Monthly Archives: October 2016

9th Circuit Upholds Arizona Felony Ballot-Collection Law

A federal appeals court panel late Friday refused to block a new Arizona law making it a felony to collect early ballots from voters.

The ruling from a three-judge panel of the 9th U.S. Circuit Court of Appeals means get-out-the vote groups won’t be able to collect ballots from voters and deliver them to the polls. Only family members and caregivers are now allowed to deliver someone else’s ballot.

The state and national Democratic parties and some voters sued to block the Republican-backed law, saying it violated the Constitution and the Voting Rights Act because it hurt minorities’ ability to vote.

Appeals court Justice Sandra Segal Ikuta and Justice Carlos Bea rejected their effort, agreeing with a lower court that the law wasn’t a significant burden and didn’t disproportionately affect minorities.

Ikuta wrote that a lower court judge didn’t make a clear error when he concluded that limiting one of several ways voters could return early ballots didn’t significantly increase the burdens of voting.

“Further, any burden imposed by H.B. 2023 is mitigated by the availability of alternative means of voting” she wrote.

Chief Appeals Court Judge Sidney Thomas dissented, writing that “Arizona has criminalized one of the most popular and effective methods by which minority voters cast their ballots,” and that violated the Constitution and the Voting Rights Act.

The legislation, House Bill 2023, was enacted by the Republican-controlled Arizona Legislature early this year and signed by GOP Gov. Doug Ducey, who called it a common-sense effort to protect the integrity of elections and eliminate voter fraud.

Both parties have used ballot collection to boost turnout during elections by going door-to-door and asking voters if they have completed their mail-in ballots. Voters who have not are urged to do so, and the volunteers offer to take the ballots to election offices.

Democrats have used the method aggressively in minority communities and argue their success prompted the new GOP-sponsored law.

During oral arguments last week in San Francisco, a lawyer for the Democrats said it would cost minority voters their right to vote.

“This law might disenfranchise thousands of people on the one hand and on the other hand not one single instance of fraud has been found,” Bruce Spiva told the judges. “And the Legislature rejected more narrowly tailored fixes that would have actually spoken to potential fraud.

He said the law wasn’t really about fraud but about eliminating a method of voting that’s used by Native Americans, Latinos and people on the margins of society.”

Ikuta rejected that argument, saying that even if no actual fraud existed, its possible presence could undermine public confidence in elections.

“At the very least, H.B. 2023 assists in exorcizing the specter of illegitimacy that may hang over the electoral process in the minds of some citizens,” she wrote.

Lawyers for the state and the Arizona Republican Party told the panel that Democrats hadn’t shown evidence that minorities would be unfairly affected and there were plenty of other ways to vote.

Woman Accuses Justice Clarence Thomas of Groping Her in 1999

The anticipation of meeting a U.S. Supreme Court justice for the first time turned to shock and distress for a young Truman Foundation scholar in 1999 when, she says, Justice Clarence Thomas grabbed and squeezed her on the buttocks several times at a dinner party.

On Oct. 7, a night dominated by the disclosure of Donald Trump’s audio-recorded boasts about grabbing women, Moira Smith posted on Facebook a memory of her encounter with Thomas. “He groped me while I was setting the table, suggesting I should sit ‘right next to him,’ ” Smith wrote. Smith, now vice president and general counsel to Enstar Natural Gas Co., in Alaska, was 23 at the time of the dinner party at the Falls Church, Virginia, home of her boss.

Smith’s claim came amid the outrage and ongoing national conversation about inappropriate sexual treatment of women by powerful men, male acquaintances and strangers. The disclosure of the Trump tape has spurred women in startling numbers to come forward publicly with old memories of unwanted touches.

Smith spoke with The National Law Journal/Law.com multiple times by email and phone after she revealed her allegation on Facebook. Her three former housemates during the spring and summer of 1999 each said in interviews they remembered Smith describing inappropriate contact by Thomas after she came home that night from the dinner or early the next morning. They also remembered their own shock and inability to advise her about how to respond. Another Truman scholar that summer, whom Smith would later marry and divorce, said in an interview he “definitely remembered” her sharing with him what had happened soon after the dinner party.

“I have an eight-year-old daughter. Before last weekend, I had subconsciously convinced myself she would never go through this and now I know she almost certainly will,” Smith said in an interview. “I am responsible to help minimize the risks and help her to understand what to do if she does, and to model the behavior that it’s not OK. It has changed my worldview as a mother.”

The National Law Journal/Law.com wrote Thomas requesting comment to the sequence of events that Smith alleged occurred at the dinner in 1999.

Thomas, in a statement through the Supreme Court’s spokeswoman, denied Smith’s allegations.

“This claim is preposterous and it never happened,” Thomas said.

Three other dinner guests—including Louis Blair, the then-head of the Truman Foundation—said they had no prior knowledge about any claim of untoward activity. Blair questioned whether Thomas ever would have been alone with a dinner guest.

Thomas, 68, on Oct. 23 marked his 25th year on the high court. There have been no similar public allegations of inappropriate conduct by Thomas since Anita Hill’s testimony during the justice’s 1991 Senate confirmation hearings. Hill claimed Thomas sexually harassed her verbally when she worked for him at the U.S. Department of Education’s Office for Civil Rights and subsequently when he was chairman of the Equal Employment Opportunity Commission.

Thomas vigorously denied Hill’s allegations during the bitter confirmation hearings. “For almost a decade my responsibilities included enforcing the rights of victims of sexual harassment,” Thomas said then. “As a boss, as a friend, and as a human being I was proud that I have never had such an allegation leveled against me, even as I sought to promote women and minorities into nontraditional jobs.”

Despite his silent demeanor on the bench, Thomas is known inside the court and among friends for his gregarious personality and his love of traveling the country with his wife in their RV. Thomas occasionally speaks at law schools, and at events sponsored by groups that include the Federalist Society and Heritage Foundation, where he delivered remarks Wednesday evening. He has invited law students to the Supreme Court for oral argument and tours of the building.

In her Facebook post, Smith, now 41 and a graduate of the University of California Berkeley School of Law, also publicly recounted two unrelated sexual assaults in her past: a college date rape three years before the Thomas dinner, and a few years afterwards, an acquaintance’s groping of her in a bar. Smith said she did not report the alleged college sexual assault to the authorities.

Smith’s Facebook post, which is no longer visible after she deactivated her page, did not reveal the details of her encounter with Thomas. This reporter reviewed Smith’s post, and the replies, before she made the page inactive. A source first notified the NLJ about Smith’s Facebook post.

In the series of interviews over two weeks, Smith told her story and why she decided to go public after so many years.

“We now know that many men in power take advantage of vulnerable women. That willingness by men in power to take advantage of vulnerable women relies on an unspoken pact that the women will not speak up about it,” Smith said in an interview. “Why? Because they are vulnerable. Because they are star-struck. Because they don’t want to be whiners. Because they worry about their career if they do speak out. But silence no longer feels defensible; it feels complicit.”

Smith’s claim

The Harry S. Truman Foundation was created by an act of Congress and signed into law by President Gerald Ford in January 1975. The new law allowed the foundation to award scholarships “to persons who demonstrate outstanding potential for and who plan to pursue a career in public service,” and to conduct a nationwide competition to select Truman scholars.

Roughly 60 awards are made each year to college juniors. A summer institute also brings about half of each year’s Truman scholars to Washington following their graduation from college, for anywhere from three months to two years and places them in positions with the federal government or national nonprofit organizations. Many scholars have gone on to hold high-ranking positions in government and business.

Smith, a native Alaskan, was a 1997 Truman scholar. After graduating from Georgetown University’s School of Foreign Service in May 1998, she remained in D.C. and started working as a Truman Foundation resident scholar until August 1999.

She found housing that year in northwest Washington with three Wellesley College graduates, one of whom had been a Truman scholar in Smith’s class. The women became friends, each recalled in interviews, but with the passage of years, new families and large geographic distances between them, they have had infrequent contacts with each other.

As the 1998-99 resident scholar, Smith’s main job was to coordinate the foundation’s summer institute, help plan the Truman Scholar Leadership week and support Louis Blair, the executive secretary.

Smith said her “unofficial” duties for the foundation included helping Blair with the dinners he held in his Falls Church home. Amy Hertel Buckley, whose 1999-2000 resident scholar position overlapped Smith’s by three months, also attended the Thomas dinner that evening.

“Moira and I would go early to help with kitchen prep,” recalled Buckley, a graduate of Stanford Law School and now a partner at Education Cities, a national nonprofit that supports city-based education organizations in the effort to improve public schools.

Blair, now retired, had attended culinary school in France and was a gourmet chef, he said in an interview. The dinners, which he cooked himself, were often several courses of French food and were used to network on behalf of the foundation. They usually included special guests at a main table that seated six to eight persons near the kitchen, and then another four to six young scholars at a garden table farther away, near a pond.

In 1999, the foundation decided to create an award in honor of the late U.S. District Judge Joseph Stevens Jr. of Kansas City, a former chairman of the foundation’s board of trustees. Blair asked Thomas, who had known Stevens when they both practiced law in Missouri, to present the first award to David Adkins, who was then a Kansas state lawmaker and former Truman scholar and is now executive director of the Council of State Governments.

The night before the award was to be made at the Supreme Court, Blair held a dinner in his home for Thomas, Adkins and Adkins’ parents and wife, Adkins and Blair said in interviews. Several Truman scholars attended the June 1999 gathering, although neither Blair nor Smith remembered who they were or the exact number.

Smith said she remembered helping with the last-minute preparation of hors d’oeuvres, setting the table and opening bottles of wine. Buckley recalled helping Smith set up that night.

Thomas, Smith said, was sitting in the middle seat of the rectangular table with his right side facing the kitchen.

Alone with Thomas, “I was setting the place to his right when he reached out, sort of cupped his hand around my butt and pulled me pretty close to him,” Smith said in an interview. “He said, ‘Where are you sitting?’ and gave me a squeeze. I said, ‘I’m sitting down at the garden table.’ He said, ‘I think you should sit next to me,’ giving me squeezes. I said, ‘Well, Mr. Blair is pretty particular about his seating chart.’ I tried to use the seating chart as a pretext for refusing. He one more time squeezed my butt and he said, ‘Are you sure?’ I said yes, and that was the end of it.”

Smith said the other guests then assembled for the dinner and she went to the garden table to take her seat. Buckley said she did not recall seeing anything unusual that evening. Smith recalled being “shell-shocked, but also I was there for work. I had a job to do, to be genial as sort of a stand-in hostess.”

Moira Smith is depicted standing next to Clarence Thomas in 1999.
Moira Smith is depicted standing next to Clarence Thomas in 1999.
Smith, who posed for a photo with Thomas after the dinner, recalled feeling “conflicted” about the incident.

“On the one hand, I really liked Justice Thomas,” she said. “He was clearly smart, engaging, and hilarious—he had a booming and totally infectious laugh. On the other hand, I was so confused about what had happened. It had transgressed such a line.”

Smith insisted in the interviews that she did not misconstrue the justice’s action.

“You know when somebody puts an arm around your waist, it would have been overly familiar, but wouldn’t have crossed any boundaries,” she said. “I would have been OK by that and flattered. Instead, he was 5 or 6 inches down and he got a good handful and he kept squeezing me and pulling me close to him. There was definitely pressure and underscored by how close he pulled me to him. Had he said those words and not touched, I’d probably have been flattered. But it felt somewhat menacing and I felt vulnerable. He was seated and I was at a level of intimacy that felt really inappropriate in that setting.”

The recollections of Smith’s roommates

Hours after Smith published her memory to Facebook, a former housemate, Laura Fink, replied to the post: “God M, I remember the Thomas incident. And I remember also all of us being outraged and feeling powerless to help you or stop him. Love to you for your strength and survival of all of this.”

Fink, co-founder and president of Fink & Hernandez, a political consulting firm in San Diego, recalled in an interview that the four housemates sat in their kitchen dining area and talked about the Thomas incident.

“I remember her telling us almost immediately,” Fink said. “We sat there stunned. We were children of the ’90s, and came of age the time of Anita Hill. We were appalled. What I remember her saying is he groped her, grabbed her rear. She had planned that dinner for the Trumans so this was a big deal; she put a lot of work on it. She had to be a professional, so she was worried about saving face and getting through the evening.”

Fink has had a similar personal experience. In 2013, she went public with a charge that San Diego Mayor Bob Filner patted her rear end and made crude comments about her at a fundraiser when she was working as deputy campaign manager of his congressional campaign in 2005. Filner, who resigned, was sentenced to 90 days in home confinement and three years of probation for assaulting three women while in office.

Another of Smith’s former housemates, Carrie Farmer, said in an interview that she remembered Smith telling her about the incident with her and two other housemates soon after the dinner.

“I do remember but my memory of the details is fuzzy,” said Farmer, who later earned a doctorate in health policy at Harvard University and is now senior policy researcher and associate director of the Rand Corp.’s behavioral and policy sciences department in Pittsburgh.

“I remember us sitting down and talking about it. We were all shocked,” Farmer said. “We didn’t have any resources or know what to do. We felt bad for Moira and disappointed that someone in a powerful position would do that.”

The third former roommate, a Truman scholar in Smith’s class, said Smith described a situation “where there was inappropriate behavior, some interaction with Clarence Thomas.” She said she doesn’t remember the exact details. “This kind of thing happens, and it was not unusual to share these encounters, especially young women in D.C.,” said the roommate, a federal government executive with a law degree who declined to be identified by name because of a relative with a pending federal court case.

“I have a lot of respect for her. I have never doubted the veracity of what she is saying in my interactions with her,” the former roommate said.

Another Truman scholar that spring and summer in 1999 was Stanford University graduate Paul Bodnar, now a senior fellow at the Rocky Mountain Institute and until March, special assistant to President Obama and senior director for energy and climate change at the National Security Council.

“I do remember [Smith telling me],” Bodnar said in an interview. “When I saw that [Facebook] post, I definitely remembered it right away. She and I had dinner once at Blair’s home. We were both Truman scholars. To me, her story connects with the memory of that dinner because she told me then that [Thomas] had touched her inappropriately. Obviously it was disturbing to her.”

Blair, the Truman Foundation’s former director, called Smith’s allegation against Thomas “shocking.” He said he remembered the dinner “fondly” as it was the only time he ever hosted a Supreme Court justice.

“I have no recollection of the incident,” Blair said in an interview. “Moira never said anything to me. With a number of people floating around—probably 16 or so of us—in three rooms, I am skeptical that the justice and Moira would have been alone. I was in the kitchen most of the time so I wouldn’t have seen it.”

Blair said he likes to think he was protective of female Truman scholars and noted an incident when another female resident scholar told him a guest had said something inappropriate. “I banished the person from future events,” Blair said.

The Thomas evening, Blair said, was “spectacularly successful.”

David Adkins, the guest of honor that night, said he does not remember seeing anyone at the dinner other than his family, Blair and Thomas—not Smith, not any Truman scholars. He particularly remembered how charming Thomas was to his parents. “In my mind, it was just us there,” Adkins said.

Smith did not tell Blair about what she claims happened.

“He cared very much about promoting the foundation and really valued his contacts in D.C.,” Smith said. “It wouldn’t have occurred to me to tell him probably the most illustrious person who had come to his house for dinner had done that to me.”

The Facebook revelation

After her term with the Truman Foundation, Smith returned to Alaska and worked as special assistant to then Lt. Gov. Fran Ulmer. She moved to Budapest, worked for the Hungarian Helsinki Committee in a project to develop refugee law clinics in central and Eastern Europe and married Bodnar. After a sabbatical to work on Ulmer’s campaign for governor, she began law school at Boston College in August 2003.

Early in the beginning of her second year, her marriage fell apart. That and the stress of law school and volunteer activities took a personal toll, she said. She left law school and returned to Alaska, taking a job with the state Legislature until she resumed law school as a transfer student to the University of California, Berkeley School of Law. She graduated in May 2007 and returned to Alaska, where she subsequently remarried and clerked for then-Alaska Chief Justice Dana Fabe.

Smith’s husband, Jake Metcalfe, is a former chairman of the Alaska Democratic Party. In 2008, he withdrew from a primary campaign for Congress after reports linked his campaign to fake, derogatory websites about another candidate. A former district attorney, he has been executive director of the Public Safety Employees Association since 2009. Federal Election Commission records show Smith contributed to U.S. Senate campaigns of Alaska Republican Lisa Murkowski and Democrat Mark Begich, who lost re-election in 2015.

After working at the boutique firm Ashburn & Mason following her clerkship, Smith joined Enstar Natural Gas Co., one of the state’s largest natural gas distributors, where she is now vice president and general counsel. Smith has been a member of the Alaska bar since May 2008; she has no record of disciplinary history.

On the evening of Oct. 7, Smith was traveling to Portland to see family when she listened to Trump’s boasts, recorded in 2005, about grabbing and kissing women without their consent. While waiting for a ride from the Portland airport, she checked her Facebook page and saw a friend had posted a photo of a laughing Hillary Clinton. Below the photo were the words: “As if those tiny hands could grab ahold of pussy.”

Smith said the meme made her furious.

“We took something serious and just normalized it by laughing at it. Donald Trump said when you’re a star, they let you do it; you can do anything. The idea that we as victims let them do it made me mad,” Smith said. “Sure enough, Justice Thomas did it with I think an implicit pact of silence that I would be so flattered and star-struck and surprised that I wouldn’t say anything. I played the chump. I didn’t say anything.”

Smith said she started writing a Facebook post that night and sent it to her husband. He replied, “TMI” (too much information); she rewrote it and published her memory of the Thomas incident as a private post that restricted who could see her writing. The next morning, on Oct. 8, Smith recalled, she had received requests to more widely share the post.

 

Smith decided then to make her Thomas claim more visible on Facebook by sharing it to the “public”—a privacy setting that allows people who are not designated “friends” to see a post. Her post received more than 160 replies before she took down her page about a week later. She did not delete the Thomas post. Apprehensive about the consequences to her family about speaking out now, Smith said she deactivated her Facebook page the week of Oct. 17 because she was “just anxious and I figured it was the first self-protective thing I could do online.”

“Since I spoke out on Facebook, I’ve had four colleagues talk to me with stories of date rape, stranger rape, being drugged, unbelievably predatory conduct, touching by people in all kinds of places publicly for which there was zero accountability,” Smith said. “I can understand now that this is not the exception. This is the norm.”

Smith said her support network of family and friends puts her in a position where she can speak up now.

“I don’t gain anything but what I stand to lose is relatively minor compared to people in less stable situations,” she said. “That gives me a feeling of obligation, responsibility. If I can, I should.”

Goldman Sachs Endorses Hillary Clinton For President

He’s with her. On Sunday, former Secretary of State Hillary Clinton earned the endorsement of Goldman Sachs CEO Lloyd Blankfein—an endorsement she had been working toward for years.

As was revealed by Wikileaks, Hillary Clinton spent the run up to her presidential campaign giving speeches to Goldman Sachs and other Wall Street banks, where she praised their talents and explained her positions on financial regulation.

On October 24, 2013, Clinton told Goldman Sachs that Dodd-Frank had to be done mostly for “political reasons” because Congress needed to look like it was doing something about the crisis. She said, “There’s nothing magic about regulations, too much is bad, too little is bad. How do you get to the golden key, how do we figure out what works? And the people that know the industry better than anybody are the people who work in the industry.”

Yes, she essentially endorsed Wall Street writing the rules because Wall Street knows its business best and complained to Goldman Sachs that regulations had frightened bankers.

“I mean, right now, there are so many places in our country where the banks are not doing what they need to do because they’re scared of regulations, they’re scared of the other shoe dropping, they’re just plain scared, so credit is not flowing the way it needs to to restart economic growth,” Clinton said. “So people are, you know, a little — they’re still uncertain, and they’re uncertain both because they don’t know what might come next in terms of regulations, but they’re also uncertain because of changes in a global economy that we’re only beginning to take hold of.”

Music to Wall Street’s ears. For Goldman Sachs, was there really any other choice this cycle? After all, they did pay Hillary Clinton $675,000 for those three speeches, and have generously supported her political career.

Despite her private comments to Goldman Sachs, Hillary Clinton has taken a tough public position on Wall Street during the campaign, likely due to Senator Bernie Sanders’ success in the primaries. Of course, Wikileaks also revealed that Clinton told the National Multi-housing Council in a private speech that “you need both a public and a private position.”

So the real question is, what do Blankfein and Goldman want in return and what is Clinton’s private position on giving it to them?

SCOTUS Agrees to Review Transgender Bathroom Challenge

The U.S. Supreme Court on Friday agreed to step into the national controversy over transgender rights by taking up a Virginia school board’s effort to block a transgender boy’s use of the boys’ high school bathroom.

The justices said they will hear arguments in Gloucester County School Board v. G.G. and decide whether the Department of Education’s interpretation of Title IX of the Education Amendments of 1972 and the agency’s own regulations are correct.

The student, Gavin Grimm, began his senior year this fall at Gloucester High School. He was assigned the identity of a girl at birth but now identifies as a boy. In October 2014, the school principal allowed him to use the boys’ bathroom. However, soon afterwards, the local school board passed a policy banning him from the boys’ bathroom.

Grimm, referred to in the court record as G.G., sued the school board, claiming that its policy discriminated against him in violation of Title IX and the Constitution’s equal-protection clause. Title IX prohibits sex discrimination in education unless authorized by an exception in the statute or regulations.

On April 9, a 2-1 panel of the U.S. Court of Appeals for the Fourth Circuit reversed a district court decision dismissing Grimm’s Title IX claim and denying his request for a preliminary injunction. The panel held that the district court erred in refusing to give Auer deference to the Department of Education’s interpretation of a 1975 regulation allowing schools to provide “separate toilet, locker room, and shower facilities on the basis of sex.” The department had issued a guidance letter saying that Title IX’s prohibition on discrimination included “gender identity” and that Title IX funding recipients must “generally treat transgender students consistent with their gender identity.”

Auer deference refers to the Supreme Court’s 1997 decision in Auer v. Robbins, which requires that an agency’s interpretation of its own ambiguous regulation be given controlling weight unless the interpretation is plainly erroneous or inconsistent with the regulation or statute.

The justices on Friday limited arguments to two questions: whether deference should be given to the department’s guidance letter, and regardless of any deference, was the department’s interpretation of Title IX and its implementing regulation correct.

“In light of the right to bodily privacy, federal law should not be twisted to require that a male be given access to the girls’ facilities, or a female to the boys’ facilities,” said Gary McCaleb, senior counsel with Alliance Defending Freedom, an amicus supporting the school board. “The Supreme Court should reverse the Fourth Circuit’s ruling, which is out of step with the law and previous federal court precedent.”

But Josh Block, senior staff attorney with the American Civil Liberties Union, counsel to Grimm, said in a statement: “These sorts of discriminatory policies stigmatize and isolate transgender students like Gavin just because of who they are. We look forward to presenting Gavin’s case to the Supreme Court as the next step in the fight to ensure fairness and equality for trans people across the country.”

The case is one of at least three challenges involving transgender individuals’ use of restroom facilities. A federal district court in North Carolina is hearing a challenge to that state’s HB 2 bathroom bill, and a number of states have sued the Departments of Justice and Education in Texas district court over the departments’ recent guidances on the issue. That court issued a nationwide injunction against the policy.

The court added five cases, including the transgender case, to the term’s argument docket. The justices continued their strong interest in arbitration by agreeing to hear Kindred Nursing Centers v. Clark.

The nursing centers, represented by Mayer Brown’s Andrew Pincus, ask whether the Federal Arbitration Act pre-empts a state-law contract rule that requires a power of attorney to expressly refer to arbitration agreements before the attorney can bind her principal to an arbitration agreement.

And the justices will hear Packingham v. North Carolina, a First Amendment challenge to a state law that makes it a felony for anyone on the state’s registry of former sex offenders to access a wide array of websites—YouTube, Facebook, etc.—if the site allows minors to have accounts.

Breaking News: FBI Tells Congress it is Reopening Investigation into Clinton Emails

The FBI is reopening the investigation into Hillary Clinton‘s use of a private email server, the bureau’s director said in a letter to lawmakers on Friday, a surprise twist in a turbulent campaign just 11 days before election day.

In a note to congressional committee chairs, FBI director James Comey said that the FBI had discovered additional emails relevant to the investigation into Clinton’s and that agents were examining the emails to determine whether they contain classified information.

There was no additional information about what the emails contain or how long the investigation could take.

“In connection with an unrelated case, the FBI has learned of the existence of emails that appear to be pertinent to the investigation,” said Comey. “I am writing to inform you that the investigative team briefed me on this yesterday, and I agreed that the FBI should take appropriate investigative steps designed to allow investigators to review these emails to determine whether they contain classified information, as well as to assess their importance to our investigation.”

Also unknown is what the unrelated case is that led to the FBI discovering additional emails.

Clinton’s use of a private email server during her time as Secretary of State has become a central issue of the campaign.

After a months-long investigation, the FBI decided earlier this year not to recommend criminal charges against Clinton, saying there was no prosecutorial precedent to do so.

At question in the investigation was the former secretary of state’s handling of classified information. The FBI found that in a handful of instances, classified email was discovered on Clinton’s personal server.

 

Obama administration announces double-digit premium hikes for Affordable Care Act

WASHINGTON — Premiums will go up sharply next year under President Barack Obama’s health care law, and many consumers will be down to just one insurer, the administration confirmed Monday. That will stoke another “Obamacare” controversy days before a presidential election.

Before taxpayer-provided subsidies, premiums for a midlevel benchmark plan will increase an average of 25 percent across the 39 states served by the federally run online market, according to a report from the Department of Health and Human Services. Some states will see much bigger jumps, others less.

Moreover, about 1 in 5 consumers will only have plans from a single insurer to pick from, after major national carriers such as UnitedHealth Group, Humana and Aetna scaled back their roles.

“Consumers will be faced this year with not only big premium increases but also with a declining number of insurers participating, and that will lead to a tumultuous open enrollment period,” said Larry Levitt, who tracks the health care law for the nonpartisan Kaiser Family Foundation.

Republicans will pounce on the numbers as confirmation that insurance markets created by the 2010 health overhaul are on the verge of collapsing in a “death spiral.” Sign-up season starts Nov. 1, about a week before national elections in which the GOP remains committed to a full repeal. Window shopping for plans and premiums is already available through HealthCare.gov.

The sobering numbers confirmed state-by-state reports that have been coming in for months. Administration officials are stressing that subsidies provided under the law, which are designed to rise alongside premiums, will insulate most customers from sticker shock. They add that consumers who are willing to switch to cheaper plans will still be able to find bargains.

“Headline rates are generally rising faster than in previous years,” acknowledged HHS spokesman Kevin Griffis. But he added that for most consumers, “headline rates are not what they pay.”

The vast majority of the more than 10 million customers who purchase through HealthCare.gov and its state-run counterparts do receive generous financial assistance. “Enrollment is concentrated among very low-income individuals who receive significant government subsidies to reduce premiums and cost-sharing,” said Caroline Pearson of the consulting firm Avalere Health

But an estimated 5 million to 7 million people are either not eligible for the income-based assistance, or they buy individual policies outside of the health law’s markets, where the subsidies are not available. The administration is urging the latter group to check out HealthCare.gov. The spike in premiums generally does not affect the employer-provided plans that most workers and their families rely on.

In some states, the premium increases are striking. In Arizona, unsubsidized premiums for a 27-year-old buying a benchmark “second-lowest cost silver plan” will jump by 116 percent, from $196 to $422, according to the administration report. Oklahoma has the next biggest increase for a similarly situated customer, 69 percent.

Dwindling choice is another problem factor.

The total number of HealthCare.gov insurers will drop from 232 this year to 167 in 2017, a loss of 28 percent. (Insurers are counted multiple times if they offer coverage in more than one state. So Aetna, for example, would count once in each state that it participated in.)

Switching insurers may not be simple for patients with chronic conditions.

While many carriers are offering a choice of plan designs, most use a single prescription formulary and physician network across all their products, explained Pearson. “So, enrollees may need to change doctors or drugs when they switch insurers,” he said.

Obama Transgender School Bathroom Policy Stopped by Judge Nationwide

A federal judge in Texas has largely rejected the Obama administration’s request to narrow a nationwide injunction banning enforcement of an Education Department policy requiring public schools to allow transgender students to use bathrooms and locker rooms corresponding to their gender identity.

In an order issued late Tuesday, U.S. District Court Judge Reed O’Connor made some changes to the ruling he issued in August at the request of 13 states opposed to the policy, but he left the Education Department unable to bring new cases enforcing transgender students’ access to access to what he termed “intimate facilities” across the nation.

Justice Department lawyers had asked O’Connor to limit the injunction’s effect to the 13 states who brought the suit, filed in federal court in Wichita Falls, Texas, about 140 miles northwest of Dallas. However, the judge maintained he had the legal authority to halt the policy nationwide.

“It is clear from Supreme Court and Fifth Circuit precedent that this Court has the power to issue a nationwide injunction where appropriate. Both Title IX and Title VII rely on the consistent, uniform application of national standards in education and workplace policy. A nationwide injunction is necessary because the alleged violation extends nationwide,” O’Connor wrote. “Should the Court only limit the injunction to the plaintiff states who are a party to this cause of action, the Court risks a ‘substantial likelihood that a geographically-limited injunction would be ineffective.'”

The judge said his order wouldn’t have any real impact in states that don’t require gender separation by law or policy, but it would still appear to apply to school districts that apply such rules themselves.

O’Connor, an appointee of President George W. Bush, did agree to allow the federal government to continue to defend the transgender policy in other cases where it is being sued over the issue and to pursue the policy enforcement actions in “litigation not substantially developed” before he issued the order in August. He also said his decision applies only to “intimate facilities” and not to other discrimination against transgender students.

The judge left open the question of whether his order limits Labor Department enforcement of similar policies, as well as the issue of how his ruling applies to bathrooms and locker rooms shared by students and teachers or other staff.

An appeal from the administration to the New Orleans-based 5th Circuit Court of Appeals is expected. The Justice Department told the court last week that it planned to file an appeal by Thursday if a clarification of his injunction was not issued. His clarification order was issued late Tuesday, but dated Wednesday.

A White House spokeswoman did not immediately respond to a request for comment on the ruling. The Education Department referred questions to a Justice Department spokeswoman, who declined to comment.

Texas Attorney General Ken Paxton, who’s leading the suit, welcomed the judge’s latest order.

“The court’s reaffirmation of a nationwide injunction should send a clear message to the president that Texas won’t sit idly by as he continues to ignore the Constitution. The president cannot rewrite the laws enacted by the elected representatives of the people and then threaten to take away funding from schools to force them to fall in line,” Paxton said in a statement.

The case and O’Connor’s nationwide ban are being closely watched not only for their impact on transgender rights, but also as a harbinger of the impact of an ideologically divided, eight-justice Supreme Court.

The Texas court’s nationwide ban creates some curious impacts in other states.

In April, the Richmond, Va.-based 4th Circuit Court of Appeals ruled 2-1 in April that the administration acted within its authority to interpret its own regulations when it issued the transgender bathroom guidance. The ruling led to an injunction allowing a transgender boy to use boys rest rooms at a Gloucester County, Va. high school. The Supreme Court, voting 5-3, temporarily stayed that order pending a decision by the justices about whether to review the case.

While the 4th Circuit ruling remains on the books in Virginia, Maryland and North Carolina, the Education Department appears unable to enforce it in those states as a result of O’Connor’s order. Individual students could still file their own suits.

The Obama administration, liberal backers and some Supreme Court justices have repeatedly warned about the dangers a deadlocked high court poses for differing interpretations of federal laws in different parts of the country.

However, if the 5th Circuit upholds O’Connor’s injunction and the Supreme Court ultimately deadlocks 4-4 on the issue, the ruling could affect the federal government’s authority nationwide—at least until a new justice is confirmed to the court.

Such a scenario already played out once in the legal fight over Obama’s 2012 immigration executive actions, which were blocked by a federal judge in Brownsville, Texas—a ban that remains in place after the Supreme Court deadlocked 4-4 in the case. Legal experts say similar scenarios could recur repeatedly until the court is again able to form a majority in hotly contested, polarizing cases.

There are already signs of some resistance brewing among judges told that rulings never validated by a majority of the Supreme Court — affects courts and litigants hundreds or thousands of miles away.

“Somehow a court sitting in Brooklyn, New York, in the 2nd Circuit, must give full faith and credit to a decision of the Fifth Circuit which may be erroneous?” said Eastern District of New York U.S. District Court Judge Nicholas Garaufis, an appointee of President Bill Clinton, at a hearing last month in a case seeking to challenge the ban on Obama’s immigration policy. “That doesn’t sound like justice to me….I don’t know what’s going on out there to Texas on the border but I know what’s going on in New York. And I’m very concerned about it and I have absolutely no intention of simply marching behind in the parade that’s going on out there in Texas, if this person has rights here.”

“Journalists Under Siege with Mnar Muhawesh” on ” I Take LIBERTY With My Coffee”


Project Censored—the non-profit media watchdog organization, founded by Professor Carl Jensen—celebrating forty years of documenting news stories that independent journalists and news organizations cover, that corporate media either ignore altogether or report only in incomplete, slanted fashion. This past weekend, Project Censored hosted a National Media Freedom Summit. The Summit brought together independent journalists, media activists, professors, students, and members of the public, to discuss the links between media power and political power, and to share effective strategies for advancing social justice by promoting media freedom and critical media literacy. Mnar Muhawesh, founder and editor-in-chief of MintPress News and host of the program “Behind the Headline,” led a panel discussion with Abby Martin, David Talbot, and Mark Crispin Miller on the state of media freedom and the significance of independent journalism. Mnar joins us to discuss the panel, the recent journalist arrests in North Dakota, the upcoming election, and the Middle East. Longtime Activist, Journalist, Radio Host and Legal Professional Bobby Rodrigo brings you a special broadcast of “I Take LIBERTY With My Coffee” on Coffee Party Radio. Advocating engagement Bobby points out the Constitution is the Rule of Law. Money in Politics, Tax Reform, the Political Party Machine, Cannabis Prohibition and partisan blind allegiance is on full display as he advocates against the erosion of Constitutional Protections in the name of corruption & tyranny. “If we focused on following the Constitution we would solve many of the ills of our society. Offering guests from Political Organizations, Activism, Media & Artists Bobby invites you to join him for this special broadcast and every Sunday Morning at 10:00 AM on Coffee Party Radio.

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Longtime Activist, Journalist, Radio Host and Legal Professional Bobby Rodrigo brings you a special broadcast of “I Take LIBERTY With My Coffee” on Coffee Party Radio. Advocating engagement Bobby points out the Constitution is the Rule of Law. Money in Politics, Tax Reform, the Political Party Machine, Cannabis Prohibition and partisan blind allegiance is on full display as he advocates against the erosion of Constitutional Protections in the name of corruption & tyranny. “If we focused on following the Constitution we would solve many of the ills of our society. Offering guests from Political Organizations, Activism, Media & Artists Bobby invites you to join him for this special broadcast and every Sunday Morning at 10:00 AM on Coffee Party Radio.

Thousands of California Soldiers Forced to Repay Enlistment Bonuses a Decade after Going to War

Now the Pentagon is demanding the money back.

Nearly 10,000 soldiers, many of whom served multiple combat tours, have been ordered to repay large enlistment bonuses — and slapped with interest charges, wage garnishments and tax liens if they refuse — after audits revealed widespread overpayments by the California Guard at the height of the wars last decade.

Investigations have determined that lack of oversight allowed for widespread fraud and mismanagement by California Guard officials under pressure to meet enlistment targets

But soldiers say the military is reneging on 10-year-old agreements and imposing severe financial hardship on veterans whose only mistake was to accept bonuses offered when the Pentagon needed to fill the ranks.

“These bonuses were used to keep people in,” said Christopher Van Meter, a 42-year-old former Army captain and Iraq veteran from Manteca, Calif., who says he refinanced his home mortgage to repay $25,000 in reenlistment bonuses and $21,000 in student loan repayments that the Army says he should not have received. “People like me just got screwed.”

In Iraq, Van Meter was thrown from an armored vehicle turret — and later awarded a Purple Heart for his combat injuries — after the vehicle detonated a buried roadside bomb.

Susan Haley, a Los Angeles native and former Army master sergeant who deployed to Afghanistan in 2008, said she sends the Pentagon $650 a month — a quarter of her family’s income — to pay down $20,500 in bonuses that the Guard says were given to her improperly.

“I feel totally betrayed,” said Haley, 47, who served 26 years in the Army along with her husband and oldest son, a medic who lost a leg in combat in Afghanistan.

Haley, who now lives in Kempner, Texas, worries they may have to sell their house to repay the bonuses. “They’ll get their money, but I want those years back,” she said, referring to her six-year reenlistment.

The problem offers a dark perspective on the Pentagon’s use of hefty cash incentives to fill its all-volunteer force during the longest era of warfare in the nation’s history.

Even Guard officials concede that taking back the money from military veterans is distasteful.

“At the end of the day, the soldiers ended up paying the largest price,” said Maj. Gen. Matthew Beevers, deputy commander of the California Guard. “We’d be more than happy to absolve these people of their debts. We just can’t do it. We’d be breaking the law.”

Facing enlistment shortfalls and two major wars with no end in sight, the Pentagon began offering the most generous incentives in its history to retain soldiers in the mid-2000s.

It also began paying the money up front, like the signing bonuses that some businesses pay in the civilian sector.

“It was a real sea change in how business was done,” said Col. Michael S. Piazzoni, a California Guard official in Sacramento who oversaw the audits. “The system paid everybody up front, and then we spent the next five years figuring out if they were eligible.”

The bonuses were supposed to be limited to soldiers in high-demand assignments like intelligence and civil affairs or to noncommissioned officers badly needed in units due to deploy to Iraq or Afghanistan.

The National Guard Bureau, the Pentagon agency that oversees state Guard organizations,  has acknowledged that bonus overpayments occurred in every state at the height of the two wars.

But the money was handed out far more liberally in the California Guard, which has about 17,000 soldiers and is one of the largest state Guard organizations.

In 2010, after reports surfaced of improper payments, a federal investigation found that thousands of bonuses and student loan payments were given to California Guard soldiers who did not qualify for them, or were approved despite paperwork errors.

Army Master Sgt. Toni Jaffe, the California Guard’s incentive manager, pleaded guilty in 2011 to filing false claims of $15.2 million and was sentenced to 30 months in federal prison. Three officers also pleaded guilty to fraud and were put on probation after paying restitution.

Roughly 9,700 current and retired soldiers have been told by the California Guard to repay some or all of their bonuses and the recoupment effort has recovered more than $22 million so far.

Because of protests, appeals and refusal by some to comply, the recovery effort is likely to continue for years.

In interviews, current and former California Guard members described being ordered to attend mass meetings in 2006 and 2007 in California where officials signed up soldiers in assembly-line fashion after outlining the generous terms available for six-year reenlistments.

Robert Richmond, an Army sergeant first class then living in Huntington Beach, said he reenlisted after being told he qualified for a $15,000 bonus as a special forces soldier.

The money gave him “breathing room,” said Richmond, who had gone through a divorce after a deployment to Afghanistan in 2002 and 2003.

In 2007, his special forces company was sent to the Iraqi town of Hillah, 60 miles south of Baghdad in an area known as the “Triangle of Death” because of the intense fighting.

Richmond conducted hundreds of missions against insurgents over the next year. In one, a roadside bomb exploded by his vehicle, knocking him out and leaving him with permanent back and brain injuries.

He was stunned to receive a letter from California Guard headquarters in 2014 telling him to repay the $15,000 and warning he faced “debt collection action” if he failed to comply.

Richmond should not have received the money, they argued, because he already had served 20 years in the Army in 2006, making him ineligible.

Richmond, 48, has refused to repay the bonus. He says he only had served 15 years when he reenlisted, due to several breaks in his Army service.

He has filed appeal after appeal, even after receiving a collection letter from the Treasury Department in March warning that his “unpaid delinquent debt” had risen to $19,694.62 including interest and penalties.

After quitting the California Guard so the money wouldn’t be taken from his paycheck, he moved to Nebraska to work as a railroad conductor, but was laid off.

He then moved to Texas to work for a construction company, leaving his wife and children in Nebraska. With $15,000 debt on his credit report, he has been unable to qualify for a home loan.

“I signed a contract that I literally risked my life to fulfill,” Richmond said bitterly. “We want somebody in the government, anybody, to say this is wrong and we’ll stop going after this money.”

Though they cannot waive the debts, California Guard officials say they are helping soldiers and veterans file appeals with the National Guard Bureau and the Army Board for Correction of Military Records, which can wipe out the debts.

But soldiers say it is a long, frustrating process, with no guarantee of success.

Robert D’Andrea, a retired Army major and Iraq veteran, was told to return a $20,000 bonus he received in 2008 because auditors could not find a copy of the contract he says he signed.

Now D’Andrea, a financial crimes investigator with the Santa Monica Police Department, says he is close to exhausting all his appeals.

“Everything takes months of work, and there is no way to get your day in court,” he said. “Some benefit of the doubt has to be given to the soldier.”

Bryan Strother, a sergeant first class from Oroville north of Sacramento, spent four years fighting Guard claims that he owed $25,010.32 for mistaken bonuses and student loans.

Guard officials told Strother he had voided his enlistment contract by failing to remain a radio operator, his assigned job, during and after a 2007-08 deployment to Iraq.

Strother filed a class-action lawsuit in February in federal district court in Sacramento on behalf of all soldiers who got bonuses, claiming the California Guard “conned” them into reenlisting.

The suit asked the court to order the recovered money to be returned to the soldiers and to issue an injunction against the government barring further collection.

In August, Strother received a letter from the Pentagon waiving repayment of his bonus.

“We believe he acted in good faith in accepting the $15,000,” a claims adjudicator from the Pentagon’s Defense Legal Services Agency wrote in the letter. He still owed $5,000 in student loan repayments, it said.

Within weeks, lawyers for U.S. Atty. Phillip A. Talbert in Sacramento petitioned the court to dismiss Strother’s lawsuit, arguing that it was moot since most of his debt had been waived. A federal judge is supposed to rule on the government’s motion by January.

“It’s a legal foot-dragging process to wear people out and make people go away,” said Strother. “It’s overwhelming for most soldiers.”

Indeed, some have just given up, repaying the money even before exhausting their appeals.

“It was tearing me up, the stress, the headaches,” said Van Meter, the former Army captain from Manteca who paid off his $46,000 debt by refinancing his mortgage. “I couldn’t take it anymore. The amount of stress it put us through financially and emotionally was something we wanted to move past.”

Chicago Police Dept Caught Hiding Millions in Stolen Cash in Secret Asset Forfeiture Fund

Every year, police take millions of dollars from ordinary Chicagoans and spend it behind closed doors.

 When the clerk called Willie Mae Swansey’s case in a crowded courtroom last February, the 72-year-old approached the judge slowly, supporting herself with a four-pronged cane. It had been a busy afternoon in the Daley Center’s civil forfeiture courtroom, with more than a dozen quick hearings and a pair of trials preceding her own. The crush of defense lawyers and hopeful claimants had thinned by the time Swansey stepped up to the bench. She steadied herself beside a prosecutor and stood with a stately straightening of her back.

Swansey was here to reclaim her car. The Chicago Police Department had seized the 2001 Chrysler PT Cruiser two years prior, arresting the driver, Swansey’s son, and charging him with manufacturing or delivering 15 to 100 grams of heroin. The car had been impounded ever since. Swansey herself was never charged with a crime, and it was her name, not her son’s, on the title. All the same, the Cook County state’s attorney’s office had agreed with CPD that the vehicle, which the office valued at $1,400, was worth keeping for good.

Swansey was prepared to tell the court that her 53-year-old son, Vincent Turner, had taken her keys without her permission. She wanted to explain that she needed her car not only for basic needs like groceries and laundry, but also because she and her granddaughter, whom she cares for, make frequent trips to doctors’ offices and hospitals. Swansey suffers from congestive heart failure, while her granddaughter has cerebral palsy and experiences frequent seizures. She wanted also to stress she had no knowledge that her son had drugs in her car.

“Ain’t no way I’d let them take my car for drugs,” Swansey later said. “That’s not me. I’m not that kind of person.”

But at her February trial date, she wasn’t allowed to argue her case. The judge simply asked if her son’s criminal case had been resolved. It hadn’t, so by law, the judge was allowed to delay the civil litigation until after the criminal case was over. They would reconvene in two months, the judge said.

This was the ninth time Swansey had appeared in civil forfeiture court and the ninth time she was told she’d have to come back. A lawyer, had she been able to hire one, could have filed a hardship motion that would allow Swansey access to the car while she waited. A lawyer might have also convinced a judge to hear the case immediately, since Swansey didn’t plan to contest the allegations against her son.

But for the fixed-income retiree, hiring a lawyer was not an option.

“I’m a poor black woman,” Swansey says. “I don’t have no money for an attorney.” Instead, she continued to represent herself.

At her next appearance in May, she informed the court that her son’s criminal case was over. He had pleaded guilty, and having been under house arrest for 745 days, he was credited with time served and put on probation, according to county records.

So on June 30, Swansey’s trial date finally arrived, two years and four months after CPD took her car. She had brought her son with her to court to testify that he had taken her keys without her knowledge. But the judge she saw that day, Paul Karkula, didn’t want to hear from him, she says.

Instead, Swansey recalls, “The judge said, ‘I can’t give you back your car, because it would be right back on the road with drugs.’ ” (Karkula declined to comment for this story.)

The decision struck Swansey as racist and deeply unfair. Swansey says she watched as four other cases that day were called and resolved, including one involving a wheelchair-bound white woman with a case very similar to hers. This woman got her car back, Swansey says. She did not.

“Don’t get me wrong—I’m the type of person that stands up for what’s right. If this happened a second time, by all means, take my car,” she says. “But nothing like this had ever happened to me. I didn’t deserve this.”

After cars like Swansey’s are sold, the proceeds are split between CPD, the Cook County state’s attorney’s office, and the Illinois State Police, which handles the accounting and disbursement of such funds as well as the sale of forfeited vehicles. Civil forfeiture, as the process is known, allows police and prosecutors to permanently keep any cash, vehicles, or other goods seized during a traffic stop or investigation. As long as they believe the money is tied to a crime, they can move to keep the property, even in cases like Swansey’s, in which the owner was neither arrested nor charged with a crime.

There are thousands of civil forfeiture cases like Swansey’s in Chicago and Illinois—and likely tens of thousands more across the country each year. (Exact figures aren’t available, as many states aren’t required to track or publicly disclose this information.) As previously documented by publications such as the Washington Post and the New Yorker, the widespread use of civil forfeiture reaps billions of dollars of revenue annually for law enforcement agencies across the country.


—BEN RUDDELL, POLICY LAWYER FOR THE AMERICAN CIVIL LIBERTIES UNION OF ILLINOIS
 


Now the Reader has documented for the first time the full size and scope of CPD’s civil forfeiture program—how much money it brings in and how it spends its take. Through numerous Freedom of Information Act requests, the Reader, working with the Chicago-based transparency nonprofit Lucy Parsons Labs and the public records website MuckRock, obtained more than 1,000 pages of CPD documents—including the department’s deposit and expenditure ledgers, internal e-mails, and purchasing records—that offer an unprecedented look into how Chicago police and the Cook County state’s attorney’s office make lucrative use of civil asset forfeiture.

Since 2009, the year CPD began keeping electronic records of its forfeiture accounts, the department has brought in nearly $72 million in cash and assets through civil forfeiture, keeping nearly $47 million for itself and sending on almost $18 million to the Cook County state’s attorney’s office and almost $7.2 million to the Illinois State Police, according to our analysis of CPD records.

The Chicago Police Department doesn’t disclose its forfeiture income or expenditures to the public, and doesn’t account for it in its official budget. Instead, CPD’s Bureau of Organized Crime, the division tasked with drug- and gang-related investigations, oversees the forfeiture fund in what amounts to a secret budget—an off-the-books stream of income used to supplement the bureau’s public budget.

The Reader found that CPD uses civil forfeiture funds to finance many of the day-to-day operations of its narcotics unit and to secretly purchase controversial surveillance equipment without public scrutiny or City Council oversight. (The Cook County state’s attorney’s office, for its part, clearly indicates narcotics-related forfeiture income in its annual budget. According to its 2016 budget, the office will use this year’s expected forfeiture revenue of $4.96 million to pay the salaries and benefits of the 41 full-time employees of its forfeiture unit.)

The amount of money seized from any given individual is, by itself, negligible to police and prosecutors’ budgets—the median value of a forfeiture in Illinois is $530, according to the Institute for Justice, a nonprofit Libertarian public-interest law firm. But losing this sum of money or access to a vehicle can be devastating to the impoverished people civil forfeiture often affects. And in Chicago the millions of dollars accumulated through so many individual seizures don’t go toward public services like schools or roads, but are used to fund the operations of the police division that carries out civil forfeiture.

Even without forfeiture income, the Chicago Police Department gets more money from the city than any other city department. (Chicago Public Schools’ budget is much larger, but the district is its own taxing entity, financially separate from the city.) Last year’s CPD budget totaled $1.4 billion, 5 percent greater than the year before. As with all city agencies, CPD’s budget is proposed by the mayor and vetted by the City Council, a separation of powers intended to provide checks and balances.

But income obtained through civil forfeiture falls outside the bounds of normal accountability. This secret budget isn’t scrutinized by the City Council, nor must CPD make any public disclosures about how these funds are spent. While the additional income is small compared to the department’s full budget, CPD’s forfeiture account is controlled entirely by the Bureau of Organized Crime. The extra $4.7 million to $9.3 million collected annually through forfeitures between 2009 and 2015 adds substantially to the bureau’s ledger.

In 2015, the bureau received a little more than $77 million in its official budget. That year’s forfeiture income was close to $4.7 million, equal to 6 percent of its total public budget. On top of that, the forfeiture fund was already flush with cash from previous years; at the end of 2015, the bureau had more than $16 million in its forfeiture checking and savings accounts, according to deposit records obtained by the Reader.

Until recently, the man responsible for approving purchases made with CPD’s forfeiture money was Nicholas Roti, who spent more than 28 years with the department, including five as the chief of the Bureau of Organized Crime from 2010 to 2015.

Roti has also been at the center of two recent controversies, the first a high-profile lawsuit by former narcotics officers who claimed they’d been harassed and shamed after helping the FBI investigate and ultimately convict crooked cops within their division. The officers alleged that Roti, then the commander of the narcotics unit, pledged never to allow them to work under him again. The city settled the lawsuit for $2 million in May.

Then, in March 2015, the Guardian newspaper described the narcotics unit’s home facility of Homan Square as an “interrogation warehouse” and “black site” where victims were denied their right to a lawyer and subjected to abuse. Roti resigned from the police department after the allegations were made. His successor, Anthony Riccio, now signs off on such purchases, as did Ernest Brown, Roti’s predecessor.

Check ledgers from CPD’s asset forfeiture accounts obtained through numerous FOIA requests show the department has made more than 4,700 individual purchases since 2009 totaling nearly $36.8 million. While the value of these purchases ranged from just a few cents to nearly three-quarters of a million dollars, most were comparatively small—worth a few hundred or a few thousand dollars each. (The average purchase was $7,724.47, based on our analysis.)

How CPD spent its civil forfeiture money, 2010-2015

Click a wedge to see data breakdown. Click the center circle to return to full graph.

FOIA’d CPD purchase orders

The Reader obtained payment requests for all bureau purchases greater than $5,000 made with forfeiture money since 2010. CPD spent close to $25.3 million in forfeiture money during this time, $22.1 million of which was spent in increments of more than $5,000. The Reader was able to classify more than 80 percent of these larger purchases, but because of redactions or vague information in some documents, roughly 20 percent of them remain unknown.

More than 90 percent of the money spent on known larger purchases was devoted to day-to-day operations and expenses, such as vehicle repairs and the purchase of computer servers.

For example: On November 18, 2014, Kenneth Angarone, a commander within the Bureau of Organized Crime, requested $102,644.73 in forfeiture funds to pay for Enterprise rental cars, which Roti approved. Angarone’s request explained that the rental cars would be used by the narcotics and gang divisions, asset forfeiture units, and administrators. Such rental car leases have accounted for more than $7.6 million of forfeiture expenditures since 2010.

The cell-phone bills of undercover officers account for another huge day-to-day expense paid for with forfeiture proceeds. On December 31, 2014, Roti approved a request for $19,015.98 to pay for one month’s worth of phones “used by undercover officers performing drug and gang enforcement operations.” Similar requests were approved nearly every month, amounting to more than $3.2 million worth of forfeiture expenditures since 2010.

Perhaps it was to help keep track of such expenditures that the Bureau of Organized Crime’s narcotics division bought itself a money-counting machine in July 2014.

When a government agency is allowed to handle the forfeiture proceeds it brings in—as is the case with both CPD and the Cook County state’s attorney’s office—it controls both “the sword and the purse,” like an army that is also its own taxing authority. This is according to Lee McGrath, legislative counsel for the Institute for Justice, which seeks to reform civil asset forfeiture laws across the country.

Allowing law enforcement to appropriate its own forfeiture funds circumvents “the traditional democratic processes of the legislature, because law enforcement can set its own priorities and raise its own money without scrutiny,” McGrath says. In CPD’s case, the Bureau of Organized Crime can spend its forfeiture income in any way it sees fit, as long as some connection to gang or narcotics investigations can be made. Only internal approval is necessary.

Ben Ruddell, a policy lawyer for the American Civil Liberties Union of Illinois, has been studying the state’s civil forfeiture statute as he works to draft a reform bill. He sees CPD and other law enforcement agencies’ control of their own forfeiture revenue as a huge problem.

“Other states have passed legislation to mitigate this incentive by requiring forfeiture income to go toward the general operating budget of the municipality or state, or into special funds for education or drug treatment,” Ruddell says. “As it stands, CPD is free to use its forfeiture income at will, and outside of the public eye.”

While the Bureau of Organized Crime spends much of the department’s forfeiture money on day-to-day expenses, theReader‘s analysis shows that $1.86 million, or 9 percent of known expenditures, goes to fund invasive surveillance equipment the department shields from public view. This surveillance technology includes devices that track and access cell phones, as well as license-plate-reading cameras that monitor the locations of vehicles.

Cellebrite is an Israeli forensics firm that makes technology that allows law enforcement agencies to access the contents of cell phones, such as pictures, text messages, and call logs. (The company made news earlier this year when it was rumored to have helped the FBI crack the iPhone belonging to one of the San Bernardino shooters, although that was later shown to be untrue.) Records released to Lucy Parsons Labs in June 2015 show that the Bureau of Organized Crime bought technology from Cellebrite as early as 2009, when the bureau was known as the Organized Crime Division.

In a November 2009 payment request, a bureau sergeant sought approval to pay for the purchase with forfeiture funds from the division’s then-chief, Ernest Brown. Because the Cellebrite kit would be “utilized during the course of narcotic related investigations as well as detective division investigations,” the sergeant requested the use of forfeiture funds. Brown, along with then-deputy chief Roti, approved the request.

On November 30, 2012, Roti authorized a request for forfeiture funds to pay for wiretapping equipment made by the technology firm Pen-Link. The request included a bold-print disclaimer, similar to ones that appear on all such secret requests for forfeiture-funded technology obtained by the Reader: “These items are of a covert nature and knowledge of their existence should be kept within the Bureau of Organized Crime and limited to sworn personnel.” In total, CPD has paid more than $411,000 in forfeiture money to Pen-Link since 2010.

CPD first began to use surveillance devices that track license plates and catalog the locations of passing vehicles in real-time in 2006. The technology, known as Automatic License Plate Readers, was heralded by then-CPD superintendent Phil Cline. Speaking at the City Club in September of that year, Cline boasted that in the first three months of using the readers, CPD had “checked more than 142,000 license plates.”

But since then, CPD has concealed the purchases of the cameras themselves, as well its subscriptions to national databases that collect and sell the location data gleaned from private and law-enforcement ALPR systems. An April 2015 e-mail sent by a sergeant in CPD and the city’s shared technology unit indicates that four of the department’s ALPR units were paid for with forfeiture proceeds. A stand-alone ALPR system, also purchased with forfeiture money, was installed at Homan Square in 2010, according to a payment sheet obtained by the Reader.

Perhaps the most controversial surveillance technology used by CPD is the cell-site simulator, commonly referred to by branded device names including Stingray. The device scoops up information from any nearby cell phones indiscriminately, meaning that information from untargeted and innocent people in the area is collected in the course of their operation. It can also deny service to phones in the vicinity, gather location data, and intercept calls and messages. Chicago police have purchased more than $417,000 worth of cell-site simulator equipment since 2010, exclusively with the use of forfeiture money.

In July, Governor Bruce Rauner signed a bill, championed by the Illinois ACLU, which demands that police get a warrant for Stingray-enabled investigations and otherwise restricts the use of such devices. Asked about the role of forfeiture money in the procurement of the technology, the civil liberties group’s policy attorney Ruddell says: “When you have tools being acquired in ways that are not subject to oversight, that’s a real concern.”

Ruddell and others are now making attempts to reform civil forfeiture in Illinois. The myriad problems they see in the process include not only the reporting and disbursement of forfeiture income, but also a legal process that is stacked against claimants like Willie Mae Swansey.

When a Chicago police officer seizes a person’s car, the department has just five days to notify the Cook County state’s attorney’s office if it wants to seek permanent forfeiture. That period jumps up to 52 days if it’s cash the police want to keep. (Either way, within 14 days of the initial seizure, a judge will determine whether the police and the prosecutors have probable cause to keep the assets.) The state’s attorney’s office then has 45 days to notify all potential claimants that the state is moving to keep their cash, vehicle, or other asset.

In order to have a chance at getting their property returned, claimants must put down a bond toward their asset when first submitting the official paperwork. This means that Swansey had to pay $140 (10 percent of her car’s value) just to start the process. Then, to appear in court, she had to pay an additional $177 fee.

To Swansey, who lives on a $655-per-month social security check, these costs are substantial. Successful claimants will have 90 percent of their bond returned; unsuccessful claimants get nothing back.

“This is just a shame,” Swansey says. “It’s a rip-off.”

Like Swansey, most claimants can’t afford lawyers to help them navigate the often confusing process. Because it’s a civil proceeding, and not a criminal trial, the state offers no public defenders.

“You see a lot of poor people that are unrepresented, that are representing themselves,” says Jonathan Brayman, a criminal defense attorney with the law firm Breen & Pugh who has argued many civil forfeiture cases at the Daley Center. Although Brayman and others in his practice have been successful at forfeiture court, “it’s tough to prevail,” he says. Even with a lawyer, the claimant’s burden of proof is so high that it often makes more sense to accept a settlement worth a fraction of what was taken.

Whereas prosecutors only need to meet the legal standard of probable cause—the same low bar police officers must meet in order to search a vehicle—Swansey and other claimants must show a preponderance of the evidence—a more stringent legal standard than probable cause—to prove they obtained their money legally or that they didn’t know their car was used in a crime.


—A 2012 CPD INTERNAL MEMO REQUESTING FORFEITURE MONEY TO PAY FOR WIRETAPPING EQUIPMENT
 


Brayman has helped argue two class-action lawsuits—Gates v. City of Chicago and Anita Alvarez v. Smith—that brought some relief to people trying to navigate the forfeiture process. Gates, which included a class of nearly 40,000 plaintiffs, forced CPD to better account for assets when they are first seized from arrestees, while Smith shortened the length of time the Cook County state’s attorney’s office had to notify potential claimants and schedule hearings for those hoping to have their assets returned. In hearing Smith, the U.S. Supreme Court noted that claimants in Illinois could be forced to wait up to 142 days before forfeiture proceedings began, while members of the Smith lawsuit waited between 11 and 40 months for their cases to be resolved.

But reform efforts that seek to limit or end civil asset forfeiture in Illinois must confront a cluster of state laws that include forfeiture provisions, such as those for driving with a suspended license and the sale of counterfeit goods, as well as numerous drug laws like the Cannabis Control Act and the Controlled Substance Act.

“There are probably 25 or so statutes in the code that authorize some form of forfeiture,” Ruddell says. “It’s just like this many-tentacled beast.”

There’s also the assemblage of prosecutor and police associations—including the Illinois State’s Attorneys Association and the Illinois Drug Enforcement Officers Association—and their allies in the legislature, which want to ensure that civil forfeiture can continue unabated.

Recent reform legislation in Springfield has been met with opposition from these groups, as well as from the Cook County state’s attorney’s office.

Ruddell has spent much of the past year drafting a comprehensive reform bill that he hopes to get introduced early next year. He knows well the lobbyists that will fight the legislation, because he used to work with them as a staffer in the House Republican leader’s office. Any measure will face “the full brunt of law enforcement opposition across the board, no matter how modest or sweeping the reform is that you’re proposing,” Ruddell says.

Neither CPD nor outgoing Cook County state’s attorney Anita Alvarez would comment for this story. Kim Foxx, who defeated Alvarez in March’s primary election after touting her “transformative” approach to reforming the criminal-justice system, also declined to comment on civil forfeiture.

But Eric Carter, then deputy chief of CPD’s Bureau of Organized Crime, defended civil forfeiture at a 2015 conference for the International Association of Chiefs of Police.

“It’s not policing for profit,” Carter said, “but you wanna be able to say, if I’m going to cripple an organization and arrest everybody, I want to take every viable means they have of trying to recoup and come back. I want to eliminate them totally and take their assets.”

The Institute for Justice’s McGrath sees this argument as a canard.

“Nearly all of the reforms that the ACLU and my law firm and others are advocating do not change seizure laws,” McGrath says. Under such reforms, police could still seize anything they believe to be tied to a crime. Prosecutors would just have to secure a criminal conviction before someone’s property could be forfeited.

In April, McGrath was in Springfield to testify against Illinois’s poor reporting mechanisms for both seizures and forfeitures, as well as the incentives police and prosecutors have to reap the benefits of forfeited assets. The Institute for Justice has given Illinois’s use of forfeiture an overall grade of D-.

In recent years, 11 states have passed legislation that limits the practice of civil forfeiture, with the most sweeping reform having passed in April in New Mexico. McGrath calls that bill “the platinum standard of forfeiture reform.”

New Mexico’s law eliminates incentives for police and prosecutors by directing all forfeiture proceeds to the state’s general operating fund, and closes loopholes that have marred similar laws in other states. Most strikingly, New Mexico’s law bans civil forfeiture entirely, allowing only those assets that can be proven to be tied to a crime—in criminal court, beyond a reasonable doubt—to be permanently lost to the state. Only Nebraska has passed a law as far-reaching, while nine other states require that a criminal case from which a civil forfeiture case arises must end in a conviction before the civil case proceeds.

Ruddell says that New Mexico’s is a “great law,” but cautions that it was the result of a “perfect storm” of political winds that allowed it to pass without strong opposition from law enforcement. Ruddell hopes the Illinois ACLU’s legislation will at least make sure that a civil case ends if the criminal case doesn’t result in a conviction.

Navigating the legal status quo on her own and subsequently losing her car has left Swansey with few avenues to reclaim her freedom of movement. Relying on friends and family for rides is a burden, but she says she can’t afford to buy a new vehicle.

She looked into filing an appeal herself, but says she’s worried about navigating the appeals process without a lawyer. She called a legal aid group that may be interested in taking her appeal, but for now is waiting to hear back.

“I just pray to God these people I talked to call back,” she says, “and that they may be able to help.”   v

Read a full account of our FOIA process here.