Criminal Justice – Page 4

Power To The (Voting) People

Here in Marion County, Indiana, incumbent Prosecutor Ryan Mears has generated Republican criticism for making it clear he will deploy the resources of his office to target serious crime–and that his definition of serious crime doesn’t include smoking a joint or having an abortion. He sees his job as an important part of public safety efforts to protect citizens against crimes like rape, robbery and murder.

Mears is hardly the only prosecutor taking that position. Prosecutors have limited resources, and determining the most effective use of those resources in combatting crime is actually a critical part of the job description.

Right now, a battle taking place in Florida between Governor Ron DeSantis and Prosecutor Andrew Warren is illuminating what happens when an ambitious and autocratic governor pretends not to understand that responsibility.

When Florida’s Republican governor fired the Tampa area’s top prosecutor for defying the state’s transgender and abortion crackdown, Ron DeSantis made it clear that he believes his power as governor supersedes the power of voters.

But now that prosecutor, Andrew Warren, is suing to get his job back, and the twice-elected state attorney tells The Daily Beast this is more than a fight over his employment; it’s about whether a strongman governor can single-handedly toss a democratically elected local official out of office.

Politicians like DeSantis and (clumsier and closer to home, Todd Rokita) have tied themselves to the MAGA/ White Christian Nationalist crusade–since his election, DeSantis has moved to “ban certain books in schools, halt transgender health care for young people, isolate and bully gay kids, and target transgender athletes in schools.”

Warren makes an important point: if DeSantis can overturn the will of the voters who chose him as prosecutor, what would prevent him from targeting elected school board members who choose to ignore his book bans and crackdowns on gay and transgender kids?

“There’s so much more at stake than my job. This is a fight to stop the erosion of our democracy. It’s to ensure our democracy has meaning, so we have elected officials and not a king, so no governor can steal the people’s vote and silence their voice. Regardless of what party you belong to, your vote matters,” Warren said.

This particular battle started shortly after the Supreme Court stripped women of abortion rights in June, when Warren and other elected prosecutors across the country sought to temper widespread fears about misogynistic crackdowns. Warren signed a joint statement vowing to not “criminalize reproductive health decisions.” DeSantis, seething over what he called a “woke” resistance, announced with much fanfare on Aug. 4 that he was suspending the Hillsborough County state attorney. The executive order accused Warren of “eroding the rule of law” and “encouraging lawlessness.” Warren sued two weeks later in federal court.

So far, the judge in the case has consistently ruled against DeSantis on preliminary matters. He issued an order rejecting the governor’s legal theory, which requires a finding that that public employees’ on-the-job statements aren’t protected by the First Amendment, and also requires a determination that an elected prosecutor is an “employee” of the governor who can be subjected to discipline by that governor/employer.

The judge has made a correct and important distinction between elected officials, and appointed agency employees. DeSantis has the legal authority to target the latter category, no matter how vindictively—as he did to the Health Department researcher who was pressured to resign when she wouldn’t fake COVID-19 data to make Florida look good.

He has no such power over officials who were voted into office.

The lawsuit in Florida and the criticisms being leveled against the numerous prosecutors who have taken positions similar to those taken by Warren and Mears should operate to focus more attention on down-ballot elections. We The People get to choose our local officials, and those officials aren’t beholden to state-wide officeholders–they are accountable to the law and to us. It behooves us to investigate their positions, priorities and prior performance, and vote accordingly.

Here in Marion County, Indiana, we are fortunate enough to have an incumbent prosecutor who is forthright about where he stands, and candid about the ways in which he intends to deploy the limited resources of his office. For my part, I agree entirely with his priorities and approve of the way in which he has run the office. People who disagree should vote for his opponent. No matter who wins, however, that individual will be accountable to us, the voters–not to the governor and not to Indiana’s current (embarrassing) Attorney General.

They, too, are accountable to We The People.

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Scary Stuff…

During Reconstruction, it was the KKK.

This time, it’s organizations like Oath Keepers and Proud Boys–but the context is uncomfortably similar. If the U.S. is currently waging a different kind of civil war, as many pundits argue, these assorted groups of violent extremists–some 1600 of them, according to the Southern Poverty Law Center–are today’s domestic terrorists.

Today’s Klan.

A raft of academic studies has confirmed that most episodes of domestic terror in the U.S. are carried out by these right-wing groups–far in excess of Islamic or left-wing groups. And–just as during Reconstruction–the destructive actions of these groups are rooted in racism. Theirs isn’t the embarrassing but less violent racism we see in the posts to social media decrying Disney’s decision to cast a Black mermaid. This is a malignant and horrifying desire to wreak physical harm and even death on the feared and hated “other.”

Even more terrifying than the proliferation of these groups is the discovery that their membership includes a large number of police and military officers.

The names of hundreds of U.S. law enforcement officers, elected officials and military members appear on the leaked membership rolls of a far-right extremist group that’s accused of playing a key role in the Jan. 6, 2021, insurrection at the U.S. Capitol, according to a report released Wednesday.

The Anti-Defamation League Center on Extremism pored over more than 38,000 names on leaked Oath Keepers membership lists and identified more than 370 people it believes currently work in law enforcement agencies — including as police chiefs and sheriffs — and more than 100 people who are currently members of the military.

It also identified more than 80 people who were running for or served in public office as of early August. The membership information was compiled into a database published by the transparency collective Distributed Denial of Secrets.

The data raises fresh concerns about the presence of extremists in law enforcement and the military who are tasked with enforcing laws and protecting the U.S. It’s especially problematic for public servants to be associated with extremists at a time when lies about the 2020 election are fueling threats of violence against lawmakers and institutions.

As their affiliations have emerged, a number of those identified have taken pains to minimize their connections–saying they left the organization long before, or only paid dues once and left when they realized the organization was violent/hateful/extreme. As the linked report notes, that excuse simply doesn’t hold up–the Oath Keepers have been very explicit about their “mission’ from the day they were founded.

About that founding: Oath Keepers was formed in 2009 by someone named Stewart Rhodes. It is described as a “loosely organized conspiracy theory-fueled group,” and it very deliberately recruits current and former military personnel, police and other first responders. It requires members to defend its twisted version of the Constitution “against all enemies, foreign and domestic,” and includes the federal government among those enemies, arguing that the federal government is tyrannical and intent upon depriving citizens of their civil liberties.

The article notes that more than two dozen members of the Oath Keepers — including Rhodes — have been charged in connection with the Jan. 6 attack and with the plot to keep then-President Donald Trump in power.

The Oath Keepers has grown quickly along with the wider anti-government movement and used the tools of the internet to spread their message during Barack Obama’s presidency, said Rachel Carroll Rivas, interim deputy director of research with the Southern Poverty Law Center’s Intelligence Project….

ADL said it found the names of at least 10 people who now work as police chiefs and 11 sheriffs. All of the police chiefs and sheriffs who responded to the AP said they no longer have any ties to the group.

When asked about their connection to the group, the men identified by the ADL all twisted themselves into knots distancing themselves. “Who, me? I just wondered what they were about, but never joined/left quickly/don’t recall…”

Right. And I have some not-underwater land in Florida to sell you.

Police departments have long struggled to weed out the inevitable thugs who find the ability to carry a weapon and assert authority very attractive. The larger departments have instituted psychological testing and other mechanisms in an effort to identify and avoid employing those applicants, but they aren’t always successful–and numerous rural and smaller departments lack either the desire or the resources to exclude such individuals.

In the South during Reconstruction, the KKK could often depend upon the local Sheriff–a fellow member– to look the other way when they lynched or brutalized someone. The willingness of today’s law enforcement personnel to become members of the Klan’s “modern version” is disheartening, to put it mildly.

It’s terrifying, to put it accurately.

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P.S.

Yesterday, in addition to the post I planned to share, I accidentally posted what was meant to be today’s blog, about the FBI search of Mar-a-Lago–so today, I’ll just follow up by pointing to some of the rather obvious holes in Trump’s howls about being the focus of a “witch hunt.” (Actually, witches are female–if this investigation really was just political theater, it would be a “warlock” hunt. But I digress.)

Heather Cox Richardson, among others, has joined those reminding folks that federal search warrants require the sign-off of a judge who–after reviewing the evidence provided by prosecutors–agrees that there is substantial probable cause to believe both that a crime has been committed and that a search will provide evidence of that crime.

She also reminded readers that, although the FBI cannot legally release such search warrants, the individual targeted for the search must be given a copy, and is free to release it. If this were truly a “warlock hunt” and the search warrant was evidence of the absence of probative probable cause supporting the search, you can be sure Trump would have released it .

Legal analysts have pointed out that the law also requires the FBI to give Trump an inventory of what they found and confiscated–and according to several reports, agents removed ten boxes of materials found during the search. Those ten boxes were in addition to the fifteen boxes that Trump formerly returned after repeated demands from federal archivists. Trump could also release that inventory if it bolstered his claim that he is being unfairly targeted.

Trump’s retention of all these materials was a clear violation of federal law–but just as clearly, violating federal records law would not have been considered a sufficient violation to support the issuance of a search warrant for a former President’s residence.

Whatever the suspected crime, it ‘s clearly far more serious.

As usual, there has been an unhinged response from the “law and order” Right. As The Washington Post reported,

For months, right-wing agitators with millions of followers have peddled the idea that a moment was coming soon when violence would become necessary — a patriotic duty — to save the republic.

With the FBI search Monday of Donald Trump’s compound in Florida, that moment is now, according to enraged commentators’ all-caps, exclamation-pointed screeds urging supporters of the former president to take up arms. Within hours of the search at Mar-a-Lago, a chorus of Republican lawmakers, conservative talk-show hosts, anti-government provocateurs and pro-Trump conspiracy theorists began issuing explicit or thinly veiled calls for violence.

“Today is war. That is all you will get on today’s show,” right-wing podcaster Steven Crowder announced Tuesday to his nearly 2 million followers on Twitter, referring to the program that goes to his YouTube audience of 5.6 million.

Robert Hubble’s daily letter addressed that hysteria, and the media’s widespread coverage of Trumpist rage. He reminded readers that–despite the avalanche of threats of violence and even civil war on Twitter and other social media platforms –the people leveling those threats represent a small percentage of the American public.

The Post was less sanguine.

If the goal is to normalize vigilante violence as a political response, studies show that the tactic seems to be working.

A recent Washington Post-University of Maryland poll found that about 1 in 3 Americans say they believe violence against the government can at times be justified, the largest share to feel that way in more than two decades. Other studies similarly have found a growing tolerance of violent ideologies that historically were confined to fringe elements.

Hubble wasn’t recommending that we dismiss the threats. As he conceded,

The reaction on the right is serious because of what it says about the unraveling of the Republican Party. The outlandish and unhinged threats (including calls for secession, civil war, dissolution of the FBI, and gutting of the DOJ) show that the Republican Party is opposed to the rule of law and the institutions of state necessary to maintain peace and security. In their opposition to the federal government, Republicans are deadly serious and dangerous—whether Trump wins in 2024 or not.

I am confident that Garland did not err in choosing to execute a search warrant rather than issuing a subpoena. Indeed, given his overly cautious nature, my belief—rank speculation, I admit—is that Trump removed documents vital to national security or military alliances that could be devastating if they fall into the wrong hands.

Every Republican rallying to Trump’s defense must be secretly thinking, “Oh, God! What did he do? I hope it isn’t really bad!” Trump could dispel some of that uncertainty by releasing the search warrant—an omission that must be ominous for Trump’s defenders.

As I said yesterday, stay tuned……

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About That FBI “Raid”

The “usual suspects” are pontificating and Democrats are engaging in what appears to be enjoyable speculation. (Trump has been selling state secrets to the Saudis/Russians/Extra-terrestrials…)

We don’t know.

In fact, we wouldn’t know that the FBI had executed a search warrant at Mar-a-Lago had his Orangeness not begun fundraising off his own announcement of the search. What we do know is that this wouldn’t have occurred absent a really well-documented belief that serious lawbreaking had occurred.

As Josh Marshall recently put it at Talking Points Memo:

The best assumption is the obvious and initial one: we’re dealing with three key players (Garland, Wray and a federal judge) each of whom would bring a distinct and deep-seated resistance to taking such a step absent evidence of serious criminal conduct and specific circumstances which made the need for a surprise search compelling and necessary. That strongly suggests that there is more afoot here than we yet know.

I will note again what I referenced last night. If you read the reports from the biggest national news organizations what is most striking is how little they seem to know. They believe it’s tied to the 15 box document retention investigation which goes back like a year. But even that seems vague and they don’t seem to know much more. As I said above, this isn’t our first rodeo. Usually after an event like this the most sourced reporters are able to put together a pretty full picture pretty quickly. But that doesn’t seem to be happening. At least not based on the stories I’ve read. That speaks to an extreme secrecy uncommon even in the most delicate and politically-charged investigations.

The Wall Street Journal notes that authorization for the raid required approval of the “highest echolons” of the Justice Department.

Before the FBI search, a federal magistrate would have approved a warrant for FBI agents to search the property, indicating investigators may have believed there was additional classified information at the location.

The search also would likely have required signoff from the highest echelons of the Justice Department, including Attorney General Merrick Garland, who was appointed by President Biden, and Christopher Wray, the FBI director appointed by Mr. Trump in 2017, current and former department officials said. A Justice Department spokeswoman declined to comment Tuesday. Mr. Garland has said little publicly about any of the Justice Department’s Trump-related investigations other than noting to reporters that no one is above the law.

One of the most pointed descriptions of the FBI’s execution of its search warrant came from Wired, which reported:

Monday’s search of the former president’s Mar-a-Lago property in Florida was surely one of the most significant, sensitive, and politically explosive actions the US Justice Department and FBI have ever taken. It’s one of a tiny handful of times the DOJ has ever investigated a president. And it’s an action that likely indicates the FBI and prosecutors had specific knowledge of both a definable crime and the evidence to back it up.

The actual search warrant, which would list specific crimes being investigated, has not been released yet. According to Monday night news reports, however, the search focused on questions about a number of boxes of classified documents that Trump took from the White House to his Florida mansion after leaving the presidency.

While it may take months to learn more about the underlying investigation, the fact that the FBI launched such a high-profile search already tells us a great deal about the state of the Justice Department’s case.

Federal search warrants aren’t fishing expeditions. The FBI’s warrant had to be approved at the highest level of both the FBI and the Justice Department, and approval would have required substantial evidence of probable cause. The Journal acknowledged that previous FBI scandals have made the bar for probable cause and sign-off by the department’s upper levels even higher.

The Justice Department’s 2016 decision not to prosecute Hillary Clinton for her sloppy handling of classified materials as secretary of state raises the bar for any prosecution stemming from Trump’s handling of classified documents….which means that in order to pursue this Trump investigation, there would have to be more serious (and criminal) concerns than there were in the investigation of Clinton.

Thus, we’re left with the big question the FBI is ultimately trying to investigate right now: Who would have benefited from Trump taking home these particular documents—and why?

As the Wired article concludes :

Wray, Garland, and Deputy Attorney General Lisa Monaco have made it clear throughout their careers and public statement that they are institutionalists. Far from being aggressive, partisan investigators, all three have shown themselves over the past 18 months to be reserved, careful, and legally and evidentiarily conservative.

The bottom line of Monday’s search is that the FBI and the Justice Department must have been inordinately clear that they had the goods—and someone’s legal trouble is just beginning.

Stay tuned…

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History Versus Mythology

Speaking of history…

Over the past few years, I’ve read a lot of American history–most of which I hadn’t encountered in high school or college history classes. (One unfortunate result is that I no longer get goose bumps when I hear the national anthem; the people opposing the teaching of accurate history aren’t entirely wrong about its potential to dampen jingoism…)

Accurate history can be depressing, but grown-ups can deal productively with the gap between the country’s values and aspirations and our past failures to live up to them. As I argued yesterday, understanding actual history allows us to address the inaccurate mythologies that continue to warp contemporary political discourse.

In a recent essay for The Conversation, my friend Pierre Atlas–a political scholar, gun owner and NRA member who stresses he hasn’t donated to the organization since 1997– examined effects of widely-accepted myths about the Old West on today’s policy debates. I encourage you to click through and read the article in its entirety, but I’m sharing passages I found particularly illuminating.

Pierre began by recognizing the partisan divide over “gun rights” and the effect of that divide on the recently passed–and widely hailed–“bipartisan” gun legislation.

In the wake of the Buffalo and Uvalde mass shootings, 70% of Republicans said it is more important to protect gun rights than to control gun violence, while 92% of Democrats and 54% of independents expressed the opposite view. ..

In order to attract Republican support, the new law does not include gun control proposals such as an assault weapons ban, universal background checks or raising the purchasing age to 21 for certain types of rifles. Nevertheless, the bill was denounced by other Republicans in Congress and was opposed by the National Rifle Association.

What is the wellspring of this widespread gun fetish?

My analysis finds that gun culture in the U.S. derives largely from its frontier past and the mythology of the “Wild West,” which romanticizes guns, outlaws, rugged individualism and the inevitability of gun violence. This culture ignores the fact that gun control was widespread and common in the Old West…

Americans have owned guns since colonial times, but American gun culture really took off after the Civil War with the imagery, icons and tales – or mythology – of the lawless frontier and the Wild West. Frontier mythology, which celebrates and exaggerates the amount and significance of gunfights and vigilantism, began with 19th-century Western paintings, popular dime novels and traveling Wild West shows by Buffalo Bill Cody and others. It continues to this day with Western-themed shows on streaming networks such as “Yellowstone” and “Walker.”

Historian Pamela Haag attributes much of the country’s gun culture to that Western theme. Before the middle of the 19th century, she writes, guns were common in U.S. society, but were unremarkable tools used by a wide range of people in a growing nation.

Pierre explores the effects of gun-makers’ PR campaigns, which romanticized guns and their role in the settling and taming of the West. Contrary to that invented mythology, he found that–while gun ownership was common– actual gunfights were rare, and that many frontier towns “had strict gun laws, especially against carrying concealed weapons.”

As UCLA constitutional law professor Adam Winkler puts it, “Guns were widespread on the frontier, but so was gun regulation. … Wild West lawmen took gun control seriously and frequently arrested people who violated their town’s gun control laws.”

“Gunsmoke,” the iconic TV show that ran from the 1950s through the 1970s, would have seen far fewer gunfights had its fictional marshal, Matt Dillon, enforced Dodge City’s real laws banning the carrying of any firearms within city limits.

Pierre notes that NRA hardliners are willing to accept gun violence as an inevitable side effect of a free and armed but violent society. Their opposition to new gun reforms as well as the current trends in gun rights legislation – such as permitless carry and the arming of teachers – are but the latest manifestations of American gun culture’s deep roots in highly inaccurate frontier mythology.

Wayne LaPierre, executive director of the National Rifle Association, the country’s largest gun rights group, tapped into imagery from frontier mythology and American gun culture following the Sandy Hook massacre in 2012. In his call to arm school resource officers and teachers, LaPierre adopted language that could have come from a classic Western film: “The only thing that stops a bad guy with a gun is a good guy with a gun.”

Recent studies actually show that giving those “good guys” concealed carry permits is linked to 13-15 percent higher violent crime rates–and accurate history confirms that the only thing that can stop a bad guy with a gun is rational gun regulation.

Those shoot-em-up Westerns were fun when we were children, but it’s past time for Americans to grow up.

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