I've been reading, writing, and tweeting about the Michael Flynn prosecution quite a bit lately, and I've been getting significant feedback from people who strongly dislike Flynn and think he's about to get away with committing a serious crime due to sinister political machinations behind the scenes. As explained in this post, I take no strong position on Flynn's character or whether he did or did not commit any crimes—most Americans have, so he'd be in good company. But I think many in the "lock him up" crowd are making two fundamental errors that are in urgent need of correction.
Those errors, which turn out to be inextricably intertwined, are: (1) Flynn is plainly guilty of lying to FBI agents, so the attorney general's motives in dropping the case against him must necessarily be suspect; and (2) given the character of the defendant and the alleged crime, the Flynn case must necessarily be a poor vehicle for spotlighting the pernicious role of coercive plea bargaining in our criminal justice system—as Pulitzer-Prize-winning columnist George Will did yesterday. As explained below, these errors are momentous, and they have been embraced by many influential bloggers, law professors, and other opinion leaders who help shape public perceptions about the legal system. I hope some of them will see this post and read it in the spirit of good will with which it is offered.
The first point—that the decision to drop the Flynn prosecution must necessarily have been made for crass political reasons—appears to be based on an incomplete understanding of the evolving fact record together with uncharacteristic confidence in the integrity of a coerced plea. The essential facts are these:
Michael Flynn was charged with making false statements to FBI agents during a January 24, 2017 interview at his White House office regarding conversations Flynn had had in the preceding weeks with Russian Ambassador Sergey Kislyak. (Flynn was also charged with making false statements in connection with certain filings under the Foreign Agents Registration Act, but I'll put that to one side for now; among other things, Flynn never pleaded guilty to those crimes, and DOJ's attempt to prosecute another high-profile figure, Gregory Craig, for similar violations failed miserably and would likely have failed against Flynn as well.)
Represented by lawyers from the large D.C. law firm Covington & Burling (who it now appears had a serious conflict of interest), Flynn initially asserted his innocence. Crucially, Flynn's attorneys pressed the prosecutors from the Special Counsel's Office to turn over the memorandum of interview or "302" prepared by the agents who questioned him regarding his communications with Kislyak. Throughout November 2017, SCO prosecutors repeatedly rebuffed those requests even as they ratcheted up the pressure on Flynn to plead guilty in exchange for a recommendation of no jail time. But Flynn continued to maintain his innocence, and his attorneys continued pressing for production of the 302 and other discovery—which the government continued to withhold.
It has been reported, credibly in my judgment, that the stalemate was brought to a head when the SCO leaked to certain reporters that a guilty plea from Flynn would ensure that Flynn's son, who was under investigation as Flynn senior's business partner (and also happened to be the father of Flynn senior's four-month-old grandchild) would not be prosecuted. This is the sort of despicable tactic one associates with tyrants and dictators; but to our infinite discredit, it appears to have become a routine feature of American prosecutions as well.
In any event, we do know that something caused Flynn to suddenly change his mind in late November of 2017 and agree to plead guilty to a single charge of lying to FBI agents. He signed a "statement of the offense" to that effect (along with the alleged FARA violations) on November 30, and appeared in court to enter his guilty plea—on the charge of lying to FBI agents only—the next day, December 1, 2017.
Notably, despite having pleaded guilty more than two years ago, Flynn has not yet been formally convicted of that crime because the conviction does not technically happen until the sentence is pronounced. And for various reasons, that has not happened yet.Read the rest of this post »
Last week in this space I noted that many businesses are faced with puzzling dilemmas as they try to reopen with social distancing without running afoul of the Americans with Disabilities Act. One issue I didn’t mention: if they require the wearing of face masks as a condition of entering the premises, they may run into some customers who claim to have non‐obvious disabilities which entitle them, as an accommodation under the ADA, not to have to wear a mask. Even if they strongly suspect such a customer of pulling a fast one, it may seem the less risky legal course just to back off, given that the law confers on business no right to demand medical documentation.
One issue I did mention last week is that the ADA creates legal risks should a business screen those who enter the premises for fever using some method such as a contact‐free temperature gun. (Amazon announced last month that it was checking more than 100,000 employees a day this way, and checks at store entrances are familiar in some Asian countries.) Two new articles make it clear that this is one of those situations where you can look forward to being sued if you do and sued if you don’t.
Consider first a Slate article arguing against legislation to protect businesses from lawsuits related to COVID-19. The gist of its argument is that we already have a litigation system under which “liability is not likely to present a huge problem” or pose “burdensome difficulties” for businesses that “take reasonable action to keep their customers safe.” Welcome news, and so simple too!
But now that you think of it, how do we identify in hindsight a business whose safety efforts have fallen short of what is reasonable? The Slate article has some ideas on that:
A business that might be considered to have properly reopened can still find itself liable to customers for failure at the level of implementation of whatever safety protocols are required. …. what if a reasonable business would do more, such as taking the temperature of each customer as they enter the business? (Even though that’s not being widely done in the United States right now, it’s an easy precaution to take — and can at least bring down the rate of transmission.)
In sum, then, if someone sues you claiming to have contracted the virus at your business establishment, and their lawyer’s main theory is that you should have been doing front‐door temperature checks, Slate is going to nod and say the system is working as it should.
Meanwhile, the New York Times reports that the venerable American Civil Liberties Union has issued a new report that is strenuously critical of temperature‐sensing technologies as a screen against contagion in public places, even when done by businesses on private property. (You may wonder how the ACLU came to see pushing back against private business practices as part of its mission — especially when it lets slide so much rights‐mangling activity by governments — but that’s another, and sadder, story.)
The ACLU report makes much of various facts that hardly anyone disputes — temperature sensors are far from ideally accurate, some people return “hot” results who do not have COVID-19 while others who do have it are not running a fever, and so forth. The argument for sensors has never been that they are perfect, but that by detecting at least some potentially contagious arrivals, they shift the odds and thus reduce overall spread of the disease in conjunction with de‐crowding, mask use, and other measures. The report concludes that temperature sensing should go forward only if public health authorities affirmatively call for its use, and it flags possible theories, from data privacy to disparate racial impact, by which lawyers might trip up unwary businesses that go forward with it absent such a mandate.
In its wisdom, the American legal system does not give you a way to avoid legal exposure, with all its costs and miseries — but at least it gives you some choice as to which set of lawyers you will have to face off against.
For the last few weeks, I’ve been detailing the ongoing developments in the Supreme Court’s qualified immunity docket. About three weeks ago, I described how the Court had scheduled thirteen different qualified immunity petitions for its May 15th conference, including several petitions calling for qualified immunity to be reconsidered entirely. But then last week, I noted that the Court had unexpectedly “rescheduled” ten out of those thirteen cases, leaving only three for consideration on May 15th. Well, today the Court issued orders from last week’s conference, and there are two major developments.
First, the bad news: The Court denied cert in the three cases that it considered last week — Kelsay v. Ernst, Jessop v. City of Fresno, and Clarkston v. White — without comment from any of the Justices. This is disappointing, because the Kelsay and Jessop cases in particular involved especially egregious applications of qualified immunity that were crying out for correction, if not summary reversal. In Kelsay, the Eighth Circuit, in an 8–4 en banc decision, granted immunity to a police officer who grabbed a small woman in a bear hug and slammed her to ground, breaking her collarbone and knocking her unconscious, all because she walked away from him after he told her to “get back here.” And in Jessop, the Ninth Circuit granted immunity to police officers who were alleged to have stolen $225,000 in cash and rare coins while executing a search warrant, just for their personal enrichment. By denying cert in these cases, the Supreme Court ensured that these victims would be left without redress for their injuries, and that the police who committed such flagrant misconduct will avoid any liability for their misdeeds.
Second, the good news: The Court also rescheduled the remaining ten qualified immunity petitions for consideration at its conference this Thursday, May 21st. This means that, barring additional rescheduling, we should get orders on these petitions on Tuesday, May 26th (the day after Memorial Day). Most notably, the cases set for consideration this week include Baxter v. Bracey, Zadeh v. Robinson, and Corbitt v. Vickers, which are the three petitions explicitly calling for qualified immunity to be reconsidered entirely. Thus, the fact that the Justices denied the three petitions today doesn’t necessarily mean they aren’t still interested in revisiting qualified immunity. If anything, the fact that the Court rescheduled the biggest three cases may indicate that the Justices are more interested in addressing this larger question, rather than taking a narrower approach.
Ultimately, it’s hard to say with confidence exactly why the Court decided to approach all of these petitions in the way that it did. I still don’t have a great explanation for why the Court chose to carve out Kelsay, Jessop, and Clarkston for earlier resolution than the other cases. And given the number of unexpected reschedulings we’ve already seen, it’s entirely possible the Court decides to push back some or all of these cases yet again. But for now, it looks like this Thursday is the day the Justices will finally confront the question of whether qualified immunity itself should be reconsidered — and next Tuesday is the day we’ll learn what they decided.
The Intelligence Community’s annual Statistical Transparency Report was released earlier this month, and there’s a significant piece of news buried in a footnote: On at least six occasions in 2018 and once in 2019, the government unlawfully reviewed wiretapped communications from a foreign intelligence database while pursuing ordinary criminal investigations unrelated to national security—something the previous year’s report claimed had never happened. The disclosure validates civil libertarian concerns about so‐called “backdoor searches”: The use of broad foreign intelligence authorities nominally aimed at non‐Americans outside the country to monitor Americans’ communications, circumventing the normal constitutional warrant process.
First, some context. Section 702 of the Foreign Intelligence Surveillance Act, which Congress created in 2008, permits the National Security Agency to obtain sweeping general warrants from the secretive FISA Court, under which they may intercept the communications of non-U.S. persons who are outside the country without individualized authorization. This effectively codified an extralegal wiretapping program secretly approved by President George W. Bush shortly after the 9/11 terror attacks in 2001. Traditionally, when intelligence agencies conducted wiretaps inside the United States, they needed a particularized warrant naming a specific target as long as one end of the communication was American. But §702 loosened the rules: Now instead of individualized warrants, the government asks the FISA Court to sign off on general “targeting procedures” used to select foreign targets located abroad. The communications of those targets can then be intercepted as they pass through American networks, including their communications with American citizens protected by the Fourth Amendment.
From the outset, civil libertarians have been worried that such an authority would inevitably vacuum up enormous quantities of Americans’ communications, even if wiretap “targets” were foreign. The incredible scale of collection virtually guarantees that’s the case: Last year the number of foreign §702 targets rose to an astonishing 204,968 (up from 164,770 in 2018). This massive cache of intercepts creates a tempting means of bypassing the ordinary warrant process for criminal investigations: Simply search for a U.S. person’s e‐mail address, phone number, or other identifier in the §702 database.
Backdoor searches are quite common. We know that agencies other than FBI (which in effect means NSA and CIA) searched the database for U.S. person identifiers and reviewed intercepted contents as a result 9,126 times last year. FBI doesn’t count how frequently they query the database, but they’re now required to obtain a court order before actually reviewing U.S. person communications for criminal investigative purposes unrelated to national security. Until this most recent report, the government claimed that this had never happened. But the 2020 report discloses a number of recently discovered instances in which they did just that: One in 2016 (before the warrant requirement was added), six in 2018, and one in 2019—that we know of, at least.
While it’s good these instances were belatedly detected, this disclosure underscores the problem of giving FBI, which has dual law enforcement and intelligence responsibilities, such poorly monitored access to the fruits of §702’s general warrants. Unlike other agencies, FBI is not required to report how often they query the §702 database for U.S. person identifiers—though by their own admission, they do so far more often than their peers.
Congress should conduct vigorous oversight over how these unlawful searches occurred—and remove the exemption that spares FBI from having to tally their searches for Americans in this enormous database. The loophole exists because FBI says their systems aren’t designed to track the necessary information… a design choice that makes compliance problems like the ones newly disclosed more likely, and harder to catch when they occur.
As Yogi Berra famously said, “it’s tough to make predictions, especially about qualified immunity.” Or something like that. Two weeks ago, I discussed how the Supreme Court had scheduled thirteen different cert petitions for its May 15th conference. Several of these petitions had been fully briefed and ready for resolution since last October, so it looked like the Court was finally gearing up to confront the fundamental question of whether qualified immunity should be reconsidered entirely.
George Will further discussed that development this week, describing how qualified immunity “has essentially nullified accountability for law enforcement and other government officers” and urging the Supreme Court to “rethink the mistakes it made regarding qualified immunity.” He also noted how the Cato‐led cross‐ideological amicus briefs filed in several of the major cases “represent an astonishing ideological diversity” and “have helped to bring qualified immunity’s consequences to the attention of the court.”
But it looks like the Court may be preparing to punt on this question yet again. In the last few days, the Court has rescheduled ten of the thirteen cases that were originally set to go to conference today. (“Rescheduled” here is a bit of a misnomer, because the Court hasn’t yet indicated when they’ll actually consider these petitions — it’s more like an indefinite postponement.) The cases that got rescheduled include all three petitions that explicitly ask the Court to reconsider qualified immunity, and in which Cato organized or filed cross‐ideological amicus briefs — those three cases are Baxter v. Bracey, Zadeh v. Robinson, and Corbitt v. Vickers. Thus, it looks like we’ll have to wait a little longer to learn whether the Court intends to take up this question.
Curiously, however, the Court did not reschedule the cert petitions in Kelsay v. Ernst, Jessop v. City of Fresno, or Clarkston v. White, which means those petitions will go to conference today. It’s honestly hard to say why the Court would want to make a decision about the petitions in these three cases, but not any of the others. The petitions in Kelsay and Jessop both raise important questions about clarifying and reining in the worst excesses of the “clearly established law” standard, but then, so do the petitions in some of the other cases that got rescheduled. It’s possible that the Court wants to start with some of the narrower QI questions, short of reconsidering the doctrine entirely, and prefers one or more of these three cases as vehicles. Or it’s possible that, for whatever reason, the Court is confident about denying cert in these three cases, but wants to continue the other cases at a future date. It’s also possible that there’s no real rhyme or reason to this decision, and the Court might simply “relist” one or more of these three cases, which would have the same practical effect going forward as rescheduling them.
In short, we really can’t say with confidence why the Court made the scheduling decisions it did this week, nor is it at all clear what will come out of next Monday’s orders with respect to these three cases. But two things do remain certain: first, the Court is paying very close attention to its qualified immunity docket, and second, qualified immunity is desperately in need of reconsideration.
Around much of the country retail stores and small businesses are struggling with how to reopen, or carry on operations online, consistent with public health recommendations on social distancing and protection of customers and workers. And as they do they find their task complicated in many ways by the requirements of the Americans With Disabilities Act (ADA) and related state laws. So I conclude from an advice column by Minh Vu and John Egan of the law firm Seyfarth Shaw. Some questions:
* Can you make customers wait outside, and if so how? Under one format commonly approved for reopening, stores must close all but one entrance and have someone watch that entrance to make sure the number of customers does not exceed a given capacity. Once the maximum is reached, customers waiting for admittance need to stand outside in distanced lines. Unfortunately, under the ADA, if only one of multiple entrances is accessible, that one must be used, even if it’s hard to watch, isn’t good for spacing people out, or is exposed to the rain. “Customers with physical disabilities who cannot stand for long periods may ask to go to the front of the line as a reasonable modification. Businesses may be reluctant to allow this as the claimed disability may not be obvious and the request may be fraudulent.”
* Can you take customers’ temperatures before letting them in? Some big U.S. employers already use non‐contact forehead temperature guns to check arriving employees for fever, and in places like Singapore such methods are also common for customers entering stores. Although the devices have been criticized as unreliable and they don’t catch everyone who’s contagious, they may improve the odds of avoiding in‐store spread of the novel coronavirus. But the ADA exposes you to legal risk if you use them:
Title III of the ADA does not allow public accommodations to impose or apply eligibility criteria that screen out or tend to screen out an individual with a disability or any class of individuals with disabilities from fully and equally enjoying any goods, services, facilities, privileges, advantages, or accommodations.
You might try to take refuge in one of two exceptions, one that excludes from relevant protection someone who “poses a direct threat to the health or safety of others,” and another that permits “legitimate safety requirements that are necessary for safe operation.” The “direct threat” exception, however, requires “an individualized inquiry into whether a specific person poses a direct threat” and courts have been very stringent with businesses that try to use it. They’ve also been strict with the “necessary for safe operation” defense. Do you think you might get sued on the grounds that forehead guns can’t really be a requirement of safe use if some of your competitors aren’t using them? Yes, you just might.
* What kind of seating will you leave in place? To reflect capacity constraints, many sit‐down businesses such as restaurants find it best to remove a portion of their tables and seating. Careful about this reshuffling, or it could get legally expensive once you find that you no longer have the required proportion of seating with “a work surface that is between 28” and 34” above the ground, with clear space underneath that is at least 27” high, 17” deep, and 30” wide.”
* How do you move service online? This will be the biggest headache of all for countless small operators who have moved personal services online — tutors, coaches, counselors of all sorts. For more than 20 years now Congress has determinedly refused to clarify when and how online services must provide web accessibility enabling blind, deaf, and fine‐motor‐challenged computer users to access all the same services as others. Freelance private lawyers have already sued many thousands of businesses both large and small over alleged web accessibility violations — it takes just one cooperative client to launch a hundred suits or more — and settlements in the thousands or even tens of thousands of dollars are common. Note one problem here with a law that is enforced, by design, by private lawsuits: no official regulator can lift the requirements to reflect the COVID-19 emergency, as is often possible with, say, trucking or occupational‐licensure rules. Maybe one local ADA lawyer will decide to be reasonable and not sue over a website hastily thrown together in March by a small business trying to keep some revenue coming in during shelter in place. That’s no reason a second lawyer has to hold back.
We’ve covered ADA compliance headaches in many earlier posts (some links in this post). In March, we noted how disabled‐schooling statutes were complicating the effort to move K-12 education online in response to the pandemic.
The House of Representatives revealed a new 1,800 page long coronavirus relief bill today. Included is a provision approving the Secure And Fair Enforcement Banking Act (SAFE Act) of 2019, which allows cannabis manufacturers and sellers in states that have legalized or medicalized marijuana, to access the banking system, develop lines of credit, and be eligible for other protections. From the bill:
“The purpose of this section is to increase public safety by ensuring access to financial services to cannabis‐related legitimate businesses and service providers and reducing the amount of cash at such businesses.”
The SAFE Act was approved by the House of Representatives last October in a vote of 321–103 but has since been snarled in Senate committee hearings. While the current coronavirus relief package will likely fail in the Senate, at least some lawmakers are still trying to improve cannabis policy.