberts wrote in his concurring opinion in Citizens United, “Fidelity to precedent — the policy of stare decisis — is vital to the proper exercise of the judicial function.”  And Justice Anthony Kennedy wrote for the majority that, “Our precedent is to be respected unless the most convincing of reasons demonstrates that adherence to it puts us on a course that is sure error.”  The primacy of stare decisis means that examples of the Supreme Court overruling itself are not only infrequent but usually occur long after the original decision, with time spans measured in several or many decades. (Citizens United itself overruled a 20-year old precedent, Austin v. Michigan Chamber of Commerce.).

Stare decisis aside, the possibility of overruling Citizens United depends on having a majority of Justices inclined to do so.  Right now, there is a 4-4 split between Justices for and against Citizens United, if one assumes Justice Kagan (who replaced Justice Stevens) would vote to overturn it.  While the Republican-controlled Senate seems steadfastly opposed to meeting with (much less approving) Merrick Garland, the President’s nominee to replace the late Justice Scalia, it is hardly obvious that Garland, if approved, would join a majority to overrule Citizens United.  In fact, in 2010, as a judge on the D.C. Circuit, Garland joined that court’s opinion in SpeechNow.org v. FEC applying and expanding the holding of Citizens United to strike down limitations on individual contributions to PACs as unconstitutional.  This line of reasoning is diametrically opposed to the view that Citizens United was wrongly decided.

With an unclear path to overruling Citizens United and an even more torturous route to amending the Constitution, Americans might have to accept that at least for the short term, there is no realistic legislative or judicial path to removing money from politics.  But this realization should not be cause for hopelessness.  Because the political system has been corrupted by money, money is a system vulnerability.  That vulnerability can be exploited.  As explained below, I believe the system can be hacked, and the hack can make the system better.

Enter JamPAC

On February 22, 2016, my wife Elizabeth and I became the proud directors of a new super PAC.  The process to create a super PAC was surprisingly simple and while we are both attorneys, it certainly didn’t exhaust any of our legal skills to do so.  It was as easy as filling out a five-page form and electronically filing it with the Federal Election Commission — no fee required.  As the immediate purpose of our super PAC was to support the Bernie Sanders’ campaign, we called it Do The Right Thing, in homage to Spike Lee,  who had just endorsed Sanders.  (Later, we changed the name to JamPAC, inspired by the concept of “culture jamming” as well as Bernie’s skill on the basketball court.).

Our pro-Bernie super PAC was born after Elizabeth spent weeks volunteering for the campaign — she called voters, went to rallies and “Bernstorms,” and organized phonebanks at our law office to get out the vote in the Democratic primaries.

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Elizabeth enjoying the company of fellow Berners at a Miami Bernstorm.

Elizabeth had started to seriously “Feel the Bern” after being thrust suddenly into the national political discourse due to a well-publicized altercation with Donald Trump.  At the time,  we could scarcely believe that Trump — a businessman of dubious integrity and success who fled from Elizabeth’s presence screaming when she asked to take a pre-arranged medical break — now had a legitimate shot at the Republican nomination.  The prospect of a Trump presidency caused us to seriously scrutinize which Democratic candidate was best-equipped to stop this nightmare scenario from happening.   For us, the answer was plain — Bernie, not Hillary Clinton, presents the sharpest contrast to the corrupt self-interest of billionaires and corporations so thoroughly embodied by Trump.

JamPAC was borne out of a desire to communicate to a much larger audience than could be reached by the traditional volunteer activities of canvassing, phonebanking, and holding up signs on the street.  As we watched a mainstream media blackout of Sanders coverage take hold (a blackout as pervasive as the same media’s appetite for Trump is voracious), we felt a need to disseminate pro-Sanders messaging via alternative media channels and social networking.  With urgent speed, we connected with a passionate and talented group of filmmakers, artists, and like-minded Bernie supporters. One of JamPAC’s initial projects was to produce Proud Latinos For Bernie (directed by  Ricardo Villalba and Christopher Schrack of DC-based Washington Digital Media), which was the very first Spanish-language video summarizing Bernie’s platform for a Hispanic audience.

 

JamPAC continues to release pro-Bernie videos by independent filmmakers and will do so through the end of the campaign.  We are constantly searching for innovative ways to deliver impactful messages to voters, and have already branched into graphic art and video games.

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“bern,” a JamPAC original by Mary Sholl

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“The Donald,” a JamPAC original by Mary Sholl

 

 

 

 

 

 

 

 

 

 

 

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Click above to play Election Fighter, brought to you by JamPAC in collaboration with GamePrez.

At the same time, JamPAC’s focus has expanded from raising awareness of Bernie and his platform to investigating and reporting on relevant campaign issues as they arise.  Indeed, the mainstream media blackout has not only impeded general voter awareness of Bernie’s candidacy, but blocked widespread reporting of the myriad election irregularities that have plagued the Democratic primary thus far.  To combat the information firewall, JamPAC is producing a unique video serial called House On Fire, following the investigation of former Bernie volunteer and social media celebrity Niko House into disturbing evidence of “dirty tricks” perpetrated against the Sanders campaign during the early primaries.  The trailer for House On Fire can be viewed below.

A Super PAC By And For The People

JamPAC owes its very existence to one man’s presidential bid, an endeavor to which it is singularly devoted at present.  Given Bernie’s avowed opposition to super PACs, the notion of a super PAC supporting him might seem problematic for the Sanders campaign platform, at least from a superficial vantage point.  But JamPAC’s ultimate aims transcend any single campaign or candidate.  Rather than embodying the conventional model of a fundraising organization at the service of a candidate, JamPAC seeks to disrupt the very concept of a super PAC by re-configuring the super PAC as a force for good — one which strives to restore the voice of the people to politics by rescuing American democracy from the corrosive stranglehold of entrenched elite interests.

In other words, we see a revolution in super PACs, through JamPAC, as part and parcel of the broader “political revolution.” The transformative potential of JamPAC derives from the two big “C’s,” which set it apart from the conventional super PAC model as deployed by corporations and billionaires. These are (1) Crowdfunding; and (2) Collaboration.

Contributions From The Crowd, Not The 1%

Since the introduction of Indiegogo and Kickstarter in 2008 and 2009, respectively, crowdfunding — a method of financing an enterprise via the collection of many small contributions — has quickly become a significant engine for business innovation. Various crowdfunding platforms enable entrepreneurs to fund ideas where more conventional financing is unavailable or cost-prohibitive.   It is estimated that crowdfunding alone raised over $34 billion in 2015, more than the entire venture capital industry.

The Sanders campaign, which to date has raised $140 million with 66% of campaign donations coming from small individual contributions (less than $200), has been heralded as the arrival of crowdfunding to politics — an “alternative model for crowdfunding presidential campaigns.” (The Nation,  October 1, 2015).   By enabling broad-based support across economic dividing lines, crowdfunding maximizes individual participation in the campaign financing process.  JamPAC translates campaign crowdfunding to the Super PAC, thereby creating a democratic counterweight to “big money” super PACs such as Priorities USA Action (pro-Hillary Clinton) and Right to Rise (pro-Jeb Bush).

Collaboration, Not Manipulation

Aside from enabling corporations and the 1% to control our elected officials through the power of the purse, conventional super PACs undermine American democracy via the media content they produce along with the attendant mode of production.  The conventional paradigm roots itself in a passive vision of the American electorate. According to the model, super PACs (as well as the campaigns themselves) produce messaging for the consumption of the electorate, disseminating it through the traditional mass media channels (television and radio).  The voter is reduced to a passive consumer of media, whose choice at the ballot box is framed and directed by the omnipresent and overwhelming media messaging.  By its nature (and in full accord with the interests of the corporate/1% class), the conventional paradigm seeks to displace any role for the voter as an active participant in the political process, whether via deliberation, association, expression, or other forms of engagement.

Instead of relying on and reinforcing the gulf between active participant (super PAC) and passive consumer (voter), JamPAC seeks to bridge the gap by integrating collaboration as an essential element in the production process.  JamPAC relies upon independent artists, not corporate-affiliated ad agencies, to create content.  By drawing on the extant passion for Bernie Sanders within the independent creative community, JamPAC ensures the act of producing content is itself an act of individual expression and thus political engagement.

Collaboration is further nourished by distributing JamPAC’s content strictly over social media, rather than the traditional mass media channels.  An active presence on Facebook permits voters to interact with and form a virtual community around the content — in stark contrast to the anonymous and passive consumption of television ads promoted by conventional super PACs.  The legal regime governing super PACs reflects the latter’s dependence on the voter as passive consumer — indeed, the definition of “electioneering communication,” as applied to super PACs, expressly excludes “communications over the internet”  while limiting its scope to “a communication that is publicly distributed by a television station, radio station, cable television system, or satellite system.” (11 CFR 100.29(b)(1), (c)(1)).

In contrast, JamPAC seeks to harness the Internet’s potential for user engagement with the ultimate aim of crowdsourcing the messaging of its content.  By fostering participation in the very process by which the messages are created and then disseminated, JamPAC promotes a vision of the actively engaged voter as opposed to a passive consumer of media subject to manipulation.

***

JamPAC likes to think of itself as a political experiment.  If the experiment is to succeed, it will be because the technological tools that have so quickly transformed entire sectors of the economy can now be deployed to resuscitate our moribund political system.  A positive transformation might mean that one day, there will be a whole constellation of super PACs organized on the JamPAC model–  organizations that are grassroots, fully engaged with the electorate, and representative of the entire ideological spectrum — that will supplant the frustratingly gridlocked and morally bankrupt political parties as the site of American democracy.  Armed with technology and a vision of a better future, super PACs like JamPAC can do for politics what Uber has done for transportation and Airbnb has done for hospitality.  As things stand, Citizens United has left us with little choice but to hack the system from within.

To learn more about JamPAC, please visit our website and Facebook page.  To find out more about House on Fire, JamPAC’s crowdfunded investigative video series, please visit JamPAC’s Generosity page.

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By Jared H. Beck, Esq.

Jared H. Beck has a B.A. from Harvard College, an M.A. from the Harvard Graduate School of Arts and Sciences, and a J.D. from Harvard Law School, where he was an editor of the Harvard Law Review.  In addition to serving as co-founders and co-directors of JamPAC, he and his wife, Elizabeth, own and operate a law firm, Beck & Lee, in Miami.  Beck & Lee dedicated to the practice of business, personal injury and real estate litigation, as well as pursuing the rights and remedies of small businesses, consumers and investors through class actions. He is a member of the Florida and California Bars, and litigates in other U.S. jurisdictions in conjunction with qualified local counsel.  Beck can be reached at 305-234-2060 or jared@beckandlee.com

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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Two months ago, I returned home from a summer family road trip to a message from Michael Barbaro, a reporter with the New York Times.  He had some questions about a real estate lawsuit my firm had handled.  Little did I know at the time, but returning his call would help ignite a media firestorm that catapulted my wife and law partner Elizabeth Beck into the national spotlight, prompted Donald Trump to emerge from his tower lair to slander her on national television with a series of outrageous fabrications, and ended up impacting the most-watched U.S. presidential primary debate in history.

It all started four years ago with a simple request to take a prearranged lunch break at a deposition of Mr. Trump, so that Elizabeth could use a breast pump in private, as she had been doing all week in other depositions.  For the uninitiated, a breast pump is a medical device that enables nursing mothers to continue breastfeeding after they return to work. Understanding how such a mundane request could evolve into a political flashpoint entails a walk through the latest, ugly chapter in American politics.

The Trump Real Estate Lawsuit

To begin, we need to go back in time to the lawsuit the New York Times reporter wanted to know more about when he called my office.  The case was filed in 2009 and involved a failed Trump-branded condominium hotel project in Fort Lauderdale. Donald Trump had advertised to our clients he was the project’s developer when in fact he only licensed his name.  In an effort to recover our clients’ down payments, we brought suit against a number of parties behind the project, including Mr. Trump and his organization.

Upon returning Mr. Barbaro’s call, I was fully expecting to discuss Mr. Trump’s .  So, I was more than a little surprised when he explained he was reading through a transcript of a deposition Elizabeth had taken of Mr. Trump on November 16, 2011, and wanted to know more about a strange incident that had occurred that day – an event which will always be emblazoned in my mind.

A Week of Depositions In New York

It was the week before Thanksgiving in Manhattan.  Elizabeth and I had flown in to take a series of depositions in the Trump lawsuit.  It was an especially busy time for us.  We were new parents.  Our daughter Vesper had arrived in August, and my mother was babysitting her in Miami.  It was Elizabeth’s first trip away from home since giving birth.  Because she was breastfeeding Vesper, she had to use a breast pump regularly in order to maintain her milk supply, avoid the risk of infection, and alleviate pain.

Elizabeth’s breast pump

Before leaving for New York, we advised Mr. Trump’s legal team of Elizabeth’s need for breaks to administer a medical procedure in private.  No one objected.  The entire week of depositions was scheduled to take place at the office of Mr. Trump’s law firm, Kramer Levin.  Mr. Trump was slated to be deposed on Wednesday, November 16th.  The depositions on Monday and Tuesday proceeded without incident and included breaks, on each day, for Elizabeth to pump.

At the conclusion of Tuesday’s session, one of Mr. Trump’s in-house lawyers, Alan Garten, approached and asked that we move Donald Trump’s deposition the next morning to the Trump Tower in place of Kramer Levin.  Elizabeth and I quickly conferred and decided against moving it.  We wanted to depose Mr. Trump in the formal setting of a law firm, where all the other depositions had taken place, and where our boxes of documents were located.  We also wanted to make sure Mr. Trump was giving us his full attention.  After we informed Mr. Garten of our decision, he was visibly irritated.

November 16, 2011: The Deposition of Donald Trump

The morning of November 16th started out ordinarily enough.  As usual, Elizabeth and I arrived about an hour early to prepare.  There were copious documents to examine with Mr. Trump, and we wanted to make sure we had everything in precise order.  We reviewed our notes and outlines.  The day before, a Kramer Levin paralegal sent the following email to Elizabeth indicating that Mr. Garten had requested a lunch break for Mr. Trump’s deposition.

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I recall Elizabeth mentioning to me that morning, as we prepared, that she planned to use the scheduled lunch break to pump, in order to save time.

The deposition was set to begin at 10:30, and Mr. Trump arrived with a minute to spare.   Glancing at Elizabeth and me, he asked that we get through the material as quickly as possible.  Everyone took their seats around the conference table, with Elizabeth seated directly across from the deponent.  The court reporter swore him in.  Elizabeth started asking questions.

Almost immediately, I sensed irritation and hostility from Mr. Trump.  It was apparent he disliked being away from the Trump Tower and resented being interrogated about one of his failed real estate deals.  At one point early into the proceeding, he asked if Elizabeth was “kidding” with a question about how he defines the “construction” of a building.  At another point, he called her questions “very stupid” when Elizabeth reminded him to let her finish the questions before talking.  (All of this appears in the written transcript below).

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Later, he mocked the way Elizabeth pronounced a word.  He popped what looked like tic tacs.  He stared glumly out the window.

At the time, none of this struck me as cause for concern.  Elizabeth and I have taken and defended numerous depositions in our career.  Sometimes, a witness will act in an abusive or gruff manner in the hopes that by doing so, the lawyer will speed up the questioning or even better, stop early.  We were prepared for this possibility and determined not to be thrown off course.  After all, a deponent’s only obligation is to answer the questions truthfully; there is no duty to be particularly nice or civil to the opposing lawyer, and Mr. Trump certainly wasn’t from the outset.

Mr. Trump Has a Meltdown

But as lunchtime approached, things took a turn for the weird.  Mr. Trump’s lead outside counsel, Herman Russomanno, a former president of the Florida Bar, asked for a “one-minute break for the restroom.” (direct quote).  Mr. Trump wasn’t having it.  “You have to take a one-minute break?  Can we go on and finish this? Let’s not take a one-minute break.” (direct quote).  Mr. Russomanno stayed in his chair.

As I recall, Mr. Trump’s refusal to allow his own lawyer a break to use the bathroom is what prompted Elizabeth to remind the room that she was going to need a medical break, and she intended to use the prescheduled lunch for this purpose.  It was half-past noon by then.

But Mr. Trump still wasn’t having it.  No break for Mr. Russomanno, certainly no break for Elizabeth or to eat lunch.  When Elizabeth insisted that she needed the break and it was prearranged, he rose from his chair.  Mr. Trump’s red-faced, finger-wagging invectives have been widely reported: “You’re disgusting, you’re disgusting!” he yelled when she displayed the breast pump to underscore her urgency.  I also remember him calling her “uptight,” referring to me, her husband, as “her boss,” and declaring that we would have to fly back to New York if we wanted to continue deposing him.  He then stormed out of the room.

We Wait Around, and Mr. Trump Goes to Florida

And so the deposition of Donald Trump came to an end, at least for that day.  We waited around at Kramer Levin for an hour on the off-chance he might have a change of heart and return.  He didn’t.  As we sat there, my mind turned to the motion I would likely be drafting to ask the court to compel Mr. Trump to continue the deposition and issue sanctions against him for his misconduct.  Elizabeth looked tired and didn’t say much.  Then we walked back to our hotel and turned our attention to other matters.  We had a lot of work to do.  There were two more depositions scheduled that week, and we had to prepare for them.  Thankfully, they proceeded without a hitch, and we flew back home.

As it turned out, we never had to bring the incident to the court’s attention.  Instead, I dashed off the following letter to Mr.Trump’s lawyers threatening to do so.

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The mere prospect was enough to get him to fly down at his own expense to West Palm Beach to resume the deposition in March.  And it went as it should have gone from the beginning; everyone was polite and it concluded without further incident.

Why Come Forward Now?

So, when I found myself talking to a New York Times reporter about what a witness had said to my wife, off the record, at a deposition almost four years ago, the lawyer in me actually wondered whether it was newsworthy.  Poor behavior by a deponent is certainly not unheard of in our profession, and in this case, any legal repercussions from Mr. Trump’s tantrum were mooted by the lawyers’ agreement to continue the deposition in Florida.

But sometimes an event, seemingly mundane at the time, acquires greater significance through later events.  Donald Trump is not just a businessman and a reality-TV personality who once lost his cool at a deposition; he is, in 2015, handily leading the race to become the Republican Party’s nominee for president.

Before attending law school, I spent two years pursuing a Ph.D. in political science at Harvard.  Part of what drove me as an aspiring political theorist were deep questions about what motivates political leaders, and how these traits reflect the broader values of the society they govern.  In his campaign to become our next president, Mr. Trump has projected a tough-guy image predicated on having the courage to say unpleasant truths and refusing to yield to the morally bankrupt forces of “politics as usual.”  In this context, the breast-pump incident suggests a massive chink in the suit of armor Mr. Trump is trying to sell to the American public, and perhaps the most direct evidence that his image is just an act.

What kind of world leader totally disintegrates and flees the room when confronted with a medical apparatus and a request to take a break at a mundane legal proceeding?

Looking back with the benefit of four years hindsight, the episode reflects yet another, more personal dimension for Elizabeth and me – our ongoing battle to balance work and parenthood.  As owners of a small business, we have been fortunate to have the flexibility to integrate parenthood with our working lives – both of our children have spent many days at our sides, in the office and at home, while we work.  Diapers, bottles, and (yes) breast pumps have populated each part of our working/parenting existence.  Mr. Trump’s extreme reaction was a stark reminder of how many folks – especially women – must still struggle against outmoded attitudes when navigating the workforce as parents.

But what probably drove our decision to go on the record with the New York Times, more than anything else, was the seriousness with which a substantial segment of the population is taking Mr. Trump’s presidential candidacy.   While many pundits are quick to minimize his campaign as a farce or suggest that his star will inevitably fade in favor of an establishment-backed candidate, the poll numbers are hard to ignore.  In the end, we felt we had been witness to an event revealing significant information about the character of a legitimate contender for the highest office in the land.  And so we felt a responsibility to tell what happened.

The New York Times Breaks the Story.  A Media Frenzy Ensues

When Mr. Barbaro got on the phone with Elizabeth, he warned her that media attention following publication in the New York Times might be “intense.”  This ultimately didn’t deter her, nor did the thought that she might raise the ire of Mr. Trump, a notoriously vengeful and outspoken billionaire.  She decided in the end to follow her own north star in spite of all the reasons not to come forward.

(A side note: where others might be fazed, Elizabeth typically is not.  She immigrated to this country from South Korea at the age of three and traveled a road taking her from daughter of a single mother on public assistance, to foster child, to high school teacher in South Central Los Angeles, to Yale Law School graduate, to co-managing partner of her own law firm and passionate advocate on behalf of her clients.  Tackling obstacles head on is part of her DNA.)

On July 28, the New York Times article “Under Oath, Donald Trump Shows His Raw Side,” broke on the front page of the website.  Soon after, a CNN producer contacted Elizabeth to have her recount her experience.  The media maelstrom had begun in earnest and raged full-blast for almost 48 hours.  In addition to CNN, Elizabeth appeared on MSNBC (“All In” with Chris Hayes) and several international stations.  Hundreds of articles appeared on the Internet, many with their own unique spin on the event and/or political orientation.

Mr. Trump Emerges From the Trump Tower With a Response

Back at our office fielding calls and trying to stay abreast of the rapidly expanding coverage, we frequently circled back to the CNN website, mainly to see whether and how the Trump camp would respond to Elizabeth’s morning interview.  Around 2 p.m., a new item grabbed my eye with the headline: “Donald Trump: Elizabeth Beck is a ‘horrible person.’”  I clicked on the video.  There was Mr. Trump being interviewed in a corner of the Trump Tower lobby.  He looked and sounded pissed.  My wife, he claimed, is not only a “vicious, horrible person” but “a tough killer in Miami[,] everyone knows she’s a killer.  They all hate her.”

As to the incident itself, Mr. Trump started off by claiming he stormed out of the deposition in a furor because Elizabeth not only wanted to breast pump, but breast pump in front of him (?!) (as I recall, besides Mr. Trump, there were six other men in the room that day, including me).  But towards the end of the interview, he stated that Elizabeth “made up” the incident.  Interestingly, in the New York Times article, Mr. Trump’s lawyer had accused Elizabeth of “seeking to buy time to come up with new questions for Mr. Trump” – a notion which had apparently fallen out of favor by the time CNN came calling.  Mr. Trump’s account was fluid and shifting, to say the least.  And in any event, none of these tall tales (including the laughable notion that Elizabeth wanted to pump in front of Trump) appear in the lengthy colloquy at the end of the written deposition transcript, where the lawyers, including Mr. Trump’s own outside counsel, tried to make a record of what had just happened.

Mr. Trump’s Lies

It could hardly have shocked us that the Trump Organization would concoct three separate, contradictory, but equally ludicrous falsehoods to deflect attention from Mr. Trump’s behavior that day.  His stated political positions over the years show no regard for consistency.  Furthermore, through our experience litigating against Mr. Trump and his companies, we have come to expect a marked disdain for the truth.  In fact, in 2014, the federal court overseeing our case sanctioned Mr. Trump and his organization for making a false representation in their Rule 26 disclosure – which, as attorneys versed in federal court practice know, is one of the most basic disclosure obligations in federal civil litigation.  Below is the order.

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Federal judges are often reluctant to issue such sanctions.  They are typically reserved for the most egregious violations, in order to preserve the integrity of the judicial system from dishonest litigants and those who disregard the rules of court.

So while it came as no surprise that Mr. Trump would spout a series of fabrications, I was still taken aback by the intensity of vitriol spewed at my wife, with words usually reserved for violent criminals rather than the hard-working mother of two I’ve been married to for 11 years.

Elizabeth with Vesper and our dog, Ruby

Elizabeth was probably most incensed by the accusation that she had “made it up.” She promptly gathered up documentation to bring with her to “All In” on MSNBC, which afforded her the opportunity to make an impassioned rebuttal ending with a plea for voters to seriously scrutinize Mr. Trump’s character.

The Hate Mail

One “perk” of the sudden media spotlight came as a deluge of hate mail from Trump supporters, which arrived in the form of email, voicemail messages, Facebook messages, tweets, and even a couple of anonymous letters delivered by the post office.  There were at least three recurrent themes which seem worthy of note based on what they might reveal about the Trump faithful:

1).  A deposition is no place for a woman who is breastfeeding;

2).  If a lawyer said it, it’s a lie;

3).  Those lucky enough to cross Donald Trump’s path should do their best to do as he says and try to make a good impression on him.

The Aftermath: Fox News, the GOP Debates, and a New Ugly Chapter in American Politics?

Practically as soon as we could catch our breath, the interest in the breast pump that stumped Trump gave way to voracious coverage of the first Republican presidential debate on August 6th.  However, that strange incident from four years ago cast its shadow even here; five questions into the debate itself, in a moment destined to become enshrined in the annals of American political history, Fox moderator Megyn Kelly looked Mr. Trump in the eye, invoked his history of slanderous comments to women (“fat pigs, dogs, slobs, and disgusting animals”) and questioned whether he had the “temperament of a man we should elect as president.”

After the debate, Elizabeth told me she felt enormous gratitude at that moment, as if Ms. Kelly had taken a heavy baton from her and sprinted forward with it.

As I write, “Trumpism,” as some have called it, appears to be in full force and effect and going strong as ever.  Mr. Trump maintains his sizable lead the polls.  He is promoting an immigration “plan” based on promptly deporting all illegal immigrants and demanding Mexico pay for a “wall” on the border.  He wants to eliminate the 14th Amendment’s guarantee of birthright citizenship.  His stadium rallies draw supporters numbering in the tens of thousands.  While the conventional wisdom continues to insist that this moment too shall pass, there is also a sense that something fundamental has changed in American politics, and that the fascination with Mr. Trump has evolved from entertaining curiosity to something more serious and, perhaps, menacing.

The reality will depend on whether we may still rely on Theodore Roosevelt, when he noted, “[t]he most practical kind of politics is the politics of decency.”

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By Jared H. Beck, Esq.

Jared H. Beck has a B.A. from Harvard College, an M.A. from the Harvard Graduate School of Arts and Sciences, and a J.D. from Harvard Law School, where he was an editor of the Harvard Law Review. His law firm, Beck & Lee in Miami, is dedicated to the practice of business, personal injury and real estate litigation, as well as pursuing the rights and remedies of small businesses, consumers and investors through class actions. He is a member of the Florida and California Bars, and litigates in other U.S. jurisdictions in conjunction with qualified local counsel. Mr. Beck can be reached at 305-234-2060 or jared@beckandlee.com

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Surprisingly little has been written on Florida’s medical necessity defense, although the Amendment 2 campaign to legalize medical cannabis prompted some renewed discussion of the doctrine.  Still, medical necessity remains a barely examined and rarely applied legal concept in Florida.  It could gain importance as barriers to cannabis use, both recreational and medical, continue to tumble throughout the country.

Florida’s medical necessity defense has received scant attention.

In the 1991 case of Jenks v. State, 582 So. 2d 676 (Fla. 1st DCA 1991), a Florida appellate court recognized that the common law defense of necessity may permit medical uses of marijuana.  The court held that for the defense to be valid, a defendant must prove three elements:

1. That the defendant did not intentionally bring about the circumstance which precipitated the unlawful act;

2. That the defendant could not accomplish the same objective using a less offensive alternative available to the defendant; and

3. That the evil sought to be avoided was more heinous than the unlawful act perpetrated to avoid it.

The present home of the First District Court of Appeal, which recognized the defense of medical necessity in 1991.

Jenks involved the criminal prosecution of a couple with AIDS who grew marijuana to relieve their symptoms, including nausea.  The appellate court found the defendants had proven medical necessity at trial, and therefore reversed their convictions.  The court had no trouble finding each of the three required elements were satisfied.  As the opinion notes:

1. The Jenks did not intend to contract their medical condition;

2. There was no treatment other than cannabis which could effectively relieve their symptoms; and

3. If their symptoms could not be controlled, the Jenks’ lives were in danger.

At a time when cannabis is gaining ever widening acceptance as a medicine throughout the country (even while Florida continues to treat it as an illegal substance), Jenks raises some important issues.

As to the first element, most patients, like the Jenks, do not intend to contract their illnesses.

And as to the third element, as more states recognize cannabis as a legal medicine (there are now 23 plus the District of Columbia), it becomes increasingly harder to make the case that patients with debilitating conditions should be denied access to an effective herbal remedy because of some countervailing “evil.”

At trial, Dr. Thomas Sunnenberg testified on behalf of the Jenks.

That leaves the second element: whether the defendant could accomplish the same objective using a “less offensive” alternative to cannabis.  What does this mean exactly? In Jenks, the couple’s doctor testified to the existence of a legal medication (Reglan) which is “a little more effective than marijuana” at alleviating nausea, but he also testified that it had to be administered intravenously in large doses, posing a risk of infection  to AIDS patients. Thus, it seems fair to say that under Jenks, cannabis need not be the only treatment possible.  The medical necessity defense may still be proven in cases where the alternative to cannabis has a substantial downside to the patient.

What kind and how much of a downside must be shown is not entirely clear from Jenks.  But it is safe to say that proving this element of the necessity defense is much easier in 2015 than it was in 1991.  For starters, there is now a large and expanding body of patients, caregivers, and medical professionals outside of Florida who may provide testimony as to the advantages of cannabis over other possible remedies.  There is also a growing body of published research demonstrating the relative virtues of cannabis.  For example, consider a recent Johns Hopkins study concluding that in medical marijuana states, the annual number of deaths from prescription drug overdose is 25 percent lower than in states where marijuana remains illegal.  Given cannabis’s well-documented safety record (no deaths directly due to acute cannabis use have ever been reported), such research makes it supremely difficult to argue that the commonly prescribed alternatives for pain management are “less offensive.”

The longer the prohibition on cannabis persists in Florida, the more likely it is that cannabis patients will assert the medical necessity defense in the event of prosecution.  And as time goes on, the likelihood of prevailing on such a defense  will increase in any given case, given the accumulation and expanding availability of evidence showing the advantages of cannabis in contrast to alternatives.  The availability of the medical necessity doctrine therefore presents the potential for de facto legalization of medical cannabis in Florida on a judicial, ad hoc basis.  While such a possibility would bring relief to some patients in the short-term, it is plainly deficient as a long-term policy outcome.  Litigation is an expensive and uncertain process ill-suited to determining a subject as critical and complex as the regulation of medicine for patients with debilitating conditions.  Such regulation should only proceed legislatively, as has occurred in the 23 states which have already approved medical marijuana.

The uncertain potential of the medical necessity doctrine should spur the Florida legislature to follow suit.

— By Jared H. Beck

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While the global economy remains in the doldrums, recent reports have the South Florida condo market showing signs of recovery, even robustness.  Still, the fallout from the Great Real Estate Crash of several years ago remains undecided in critical ways.  This is especially true of the legal realm, which typically marches to a slow but steady drumbeat.

Yesterday, the Third District Court of Appeal — the Florida State intermediate appellate court with jurisdiction over Miami-Dade County — dropped a bombshell of sorts.  In a case called CRC 603, LLC v. North Carillon, LLC, the court endorsed the holding of a prior federal trial court decision called Double AA International Investment Group, Inc. v. Swire Pacific Holdings, Inc.   As I wrote in 2010, the Double AA court concluded (to the surprise of many in the field) that Florida developers must establish two separate escrow accounts to hold most preconstruction condominium deposits in order comply with Section 718.202 of the Florida Statutes.

The law in question provides buyers with a right to cancel the contract when the developer does not comply.  Because many developers established only one escrow account to hold deposits, many buyers have a right to cancel under the holding of Double AA.  Now that the Third District Court of Appeal has said it agrees with Double AA, this holding will have the force of binding precedent in Florida (unless, of course, it is overturned by the Florida Supreme Court).

What is especially intriguing about this opinion (or perhaps troubling, depending on where you are sitting) is where the 3rd DCA, at least implicitly, paves the road to liability for the condo market crash debacle.  In condominium projects, it is typically the escrow agent, not the developer, who bears responsibility for complying with the rules and regulations governing escrow accounts.  If developers did not set up two separate accounts like they were supposed to, it is because, in my experience, the escrow agents they hired chose not to do it that way because they didn’t think it was necessary under their (incorrect) reading of the statute.

As a result, we may see a yet another wave of litigation stemming from the condo crash: developers suing escrow agents for failing to comply with the escrow statute on the theory that this failure exposed developers to losses from buyer cancellation claims.  Because many of the escrow agents were attorneys or law firms, there may be claims for legal malpractice as well.  So while many buyer lawsuits are now working their way through the legal system and finally reaching resolution, there may well be a next chapter in the litigation story.

[image error]By Jared H. Beck, Esq.

This article does not constitute legal advice or the formation of an attorney-client relationship, and is not for re-publication without express permission of the author.

Jared H. Beck has a law degree from Harvard Law School. His law firm, Beck & Lee Trial Lawyers in Miami, is dedicated to the practice of business and real estate litigation, as well as pursuing the rights and remedies of small businesses, consumers and investors through class actions. Mr. Beck’s expertise also includes issues arising under purchase contracts for real estate, including condominiums, condo-hotels, single-family homes, and commercial property. He is a member of the Florida and California Bars, and litigates in other U.S. jurisdictions in conjunction with qualified local counsel. Mr. Beck can be reached at 305-789-0072 or jared@beckandlee.com

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Lately, Donald Trump has been dominating headlines as a potential presidential candidate.  Much of the discussion so far has concerned the seriousness of Mr. Trump’s plans. Commentators have noted past announcements of a Trump candidacy that never materialized, and his history of seeking the limelight at all costs, not to mention his lack of well-formulated political goals or viewpoints.

Photo by Gage Skidmore

But whether or not Donald Trump has any real intention of throwing his hat into the ring this time around, one thing should be clear to anyone who has observed his track record as a real estate developer.  In the very line of work upon which he built a career, Mr. Trump has repeatedly shown himself to lack essential leadership skills.  Mr. Trump cannot govern the United States, because he does not know what it means to be a leader.

I know this because I represent a group of individuals who have been defrauded by this presidential candidate pretender.  In 2005 and 2006, before the real estate market and economy turned sour, my clients advanced substantial sums of money toward the purchase of units in a planned condominium hotel development to be called the Trump International Hotel & Tower in Fort Lauderdale, Florida.  Before putting down their deposits, they received a large array of advertising materials touting the wonders of the project and highlighting Donald Trump’s involvement.  Artists’ renderings showed an exquisite structure on the Atlantic Ocean, the epitome of luxury and sophistication.  Included was a letter signed by The Donald on Trump stationery, promising that “This magnificent oceanfront resort offers the finest and most luxurious experience I have created.”

Flash forward to 2009.  In the midst of a historic collapse of the global credit markets, the project’s main construction lender fails and is taken over by the federal government.  Stripped of financing, construction stalls, raising questions of whether the condominium will ever see completion.  At this point in the story, one would expect Donald Trump with his supposed billions of dollars in assets and decades of development prowess to step in and save the day by ensuring that the condominium bearing his name is built on schedule.  Right?

Wrong.  Instead of rising to the occasion, Mr. Trump bails.  He publicly declares he has nothing to do with the building, and, in fact, was never the developer in the first place.   The dream peddled by Mr. Trump goes up in smoke; the project goes into foreclosure, and my clients never get the condominiums they paid for.  Today, we are fighting an arduous legal battle to recover their down payments.  And remarkably, my clients are not alone in their experience: in recent years, practically the identical scenario has played out with failed Trump condominium developments in Tampa and Baja California.

This is hardly the track record of a leader.  Dwight Eisenhower once said that “leadership consists of nothing but taking responsibility for everything that goes wrong and giving your subordinates credit for everything that goes well.”  Mr. Trump appears to have just the opposite approach: shamelessly promoting himself at every opportunity, but turning tail when the going gets rough.

As part of his latest media blitz, Mr. Trump brags that he once fleeced Gaddafi in a New York real estate deal.  This may or may not be a praiseworthy achievement or a qualification for the presidency, but there is nothing noble about leaving  ordinary citizens with shattered hopes and dreams.   If Donald Trump cannot be counted on to see his own real estate projects through to completion, imagine what President Trump would do in the context of difficult policymaking, a sudden war, or an unexpected disaster at home.  The thought is terrifying.

Odds are that Donald Trump will not actually run for president.  But if he does, I predict his candidacy will not last long.  At the first sign of adversity, Mr. Trump will fold up the tents, close up shop, and retreat back into his studio set world. After all, it takes leadership to weather storms.

[image error]By Jared H. Beck, Esq.

This article does not constitute legal advice or the formation of an attorney-client relationship, and is not for re-publication without express permission of the author.

Jared H. Beck has a law degree from Harvard Law School. His law firm, Beck & Lee Business Trial Lawyers in Miami, is dedicated to the practice of business and real estate litigation, as well as pursuing the rights and remedies of small businesses, consumers and investors through class actions. Mr. Beck’s expertise also includes issues arising under purchase contracts for real estate, including condominiums, condo-hotels, single-family homes, and commercial property. He is a member of the Florida and California Bars, and litigates in other U.S. jurisdictions in conjunction with qualified local counsel. Mr. Beck can be reached at 305-789-0072 or jared@beckandlee.com

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