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FOX News contributor Andy McCarthy reacts to Thursday's January 6th Committee hearing: "The last thing that Representative Cheney did was point out is that Jeff Clark took the Fifth when he was asked the same questions that they were asking the witnesses. If a prosecutor brought that out in a trial, that would be a mistrial. That's like a basic constitutional due process violation. For the life of me, I continue not to understand not only why this committee would not present a different perspective when they have witnesses that could clearly deal with cross examination if there were cross examination. And then why do this very powerful presentation, which I think this last hour certainly was, and then at the end point out that people are taking the Fifth Amendment which they have a constitutional entitlement to do and the courts have said if you let that infect a fact-finding proceeding, it's a constitutional violation. I don't understand it."

Originally posted here:
Andy McCarthy: Cheney Pointing Out A Witness Taking The Fifth Amendment Is A Basic Constitutional Violation - RealClearPolitics

FLINT, MI -- One way or another, Rick Snyder will answer questions under oath about his role in the Flint water crisis in a federal courtroom on June 30.

And if, as expected, the former governor invokes his Fifth Amendment right not to incriminate himself, attorneys involved in the civil bellwether trial will turn to the next-best thing -- hours of previously unheard videotaped deposition testimony given by Snyder two years ago.

Attorneys for Veolia North America said Wednesday, June 22, that they intend to call Snyder to the witness stand on June 30 and an attorney for Snyder told MLive-The Flint Journal that his client will be present but has been advised not to answer questions.

Snyder is among nine indicted current and former city and state employees facing criminal charges tied to the water crisis. Five of those nine have also been called as witnesses in the civil trial that started 19 weeks ago in U.S. District Court in Ann Arbor.

Snyder and the four other potential witnesses were ordered to appear in court and to answer questions they were asked during their depositions by Judge Judith E. Levy, but each has appealed her decision to the U.S. Court of Appeals.

The Sixth Circuit Court of Appeals has scheduled oral arguments on the issue of whether the five men waived their Fifth Amendment rights when they sat for depositions but not until late July when the civil trial is expected to have concluded.

Attorneys for Snyder, former Flint emergency managers Gerald Ambrose and Darnell Earley, former Snyder aide Richard Baird, and former Flint Department of Public Works Director Howard Croft have said their clients will invoke the 5th Amendment when called to testify unless required to by the Court of Appeals.

Each of the five testified in depositions before they were charged with crimes in January 2021.

The civil case Levy is presiding over involves four Flint children who have sued Veolia and Lockwood, Andrews & Newnam for professional negligence.

The companies each advised the city during the water crisis, and attorneys for the children claim they are partially responsible for injuries their clients suffered after drinking Flint water, which had elevated levels of lead.

Veolia and LAN dispute the childrens injuries and have said government officials like Snyder are solely responsible for any damages they suffered.

Snyders testimony -- in person or through the use of his deposition -- should provide new information about the former governors knowledge of the extent of problems with Flints water system while he led state government in 2014 and 2015.

Hes said previously that the water crisis was a failure of government at all levels but has only publicly answered detailed questions about the situation in an appearance before the U.S. House Committee on Government Oversight and Reform six years ago.

In that testimony, Snyder said he was repeatedly assured by state environmental officials that Flints water was safe to drink even as residents insisted something was wrong with its color, taste and smell after the citys water source was switched from Lake Huron to the Flint River for 17 months in 2014 and 2015.

An expert at the U.S. Environmental Protection Agency tried to raise an alarm about the potential for lead contamination in the water system but was silenced, and Snyder has said he only learned that our state experts were wrong (and) Flints water had dangerous levels of lead in October 2015.

Attorneys for the companies are particularly interested in putting Snyder and the other criminal defendants in front of the jury because their answers, including their refusal to testify, can be considered as jurors determine what degree of responsibility -- if any -- the consultants have for damages related to the water crisis.

Levey said earlier this month that she plans to handle that questioning of Snyder as she did when Ambrose and Croft appeared in court -- outside the presence of the jury -- invoking their 5th Amendment rights, and triggering the playing of their videotaped depositions for the jury.

On Wednesday, a part of Earleys deposition was also played for the jury, and the judge has said Ambrose, Croft, Earley, Baird and Snyder will each be required to appear in person with the jury present to tell them they wont answer questions that could later be used against them in their criminal cases.

Ambrose is expected to be the first of the five to appear before Levy with the jury present on Tuesday, June 28.

Snyder was charged in January 2021 with two misdemeanor counts of willful neglect of duty. His case is pending in Genesee District Court.

Earlier this month, a Veolia spokesman said the company was committed to bringing to the stand indicted officials such as Governor Snyder, former (Flint) Emergency Manager Darnell Earley, and other government officials so that Flint families and the public can finally hear the truth.

Read more at The Flint Journal:

Snyder can refuse to answer Flint water questions but only in front of jury

Former Flint water consultant vows to deliver Snyders testimony

Court of Appeals will hear Snyders arguments not to testify in Flint water case

Excerpt from:
Snyder to appear before Flint water crisis jury on June 30. Heres what to expect - MLive.com

On Tuesday, members of the Crow Tribe filed a lawsuit in D.C. District Court against the United States Department of the Interior, its Secretary and the Assistant United States Secretary of the Interior for Indian Affairs alleging violations of the Administrative Procedures Act, the Due Process Clause of the Fifth Amendment and breach of fiduciary duty.

According to the complaint, the Crow Tribe is a federally recognized tribe in eastern Montana. Further, the complaint states that the 1920 Crow Allotment Act places Crow reservation lands into individual tracts to be held in trust by the United States for every enrolled member of the Crow Tribe. The complaint purports that under the Crow Allotment Act and the federal common law Winters Doctrine members of the Crow Tribe are also allotted a portion of the Crow Reservations water rights to irrigate practicably irrigable acres.

The complaint further states that in 2010 Congress passed the 2010 Settlement Act which abandoned the water rights allotted to Tribe members and required the Tribe to adopt a Tribal Water Code, including a licensing and permitting system governing the allocation and distribution of water rights. The Tribe members purports that once a tribal Water code has been adopted the Secretary of the Interior is required to approve the tribal water code within a reasonable period of time after the Tribe submits it to the Secretary.

However, the complaint states that the Crow Tribe has never adopted a Tribal Water Code and thus the Tribes members have been deprived of their water rights under the Winters Doctrine without due process of law, just compensation, or for a public purpose as required by the Fifth Amendment.

Additionally, the Tribe members argue that the United States has breached its fiduciary duty to protect the Crow Tribe and its members allotments and interests under the Winters Doctrine. The Tribe members argue that the United States has breached its fiduciary duty and has been subject to egregious conflicts of interest with respect to its duty to the Tribe.

Accordingly, the complaint states that on May 15, 2014, Crow Tribe members filed a lawsuit seeking broad equitable relief, including declaratory and injunctive relief, against the Interior Department for violations of the fiduciary obligations of the United States. However, the complaint states that the Montana Water Court, the Montana Supreme Court, the District Court for Montana and the Ninth Circuit Court of Appeals denied the Tribe members objects and complaints stating that the Tribe members failed to assert a claim on which relief could be granted.

Nonetheless, Tribe members filed the present lawsuit seeking declaratory judgment that the 2010 Crow Settlement Act is void, the Tribe members have water rights under the Winters Doctrine and that the United States breached its fiduciary duty to the Crown Tribe members. The plaintiffs are represented by Barnhouse Keegan Solimon & West LLP, and the Law Offices of Thomas E. Luebben PC.

More here:
Members of the Crow Tribe Sue Department of the Interior Seeking to Void 2010 Settlement Act - Law Street Media

One of the biggest fears that 3Ls have, in addition to flunking the bar exam, is flunking the character and fitness assessment for admission to the bar. This requirement may well be a reason those in law school and who have already graduated are reluctant to seek mental health services for fear of being rejected for admission on those grounds. And if that is the case, for even one law student or law school graduate, it is one too many.

The Legal Profession Blog reports on two changes that the Supreme Court of Ohio is considering.

Presently included in the fitness evaluation is whether there is any evidence of mental or psychological disorder that in any way affects or, if untreated, could affect the applicants ability to practice law in a competent and professional manner. The proposed rule change would eliminate that from an extensive list of factors when considering character and fitness for admission. A good first step that hopefully other jurisdictions will follow. For way too long, getting help for whatever reasons at whatever point in time, mental health concerns have been seen as a sign of weakness, both pre-bar admission and post. Too many deaths by suicide, so many cases of depression and substance abuse, and other mental health concerns may be changing that view or, at least, raising long overdue awareness. Not a moment too soon.

Another change that the Ohio Supreme Court proposes is to add as prohibited criteria to consideration of fitness to practice gender, sexual orientation, and marital status. Existing prohibited criteria already include age, race, color, national origin, and religion. Good idea to expand the prohibitions since, since I didnt know that any of those listed have anything to do with the ability to practice law.

Maybe, just maybe, our profession needs to open our eyes to the possibility that good lawyers, those who make a positive difference in society, can come from all sorts of backgrounds and not just from the traditional go to college, go to law school, pass the bar, and start practicing wherever you can land a job. There are those who have been incarcerated, graduated law school, passed the bar, and are practicing.

Maureen Oyenlobi, who is serving a life sentence, starts at ABA-approved Mitchell Hamlines online law school this fall. Convicted under Minnesotas felony murder rule, her appeals have been repeatedly denied while the shooter was sentenced to only 40 years and is eligible for parole. Disparity in sentencing based on sex? Nope, the felony murder rule is apparently at play here. I would bet that Oyenlobi will have a better understanding of the Constitution than certain others.

Did anyone watch John Eastmans testimony, if you could call it that, before investigators of the House January 6 Committee? He invoked the Fifth Amendment scores of times and apparently asked Rudy Giuliani to see if the outgoing president would consider him for a pardon. Pardon me. The transformation of Eastman from an exuberant rah-rah lets go on January 6, 2021, to the schlubby-looking dude sitting next to his counsel during his testimony was a study in contrasts. Perhaps he realized when testifying that he now has a deck chair on the Titanic. Eastman has apparently been kicked to the curb by our former prez. Cheer up, you are not the first one to be so treated and undoubtedly not the last. Just ask other attorneys that Trump has treated similarly over time. Does the name Rudy Giuliani come to mind?

Didnt anyone ever tell Eastman that a lawyer should not get involved in the clients mishigas? You advocate for the clients position (if and only if its grounded in law or a reasonable extension thereof and always fret about the possibility of Rule 11 sanctions). Where has Eastman been for the past decade or so? Didnt he know or shouldnt he have surmised that the words the former prez lives by are whats in it for me?

I am always amused, if thats the right word (and I am not sure it is), that peeps who think they can trash the Constitution when it serves their purposes are the first in line to claim rights (such as the Fifth, and Im looking at you, Eastman) when needed. Its akin to the person who kills both parents and asks for mercy from the court because hes an orphan.

The State Bar of California is investigating Eastman. With any luck at all, he will be enshrined in the State Bar rogues gallery of bad boys, along with Tom Girardi and Michael Avenatti. And please dont tell me that its the water in SoCal that these guys drank. We dont have any.

Considering the emotional testimony of the disgusting and unwarranted harassment of the two Georgia election volunteer workers, there is no such thing as the Golden Rule in Trumpland, nor would I expect there to be, nor is there any shame there in using whatever tactics are available on the theory that the ends justify the means. As bad as the conduct of Girardi and Avenatti has been, I hope the State Bar disbars Eastman for his conduct in trying to overturn the Constitution to suit one mans rapacious needs. If not disbarred, then the oath we all have taken to support the Constitution will have been an empty one.

Jill Switzer has been an active member of the State Bar of California for over 40 years. She remembers practicing law in a kinder, gentler time. Shes had a diverse legal career, including stints as a deputy district attorney, a solo practice, and several senior in-house gigs. She now mediates full-time, which gives her the opportunity to see dinosaurs, millennials, and those in-between interact its not always civil. You can reach her by email at oldladylawyer@gmail.com.

See more here:
From Admission To Discipline And The Choices We Make In Between - Above the Law

At least half a dozen Republican members of Congress sought pre-emptive pardons from President Donald J. Trump as he fought to remain in office after his defeat in the 2020 election, witnesses have told the House Jan. 6 committee, the panel disclosed on Thursday.

Mr. Trump had hinted at a blanket pardon for the Jan. 6 thing for anybody, Mr. Trumps former head of presidential personnel, Johnny McEntee, testified.

Representative Matt Gaetz, Republican of Florida, appeared to ask for a broad pardon, not limited to his role in Mr. Trumps effort to reverse the outcome of the election. Mr. Gaetz even invoked the pardoned former President Richard M. Nixon as he did so, Eric Herschmann, a White House lawyer for Mr. Trump, testified.

He mentioned Nixon, and I said, Nixons pardon was never nearly that broad, Mr. Herschmann recounted.

Representative Mo Brooks of Alabama sent an email seeking a pre-emptive pardon for all 147 members of Congress who objected to the certification of Joseph R. Biden Jr.s Electoral College win.

A former adviser to Mark Meadows, Cassidy Hutchinson, testified that Mr. Gaetz, Representative Louie Gohmert of Texas, Representative Scott Perry of Pennsylvania and Representative Andy Biggs of Arizona all expressed interest in pardons.

She also testified that Representative Jim Jordan of Ohio talked about pardons but did not directly ask for one, and that she heard of newly elected Representative Marjorie Taylor Greene of Georgia also expressing interest to the White House Counsels Office.

Taken together, the former White House aides portrayed members of Congress concerned about potential exposure to prosecution in the wake of their support for Mr. Trumps attempts to stay in power. And the accounts provided an extraordinary, under-penalty-of-perjury portrait of efforts to use a presidents broad clemency powers for nakedly political purposes.

In a statement, Mr. Perry denied seeking a pardon. I stand by my statement that I never sought a presidential pardon for myself or other members of Congress, he said. At no time did I speak with Miss Hutchinson, a White House scheduler, nor any White House staff about a pardon for myself or any other member of Congress this never happened.

Ms. Greene posted a clip of Ms. Hutchinson on Twitter and added: Saying I heard means you dont know. Spreading gossip and lies is exactly what the January 6th Witch Hunt Committee is all about. Mr. Gohmert also denied making such a request, and condemned the committee for how it has comported itself. Mr. Biggs similarly said that Ms. Hutchinson was mistaken, and that her testimony was edited deceptively.

Mr. Gaetz did not respond to a request for comment.

Mr. Brooks confirmed seeking a pardon, but said it was because he believed the Justice Department would be abused by the Biden administration. He released the letter he sent the White House, in which he said he was putting the request in writing at the instruction of Mr. Trump.

The fact that it had evidence that pardons were under discussion was previewed by the committee at an earlier hearing. And the panel previously revealed that a key figure in Mr. Trumps efforts to subvert the results of the election, the conservative lawyer John Eastman, had emailed another Trump lawyer, Rudolph W. Giuliani, after the Capitol riot, asking to be on the pardon list, if that is still in the works.

Mr. Eastman appeared before the committee and invoked his Fifth Amendment right against self-incrimination repeatedly.

It is unclear whether Mr. Gaetzs reported request for a blanket pardon was driven by concerns about his attempts to overturn the election or other potential criminality. At the time Mr. Gaetz made the request, he had just come under Justice Department investigation for sex-trafficking a minor. He has not been charged.

The question of who was getting pardons, and for what, was a source of enormous consternation in the final days of the Trump White House. The House select committee is using the information about the pardons to describe a broader effort to protect people who carried out Mr. Trumps desires.

In his final weeks, Mr. Trump randomly offered pardons to former aides who were jarred because they were not sure what he thought they had done that was criminal, two former officials have said.

Among the concerns that Mr. Brooks cited was that he and other Republicans would be targeted by an incoming Justice Department, as he asked for pardons for the objectors to the certification, as well as supporters of a lawsuit Mr. Gohmert filed to pressure Vice President Mike Pence to reject Mr. Bidens win on Jan. 6.

The White House Counsels Office and Mr. Herschmann argued strenuously against the pardons for members of Congress, and Mr. Trump did not grant them.

With only hours left in office, Mr. Trump issued a pardon to Stephen K. Bannon, his former White House adviser, wiping out federal charges that accused Mr. Bannon of defrauding political donors who supported building a border wall that Mr. Trump had pushed for.

In the weeks that preceded the pardon, Mr. Bannon had taken an active role in trying to keep Mr. Trump in office by promoting his claims of fraud. He also helped to devise a plan later known as the Green Bay Sweep to persuade members of Congress to block the normal counting of Electoral College votes by repeatedly challenging the results in various swing states.

Mr. Trump also gave pardons to his allies who were targets of the investigation into whether his campaign conspired with Russian officials in 2016. Some of them were supporters who also backed and amplified his efforts to stay in power.

One was Michael T. Flynn, the former national security adviser, who had pleaded guilty to charges of lying to the F.B.I. about his dealings with a Russian diplomat. The case was later dropped over concerns about procedural issues.

Over the weeks after his pardon around Thanksgiving in 2020, Mr. Flynn appeared at so-called Stop the Steal rallies, speaking in support of Mr. Trumps baseless claims that the election had been stolen. Working with others like the business executive Patrick Byrne and the pro-Trump lawyer Sidney Powell, Mr. Flynn also promoted an effort to persuade Mr. Trump to use his national security apparatus to seize voting machines across the country in a bid to eventually rerun portions of the election.

In late December 2020, Mr. Trump granted a pardon to Roger J. Stone Jr., a longtime ally and informal adviser, who had been investigated in connection with the Russia inquiry and maintained his innocence. That move came five months after Mr. Trump commuted Mr. Stones 40-month sentence stemming from his conviction on charges of obstructing a congressional investigation into Mr. Trumps 2016 campaign and possible ties to Russia.

Much like Mr. Flynn, Mr. Stone used social media and speaking engagements at Stop the Steal rallies to amplify and bolster Mr. Trumps false claims about the election. Mr. Stone has adamantly denied that he had any personal role in fomenting the violence that day.

Luke Broadwater contributed reporting.

See the original post here:
Panel Provides New Evidence That G.O.P. Members of Congress Sought Pardons - The New York Times