David EasonMay 15

The crime of lying to the FBI is premised upon the duty to speak truthfully in response to questions posed in the course a legitimate investigation. If the investigation is not legitimate, there is no duty to speak truthfully, hence no prosecutable crime. State power cannot criminalize lies that are immaterial to legitimate state purposes. And if we allow that to occur, there will be no limit to state power.

Today's filing was long overdue. //

So, on January 4, 2017, the FBI agents and supervisors on Crossfire Hurricane and Crossfire Razor had determined there was no evidence, including in the transcripts of the calls, to support the proposition that Gen. Flynn was “wittingly or unwittingly” involved in activity on behalf of the Russian Federation that was a crime or a threat to national security.

That determination meant that had the closing of the file taken place as contemplated, any subsequent effort to interview Gen. Flynn would not be part of a pending or open investigation of him. That doesn’t mean the FBI could not interview Gen. Flynn — it means that the FBI could only interview Gen. Flynn about the specific matters still open with regard to Crossfire Hurricane. Questions put to Gen. Flynn about any other subject would not be deemed “material” to the pending investigation that justified an interview.

Whether or not interview answers given to FBI Agents are “material” is a question of fact that the jury must decide at trial. So “materiality” is an issue the government must prove as part of its case-in-chief.

The legal question is generally formulated as follows: “To establish “materiality” … it is sufficient that the statement have the capacity or a natural tendency to influence the determination required to be made.” //

FBI agents are not empowered by law to questions people on “spec”. Their questions must relate to an authorized pending investigation. We know now that the pending investigation of Gen. Flynn was set to be closed on January 4, but it was then kept open at the direction of top FBI management. Why was it kept open when there was a finding of “no derogatory information” on the original justification for opening the investigation? The transcripts of his conversations with the Russian Ambassador were known to the FBI agents who were closing the investigation. Any fertile line of cross-examination at trial would have involved running down the “pretextual” reasons that were offered — such as the Logan Act canard — for justifying keeping the matter open in order to interview Gen. Flynn. //

This goes back to the three questions I posed at the outset — 1) What are the elements of the “false statement” crime? Materiality is one element. 2) Who are the witnesses and what evidence is admissible to prove that element? The witnesses are badly compromised by expressions of bias and potentially illegal conduct. 3) Did anything happen during the course of the investigation to making proving an element difficult or impossible? The FBI was set to close out the investigation, but then decided to keep it open on transparently pretextual grounds in order to justify the interview, and there is a written record of that fact.

...when you don't have facts or law on your side, you just make stuff up and shout //

it does not support the Justice Department’s assertion that the continued prosecution of the case against Mr. Flynn, who pleaded guilty to knowingly making material false statements to the FBI, ‘would not serve the interests of justice.’”

This is her second effort to claim the “materiality” argument for her side — but it is also the second time she has done so without explaining how his answers were material, or how the position of DOJ on the issue is wrong. //

DOJ’s position is clearly articulated — FBI internal documents state that the FBI should not have been investigating Gen. Flynn at the time of his interview.

“No further investigative efforts are warranted.” Those words were written by the FBI’s Crossfire Hurricane team. In a courtroom that would be called an “Admission”. //

Who was running that investigation? The Crossfire Hurricane team was running it. What did the Crossfire Hurricane team write about the investigation? They wrote as follows:

Following the compilation of the above information , the [CROSSFIRE HURRICANE] team determined that CROSSFIRE RAZOR was no longer a viable candidate as part of the larger CROSSFIRE HURRICANE umbrella case.

Again, that’s not AG Barr, that’s not US Attorney Jensen, that’s not US Attorney Durham – that’s the “Crossfire Hurricane Team” after it spent 5 months investigating General Flynn as part of that investigation. //

Finally, we get to the “Crown Jewel” of obfuscation and misdirection – the completely bogus “Flynn was possibly compromised by his lies” nonsensical claptrap.

How exactly can Gen. Flynn be compromised when both the U.S. and the Russians knew every word said by Gen. Flynn in the conversations? How could Russia “compromise” Gen. Flynn by threatening to reveal information the US government already knew? //

That’s three times she has claimed the interview answers were “material”, but also three times she has failed to explain why and how that was the case. Three strikes and she’s OUT!!!

The DOJ motion goes into great detail as to why they were not material. Is it too much to ask that the folks clutching their pearls over the dismissal to offer up an explanation for why DOJ’s view is wrong??

The Department of Justice announced it will aid a Virginia church suing Gov. Ralph Northam after a pastor was threatened with jail time or a $2,500 fine for hosting a 16-person church service on Palm Sunday. According to Northam’s shelter-in-place restrictions, churches cannot hold services with more than 10 people.

The DOJ filed a Statement of Interest in a Virginia federal court citing freedom of religion in support of Lighthouse Fellowship Church, a congregation in Chincoteague Island, Virginia. According to the DOJ’s statement, the congregation serves, among others, recovering drug addicts and former prostitutes. //

“The church held a sixteen-person worship service in its 225-seat sanctuary while maintaining rigorous social-distancing and personal-hygiene protocols. Northam’s executive order bans in-person religious services of more than 10 people, meanwhile it permits gatherings of more than 10 people in non-essential retail businesses such as liquor stores, dry cleaners, department stores, and more. //

The DOJ believes Northam’s executive order violates Lighthouse Fellowship Church’s constitutional right to exercise freedom of religion, and argue the order specifically attacks religious gatherings while permitting secular activities to take place without restrictions.

The ballyhoo over the U.S. Supreme Court’s tiptoe around a Second Amendment decision this week might be a gun control celebration a little too soon.

The Supreme Court ruled this week in New York State Rifle & Pistol Association v. City of New York that changes made after the Court granted certiorari (agreed to hear the appeal) to the City of New York’s onerous ordinance and regulations rendered the case “moot.” That’s the ordinance that burdened the ability of the city’s gun owners to travel with lawfully owned, unloaded, and locked firearms to destinations outside the city.

While the result may be disappointing to Second Amendment advocates, the silver lining is that a Second Amendment day of reckoning may be dawning.

Justice Samuel Alito wrote a well-reasoned dissent, which Justices Neil Gorsuch and Clarence Thomas (mostly) joined, for why the case is not moot. He wrote, “By incorrectly dismissing this case as moot, the Court permits our docket to be manipulated in a way that should not be countenanced.”

Justice Alito observed that one would have expected the City of New York to continue to forcefully defend its law, as it had in lower courts. “But once we granted certiorari, both the City and the State of New York sprang into action to prevent us from deciding this case,” he continued. “Although the City had previously insisted that its ordinance served important public safety purposes, our grant of review apparently led to an epiphany of sorts, and the City quickly changed its ordinance. And for good measure the State enacted a law making the old New York City ordinance illegal.”

Justice Alito noted that the Court has “been particularly wary of attempts by parties to manufacture mootness in order to evade review.” Regrettably, that is exactly what the City of New York successfully did in this case.

Had the Court reached the merits of the plaintiffs’ Second Amendment claims, the dissenting justices, at least, would have held the City’s ordinance violated the Second Amendment, calling it “not a close question.”

The true importance of the case, however, is not the fact that the City of New York dodged a proverbial bullet, but rather what Justice Alito and Justice Kavanaugh had to say about how the lower courts have applied the Court’s holding in Heller and McDonald.

New court documents finally handed over to Flynn’s lawyer contain exculpatory evidence that has been long sought, yet concealed until now. //

Michael Flynn is the victim of one of the worst miscarriages of justice in modern times — an innocent man who was unfairly targeted by the FBI, wrongfully prosecuted by special counsel Robert Mueller, and coerced into a guilty plea under threat. //

New court documents finally handed over to Flynn’s lawyer contain exculpatory evidence that has been long sought, yet concealed until now. The charge against him should be dismissed. Then, he should sue the very people and government that persecuted him under the pretext of a legitimate prosecution. //

It is now beyond dispute that Lt. Gen. Michael Flynn committed no crimes. But, it appears that top FBI officials and prosecutors may have.

mid the coronavirus pandemic, authorities are shutting down churches, and pastors are being arrested. What does the law say about all of this?

The Supreme Court ruled Monday that for defendants to be convicted of crimes, juries must decide their guilt unanimously, not by a simple majority or any other fraction. If that seems obvious, it may be because in the federal judiciary and the courts of 48 states, this is already the law and has been for a long time. Oregon and Louisiana were, until this week, the only outliers.

In applying the Sixth Amendment to the entire nation, the court ensured defendants in those two states could avail themselves of its full meaning of right. More than that, the opinion by Justice Neil Gorsuch struck a blow for originalism, the theory that the words of the Constitution should be interpreted consistent with the public understanding of them at the time they were enacted.

That he did so with the concurrence of three liberal justices (Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor) and one conservative (Brett Kavanaugh) shows originalism is not just a theory to advance conservative ideas. It is a theory about how to find the truth of a thing, and how not to impose a judge’s own opinion in place of the law. //

In 2020, Gorsuch finds it baffling that “the plurality subjected the ancient guarantee of a unanimous jury verdict to its own functionalist assessment in the first place.” Instead of a justice’s own opinion trumping all, Gorsuch eloquently calls for a humble approach to the law:

When the American people chose to enshrine that right in the Constitution, they weren’t suggesting fruitful topics for future cost-benefit analyses. They were seeking to ensure that their children’s children would enjoy the same hard-won liberty they enjoyed. As judges, it is not our role to reassess whether the right to a unanimous jury is ‘important enough’ to retain. With humility, we must accept that this right may serve purposes evading our current notice. We are entrusted to preserve and protect that liberty, not balance it away aided by no more than social statistics.

Humility is the essence of originalism. When we read any document, we interpret the words according to how they are commonly understood. That is so self-evident, it is hard to imagine doing it any other way. For older works, where the meanings of words may have changed over time, we look to see what the author meant by asking how his audience at the time would have understood it. A more strained reading of things is usually an attempt to prove a point not contained in the text, grafting the reader’s wishes onto the writer’s words.

Judges in the ’60s and ’70s often did not even bother with the strained reading, instead inventing balancing tests they thought best reflected the way the rights and benefits enshrined in the law should apply. That’s not a bad idea for the people writing the law: the legislature. But for a profession dedicated to merely interpreting the law, it is moral malpractice. //

Gorsuch’s historical analysis of the meaning of trial by jury in 1791 is thorough and conclusive. When the Sixth Amendment was written, “unanimous verdicts had been required for about 400 years,” Gorsuch writes. “If the term ‘trial by an impartial jury’ carried any meaning at all, it surely included a requirement as long and widely accepted as unanimity.”

The Department of Justice (DOJ) announced it will take action in a religious liberty case involving churches in Greenville, Mississippi, where police officers issued $500 tickets to church members who refused to leave the parking lot for a drive-in Easter church service.

The DOJ told Fox News they believe the court filing “strongly suggests that the city’s actions target religious conduct.” The DOJ said the United States files in cases that have “important issues of religious liberty in courts at every level, from trial courts to the Supreme Court of the United States.”

Attorney General William Barr issued a statement giving guidance on how the DOJ should work with religious-liberty cases.

“Religious liberty is a fundamental principle of enduring importance in America, enshrined in our Constitution and other sources of federal law,” Barr said. //

AG BILL BARR: "Government may not impose special restrictions on religious activity that do not also apply to similar nonreligious activity."

Ballots must be postmarked by Election Day, but many ballots don’t have a postmark at all. ///

What does the law say? That is all that can be decided. If Wisconsin did not make law to cover this problem, that is not the supreme court's problem.

Democrats are showing voters everyday why they should vote Republican in November.

Police in Greenville, Mississippi raided the parking lot of Temple Baptist Church during a drive-in prayer service and issued $500 fines to everyone in attendance – including many elderly congregants. //

“One of the police officers said the mayor wanted to make an example of our church,” the pastor said. “I told them to get some more tickets ready because we will be preaching Sunday morning and Sunday night.” //

church leaders decided to rig up a radio frequency where congregants could sit in their cars and listen as the pastor delivered the message from the pulpit. In other words, the church was in compliance with social distancing rules.

“The police officer said I might go to jail,” the elderly pastor said on the radio show. “If it means going to jail and if it takes that for me to keep preaching, I’ll be glad to go to jail.”

The pastor said as many as 25 cars were in the parking lot for the service and everyone was ticketed. //

Video shows police officers disrupting the service by knocking on the doors of every car. Church members were ordered to turn over their driver’s licenses. They were then issued a fine and a court summons.

Gregg Bouslog runs On-Target Indoor Shooting Range in Laguna Niguel, CA. It’s where I taught my son to shoot and where I’ll teach my daughter once the chaos lifts. //

We tried to look at just who the new firearm purchasers were and we believe that more than 60% of these individuals were first time buyers. I can’t describe the amount of fear in my staff as we had the buyers show proof of safe handling as part of the purchase process as required by law. You have never seen so many barrels pointed at sales staff and other customers. It was truly frightening. We had to keep stopping the process to give quick safety lessons. We are adding many more basic classes in the coming weeks and encouraged these buyers to please attend. We hope they do.

More than a dozen of these buyers (men and women) actually thought that since they filled out and signed everything, they could just walk out and go home with the firearm. Several actually said they saw how easy it was to buy a gun on TV and why did they have to fill out all these forms.

The majority of these first timers lost their minds when we went through the Ammo Law requirements. Most used language not normally heard, even in a gun range. We pointed out that since no one working here voted for these laws, then maybe they might know someone who did. And, maybe they should go back and talk to those people and tell them to re-think their position on firearms – we were trying to be nice.

Most were VERY vocal about why it takes 10 days minimum (sometimes longer if the DOJ is backed up) to take their property home with them. They ask why do I need to wait 10 days if I need the protection today or tomorrow? We pointed out again that no one working here voted in support of that law.

They really went crazy when we told them that for each firearm they had to do the same amount of paperwork and they could only purchase ONE handgun every 30 days. Again, we didn’t [vote] for that law.

We had people cuss at us and stomp out when we explained that secondary identification had to be part of the paperwork, as they felt insulted that what they had wasn’t good enough. We have a number of Yelp reviews calling us names and other things about how bad we are because of this whole new buyer rush

As these revelations begin to spread among our liberal brethren in the state of California, will we see a shift in gun laws and support for anti-Second Amendment legislators? Only time will tell, but it will surely be an interesting question to ponder in the coming months and years.

The state has decided that religious practice is not “essential” during an “emergency.” That is not the state’s decision to make.

That’s why these practical matters are also completely beside the point. No government official has any legitimate authority to tell Christians how Jesus’s body and blood must be prepared or served. That is individuals’ religious prerogative. Christians have historically never allowed any secular government to dictate our religious practices, even during pandemics. And this religious prerogative is secured by Indiana’s state constitution and the U.S. Constitution.

“All people shall be secured in the natural right to worship ALMIGHTY GOD, according to the dictates of their own consciences,” says Indiana’s state constitution. “No law shall, in any case whatever, control the free exercise and enjoyment of religious opinions, or interfere with the rights of conscience” (emphasis added). //

There is no medical or public health reason to ban churches from their own religious activities within the same parameters that apply to other organzations, such as the 10-person limit. Even that limit in Indiana has been discriminatorily applied against religious worshippers. It still does not apply to places like grocery stores, which are allowed unlimited numbers of shoppers.

The state has decided that religious practice is not “essential” during an “emergency.” That is not the state’s decision to make.

That’s why these practical matters are also completely beside the point. No government official has any legitimate authority to tell Christians how Jesus’s body and blood must be prepared or served. That is individuals’ religious prerogative. Christians have historically never allowed any secular government to dictate our religious practices, even during pandemics. And this religious prerogative is secured by Indiana’s state constitution and the U.S. Constitution.

“All people shall be secured in the natural right to worship ALMIGHTY GOD, according to the dictates of their own consciences,” says Indiana’s state constitution. “No law shall, in any case whatever, control the free exercise and enjoyment of religious opinions, or interfere with the rights of conscience” (emphasis added). //

Some people believe that there are more important things than physical health. Freedom. Protecting the nation’s poor and its future by not destroying our economy and tax base that uphold myriad already strained social welfare programs. Worship. Christians especially have historically placed obedience to God above their physical safety and very lives. We are in fact commanded to do so. For us, “to die is gain.” This elevation of health above all else has quickly become a competing god.

The plaintiffs wanted to investigate possible racial discrimination in online job markets by creating accounts for fake employers and job seekers. Leading job sites have terms of service prohibiting users from supplying fake information, and the researchers worried that their research could expose them to criminal liability under the CFAA, which makes it a crime to "access a computer without authorization or exceed authorized access."

So in 2016 they sued the federal government, seeking a declaration that this part of the CFAA violated the First Amendment.

But rather than addressing that constitutional issue, Judge John Bates ruled on Friday that the plaintiffs' proposed research wouldn't violate the CFAA's criminal provisions at all. Someone violates the CFAA when they bypass an access restriction like a password. But someone who logs into a website with a valid password doesn't become a hacker simply by doing something prohibited by a website's terms of service, the judge concluded.

"Criminalizing terms-of-service violations risks turning each website into its own criminal jurisdiction and each webmaster into his own legislature," Bates wrote.

Bates noted that website terms of service are often long, complex, and change frequently. While some websites require a user to read through the terms and explicitly agree to them, others merely include a link to the terms somewhere on the page. As a result, most users aren't even aware of the contractual terms that supposedly govern the site. Under those circumstances, it's not reasonable to make violation of such terms a criminal offense, Bates concluded.

https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2016cv1368-67

Google v. Oracle America:

“(A) current legal case within the United States related to the nature of computer code and copyright law.

“The dispute centers on the use of parts of the Java programming language’s application programming interfaces (APIs), which are owned by Oracle, within early versions of the Android operating system by Google.

“Google has admitted to using the APIs…but argues their original use of the APIs was within fair use.”

Welcome to the U.S. Copyright Office Fair Use Index. This Fair Use Index is a project undertaken by the Office of the Register in support of the 2013 Joint Strategic Plan on Intellectual Property Enforcement of the Office of the Intellectual Property Enforcement Coordinator (IPEC). Fair use is a longstanding and vital aspect of American copyright law. The goal of the Index is to make the principles and application of fair use more accessible and understandable to the public by presenting a searchable database of court opinions, including by category and type of use (e.g., music, internet/digitization, parody).

The Fair Use Index tracks a variety of judicial decisions to help both lawyers and non-lawyers better understand the types of uses courts have previously determined to be fair—or not fair. The decisions span multiple federal jurisdictions, including the U.S. Supreme Court, circuit courts of appeal, and district courts. Please note that while the Index incorporates a broad selection of cases, it does not include all judicial opinions on fair use. The Copyright Office will update and expand the Index periodically.

A videographer spent two decades documenting the salvage of the Queen Anne's Revenge, and when North Carolina put his work online without permission, he sued. //

Ruling unanimously in favor of states' rights on Monday, the U.S. Supreme Court said that a videographer who spent two decades documenting the salvaging of Blackbeard's ship cannot sue the state of North Carolina in federal court for using his videos without his permission. //

Writing for the Court, Justice Elena Kagan pointed to several precedents over the past 26 years in which the justices have barred such lawsuits. True, she said, Congress had explicitly and clearly enacted legislation allowing such federal lawsuits. But that legislation was enacted before the Supreme Court had begun reading the 11th Amendment to bar such suits.

Mainly, though, the court's opinion was couched in terms of deference to precedent--namely in this case, the precedents of the last 26 years. "To reverse a decision, we demand a special justification over and above the belief that the precedent was wrongly decided," Kagan wrote. "And Allen offers us nothing special at all." //

Although the decision was unanimous, there were two concurring opinions. Justice Clarence Thomas refused to join those sections dealing with deference to precedent. And Justice Stephen Breyer, joined by Ruth Bader Ginburg, joined "in the judgment." //

Breyer had a little fun at Kagan's expense, declaring that in his view, under the Constitution Congress may, as it did in this case, require states that "have pirated intellectual property...to pay for what they have plundered. "

Joshua Schulte, the CIA employee standing trial for leaking the Wikileaks Vault 7 CIA hacking tools, maintains his innocence. And during the trial, a lot of shoddy security and sysadmin practices are coming out:

All this raises a question, though: just how bad is the CIA's security that it wasn't able to keep Schulte out, even accounting for the fact that he is a hacking and computer specialist? And the answer is: absolutely terrible.

The password for the Confluence virtual machine that held all the hacking tools that were stolen and leaked? That'll be 123ABCdef. And the root login for the main DevLAN server? mysweetsummer.

It actually gets worse than that. Those passwords were shared by the entire team and posted on the group's intranet. IRC chats published during the trial even revealed team members talking about how terrible their infosec practices were, and joked that CIA internal security would go nuts if they knew. Their justification? The intranet was restricted to members of the Operational Support Branch (OSB): the elite programming unit that makes the CIA's hacking tools.

The jury returned no verdict on the serous charges. He was convicted of contempt and lying to the FBI; a mistrial on everything else.

Student loan debt affects the life choices of young Americans. Tens of thousands of dollars in debt prevents or delays the average college graduate from getting married and starting a family, which is the institutional bedrock of American society and one of the primary indicators of membership in the Republican Party. Voters who are married, particularly those who also have children, are more likely to vote Republican than unmarried voters. Gallup concluded that “marital status remains one of the most reliable predictors of party identification.” //

The bipartisan Employer Participation in Repayment Act (S.460)—supported by Senator Mitch McConnell, as well as the entire Republican leadership, and 33 of the most conservative lawmakers in the Senate—would allow employers to contribute tax-free dollars towards paying down their employees’ student loans. They already can contribute—tax-free—up to $5,250 annually for workers who are still students; and this bill would expand the benefit to graduates. In total, the bill would save the federal government and taxpayers over $100 billion within this decade.

This is a free-market solution that does not expand the government’s power. Rather, it allows the private sector to help its employees. At the same time, it removes a serious financial barrier and would make it easier for Americans who graduated with student loan debt to start families. //

cosponsored the House’s version of the Senate bill, H.R.1043.