Monday Round-up

1. The true status of lawsuits against Donald Trump
There are a lot of lurid headlines floating around about legal problems for Donald Trump. Some of the headlines scream “Trump accused of rape”, and “Trump accused of racketeering”.
Well, not quite. The lawsuits are civil complaints, not criminal complaints, so at this point Donald Trump is not charged with criminal counts. As Ken White explains carefully, Donald Trump is not about to be marched into court in November to face criminal charges for rape. Neither is he the defendant in a criminal RICO conspiracy charge. Hyperbole in the service of communication is not good, no matter which end of the political spectrum it originates.

2. Falsification of images to claim voter fraud

An image being circulated that purports to show a U.S. Immigration and Customs Enforcement (ICE) agent arresting an alleged undocumented immigrant in the back of a voter line is a fake. It is a composite of two separate images from completely different locations and dates.
Be vigilant. Photoshop is not a friend of the electoral process.

3. Laws on wiretapping
All states of the Union have anti-wiretapping laws. These vary in the conditions that are specified before a conversation between two or more parties can be legally recorded and, if appropriate, used in evidence. A number of states are what are known as “two party” states; in those states, both parties to a conversation must affirmatively give consent before any of the conversation can be legally recorded. Other states (including Texas) are “one party” states, where one party only needs to provide consent.
James O’Keefe and his pressure group Project Veritas has made a habit of recording conversations between Veritas personnel (usually engaging in deceptive impersonation) and other organizations, in an effort to demonstrate malfeasance by the targetted organization or its agents.
However, on at least one occasion, O’Keefe has been found personally liable under state laws for illegally recording conversations and obtaining documents. The latest round of revelations from Project Veritas concerning Democratic-affiliated organizations may also include illegally recorded conversations from two-party states.
I remain amused at the extent to which groups that claim that the Rule Of Law is sacrosanct are prepared to go to ignore state and federal laws when those laws conflict with their objectives.

4. The aftermath of the court verdicts for Malheur
As many of you have found out, the defendants in the trial over the occupation of the Malheur Wildlife Refuge were found Not Guilty last week by a jury at the end of the trial in Portland OR. This was a surprise to many people, not just the government.
It is far from clear exactly what reasoning led the jury to decide to find the defendants not guilty. There were also strange incidents during their deliberations, including a request from the jurors to essentially have one of the jury panel removed for what was described as “bias”. In hindsight, this might well have been a case where the juror was a lone holdout against a unanimous collection of Not Guilty verdicts.
The charitable conclusion from the verdicts is that the jurors were not sufficiently persuaded by the primary charge of conspiracy to impede Federal workers. Conspiracy charges have a high burden of proof. They require a jury to find that the defendants conspired as a group in advance to engage in activities that were clearly illegal, and that they then acted as a group to carry out those activities. That is a high burden of proof. The second charge of illegal use of firearms was also linked to the conspiracy, so it made the charges an “all or nothing” proposition for the prosecution. If the defendants were found not guilty of conspiracy, they could not be found guilty on the firearms charges. Effectively the prosecution created a set of “all or nothing” indictments. There were no consolation prizes of finding the defendants guilty on lesser charges.
The defendants sought, as part of their defense, to claim that a lot of their activities were not planned in advance, and just sort of happened on the fly, which would undercut the conspiracy claim.
There were more straightforward charges that could have been filed, such as trespass and criminal damage. The decision to use conspiracy charges may have been too ambitious by the prosecution.
The less charitable and more worrying conclusion is that the jury, instinctively sympathetic to the defendants, simply engaged in jury nullification.
To some extent it does not matter either way. The Federal government is not able to re-file new charges against the defendants because of the double jeopardy rules, although Harney County in Oregon could elect to file charges against them under local laws. I consider that unlikely.
Most of the defendants from Oregon are still charged in Nevada over the events at the Bunkerville standoff in 2014, and a number of them will remain in jail until that trial. The Bunkerville charges are a lot more serious, and the courts and judges in Nevada have shown a much lower tolerance for SovCit bullshit. We shall see how that trial unfolds.


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