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Sessions Out? He Never Was a Wartime Consiglieri.
Jeff Sessions, has recently been referred to by the president as beleaguered. Had the president known the AG would recuse himself about all matters Russia I doubt he would have hired him. Obama got away with murder by having his AGs obstruct, deny, and contempt their way through 8 years of scandals that were never looked at thoroughly.
Sessions can’t help with Russia. Sessions not investigating Clinton or the last admin. Sessions Sessions Sessions not not not helping with Trump’s Gordian knot. Bet he’s gone.
It will matter how it looks but Mueller and the dems need to be getting the same treatment as the GOP did during the Obama administration. Abuse. More abuse. Closed doors.
For all his faults Giuliani will do what is needed, he or another wartime consiglieri will be called upon.
Published in General
Innocent owner defenses are affirmative defenses. Affirmative defenses all require the person asserting the defense to prove their case. Do you believe that all affirmative defenses are unconstitutional? Do you feel better about forfeiture in jurisdictions that have no innocent owner defense?
So you’re admitting that your previous claim that the burden of proof is on the government was incorrect?
If the government cannot prove a crime they have no authority to seize property. Calling it an “affirmative defense” to assert your rights in this matter is a mockery of justice.
Which other of the claims you’ve been making were incorrect?
Do you find using rhetorical questions to change the subject to your latest constructed strawmen arguments and effective way of distracting from your incorrect statements?
Addendum: An “affirmative defense” means that the defendant admits that he committed the crime but wasn’t culpable due to mitigating factors, insanity, extreme emotional distress, blackmail, etc. “I didn’t do anything,” is not an affirmative defense.
Here we come back to the property being held to be guilty.
Your nephew borrows your car to go on a “job interview”, gets pulled over, the cops smell pot, search the car, and find a baggie full that the nephew had quickly stuffed under the seat. They impound your car, and you have to spend many months (taking time off of work for hearings, etc.) and tens of thousands of dollars in legal bills to try to get your car back, because it has in effect been found guilty (preponderance of evidence) of transporting dope, your property rights be damned. What if the car was only worth 8 grand?
Many lawyers see no problem with this situation. As long as you got your car back eventually, “the system worked.” Hell, even if you didn’t, many would argue the system is sound — you just should have gotten a better lawyer.
No, the way that trials work is that the plaintiff or prosecutor has to make the case; whatever the elements of the crime, tort, breach, or whatever, the person bringing the charge has to prove them. The burden is on the person making the claim. So, for civil asset forfeiture, the government might show that a car was used for drug smuggling.
Sometimes the defense is not that the guy did not do the things he’s accused of doing, but that there’s some reason that the usual penalties for that thing should not apply. For instance, if the government has already shown that you’ve intentionally shot a dude in the head, you might admit that you’d done so, but claim that it was done in self defense. That would be an affirmative defense, and the government does not have to show beyond a reasonable doubt that you were not acting in self defense. Rather, you have to demonstrate that you were.
In the case of civil asset forfeiture, it might be that while you accept that the car was used for criminal purposes, this was done without your permission, involvement, or negligence. In some states, that provides an affirmative defense called the innocent owner defense.
Does that make sense?
It’s in part the assertion of ownership that’s affirmative. You’re saying that the criminals weren’t using the asset as of right because it was yours, not theirs.
There are other instances of “I didn’t do anything” being an affirmative defense. The Fellow Servant rule is an example, as is, under some circumstances, a statute of frauds defense.
If what you’re saying is obviously true, can you cite a Court justice who argues it or someone who has put this in a Court brief?
The case doesn’t sound particularly plausible, but I agree that it would be terrible if it happened. This is a state law matter, so pick a state and we can go through why it would be unlikely if you like.
Still, there are lots of terrible things that happen and many abuses. My argument with Umbra is not “this is a great thing and there are no problems” but “your dislike for this thing is not enough to make it unconstitutional”.
What a rude and dishonest way to have a conversation. No one is arguing that his dislike for the practice makes it unconstitutional.
@jamesofengland
I do not think that my bank should be required to report on my transactions to the government without a warrant. I do not think the government should track my phone calls in any capacity without a warrant. I do not think the government should order Apple or anyone else to crack their own security.
All these things have happened right now, and all of them you appear to be OK with.
As far as jerks in power, my guess is, you have not been on the receiving end of petty uses of power in your life. Maybe it is an age thing. I have seen enough, from HOA to Federal law to understand that people with power will use it to dominate others. It is a matter of fact. Only the rare person won’t.
Finally, to say that cash is not real property is nuts. Oh, you can stand on some legal point, but in the real world, cash is mine. Gold is mine. The PS4 in my living room is mine. Based on what you are saying, the government can just take anything I can move about (including my car) and that is perfectly “OK” with you, because that is how someone with a law degree interprets our rights.
I know what my rights are, from God, and I do not care if the law is written in such a way to take justify the state taking them from me. Government is a necessary evil. It is in no way, every good. At best, government is neutral. Now, @jamielockett and I might disagree on when it is evil and when it is neutral, and have heated discussions on it, but I don’t think I am going out on a limb to say we are in agreement on this general point.
It is clear, James, that you do not see government as evil. That is the fundamental difference in this discussion.
Point of clarification: by real property James means land and the buildings on that land as derived from the Spanish Real Property or Kings Land. He does not mean real as in the English definition of real. In this case it is a precise legal term that I don’t think really helps further the discussion.
Rights do not come from law.
Why is the case not plausible? While I made up this particular hypothetical, it’s based on numerous similar cases that I’ve read about over the years. No, I don’t have a citation — this isn’t a court of law. Please show me, based on the statue you linked above, why this scenario couldn’t happen.
We’ve been discussing federal law. The legal code you linked to earlier was a federal statute. The action that started this whole discussion was Sessions expanding federal civil forfeiture, giving police the ability to abuse the system even in states that have attempted to limit abuses in their own laws. Why do you now think this is a state law matter?
At what point does a law that allows “terrible things” and “many abuses” to happen cease to satisfy the requirements of Due Process that the Constitution requires?
My god. You really believe that, don’t you?
This is why people hate lawyers. They insist a document doesn’t mean what the plain text says, and then accuse the rest of us of simply, “not liking” or worse, “not understanding,” their valuable insight.
I pray that I never have to rely on someone like you to defend my rights.
I would hire James to represent me at the drop of the hat. I don’t think I do much international trade though.
His argument that it is unconstitutional has repeatedly used arguments that it is bad, criticisms of language, and such. There’s no precedent, originalist arguments, or the sort of thing that lawyers (like Umbra) use to analyze constitutionality when they’re being serious about it.
The plain meaning of requiring process is that you need process; notice and an opportunity to be heard. That’s a valuable thing. When people start saying that, eg., the right to have the government act through proper procedural channels means that the government cannot outlaw abortion or practice civil asset forfeiture, to pick two of the more popular arguments along those lines, it’s kind of hard to see how they’re talking about plain language.
Just off the top of my head; I would be surprised if you’d had government guns pointed at you in anger as often as I have; it’s my hope that my 40s are my second decade in which this does not happen. The most valuable work I’ve done in my life was cut short because political disagreements among my bosses meant that it appeared likely that I’d be arrested on trumped up charges. That work involved dealing with bureaucratic abuses as a daily staple. Many of my favorite possessions are still in Iraq (or maybe destroyed). In other legal jobs, I’ve almost always had some element of compliance in my job description.
Before Mrs. Of England, the most important person not to be a blood relative of mine was the daughter of my girlfriend of six years, the girlfriend not so far behind. Those relationships were finally destroyed by an immigration bureaucrat who misread an academic transcript of mine (he thought that “Semester 3, 2005” meant some time in 2005, so I was fraudulently claiming the dates I was claiming, when the final semester of the 2005 academic year was in the Summer of 2006) and was then unable to fix his decision. Boom; excluded from the US. I spent far more time and money from 2011-2014 on immigration efforts than on any other endeavor. A considerable portion of my savings is currently tied up in a bankruptcy estate; I don’t know if you’re familiar with the process, but it’s not light on the bureaucratic frustration. I’ve missed four out of ten Christmases with my family in the last decade, each thanks to bureaucratic failings.
My grandfather died earlier than he ought to have, with less mental capacity, and less comfortably, because I wasn’t effective at fighting a government health bureaucracy. Mrs. Of England’s pregnancy was later and more troublesome for the same reason; it’s still not clear if that’s going to result in any critical issues. When Mrs. Of England came to the US, we spent forever trying to demonstrate to various states that she existed and thus could purchase health insurance. Because the days spent in DMVs and schools where they’d set up temporary registration centers were not enough, I was kicked off my health insurance on January 31st, 2016 (I was married, so couldn’t continue to have my “single” insurance, but couldn’t get a joint policy with my wife, so Obamacare cost me my coverage). On February 6th, I broke my leg and dislocated my shoulder. I’ve helped friends through post-suicide attempt reconstruction of their lives after traumas in which bureaucrats were heavily involved. I’m substantially poorer because US financial regulations are terrible in their treatment of overseas property.
I was discussing a statute that talks about real property and didn’t translate it out of statutory language. If I had used the synonymous term “real estate” would that have been less bothersome?
The difference is not that the government doesn’t have to prove its case with moveable property and investments, it’s just that there are sometimes exigent circumstances that require that things you can spirit away be secured on an emergency basis, whereas it’s very difficult for the government to establish that with land and impossible under this statute.
Sure. If your position is that God says that you should have a requirement that the state demonstrate your guilt beyond a reasonable doubt rather than by a preponderance of the evidence or that a warrant is required to monitor your metadata, my argument has not been with your position. I’ve been arguing not about what your rights are in the sense you describe them, but what the written law describes your rights as being; if God says that something is wrong, but the Constitution does not, the bad act is not unconstitutional. That said, while we haven’t been having that discussion, I’d love to start now. What scripture you derive your claim from, or is it from prayer and personal revelation?
Aside from the Church and maybe the family, I can’t think of an institution that I couldn’t agree to look at as a necessary evil. If you’re familiar with Nozick’s definitions of necessessity (the man who works to live works of his own free choice and such), I think you’ll agree that it’s pretty easy to see a strict definition of necessity isn’t being used here. Again following Nozick (ironically, a super libertarian guy), I like to think that you’d agree that defining necessity tightly, you’d agree that you’d come to a description of government as a [very good] evil. The US government provides us with a lot of enormously positive things that one doesn’t find either in anarchy or in other governments; we have pretty fantastic abilities to trust that our contracts will be upheld, that our homes will avoid invasion, that judicial decisions will be arrived at without bribery and such.
Nonetheless, all non-trivial institutions, including the Church and the family, involve tremendous amounts of abuse. In this fallen world, horror is fractal. The closer you look at society, the more dimensions of awfulness you will discover. Government interactions with people are generally pretty terrible, in part because the government often has tremendous power and because people often interact with the government at their lowest moments. My desire for government to be informed in its decisions is not based on a belief that an informed government will not be abusive, but on my experience in dealing with governments, and sectors of government, that were more efficient in processing data and governments that were less so. They’re both lousy to deal with, but the ones with the greater levels of ignorance were worse.
After all you have been through, and your clear statement here, we should be in agreement about the government being as limited as possible while still being able to do its job.
What appears to be happening here, is that we are making arguments about rights, and you are making arguments about law.
By the way, when I say my rights come from God, I am not quoting the Bible. I am quoting another document:
And when I say a right does not have to be spelled out:
So, that is my reference to parchment.
My problem with this is the IRS. It is very informed about me, and yet it is one of the most abusive departments there is. Or to put it another way, the more the government knows about me, the easier it will be to find a crime I committed (even if I had no intent thanks to the regulatory state), just by searching its files. Or, since one’s criminal record follows one thanks to databases, there is no way for one to get a clean start. Or, a teen who sent a naked selfie to his GF is now a “sex offender” and his life is ruined. The list goes on and on. Information is used to destroy lives.
We get some accusations of mind reading around here, but it’s pretty rare that someone admits to it.
I’m not a lawyer. I’m someone with a firm grasp of the English language, which is something they apparently drill out of you in law school.
But the government has also done awesome things for me. Seven civilian security employees died as they and their colleagues fought to protect me when Al Qaeda destroyed my office. I watched Dunkirk yesterday and was reminded of the amazing sacrifices of my grandfather and my grandfather in law. I am incredibly grateful for the smooth and efficient air travel available to me (I just hit my millionth mile with United) and for the other benefits of an exceptionally effective system protecting those I love and I from bad actors outside of government. I was partly educated in government run schools that were pretty good; part of my middle school education was substantially better than I’d have had in a private education system and worked supporting the government in its creation of a free society in Iraq.
I believe that we should have the government doing less. I put considerable time, money, and effort into advocacy for this. But I can’t look at the wonders of the modern world and see them as either plausible without government or as anything other than wonderful. Spending time in places like China, India, South Africa, and Iraq and watching the transformation as their governments become more legitimate, the radical improvements in people’s lives as parts of the country cease to be ungoverned… I cannot look at their freedom and hope for the future as anything other than a positive good.
The line about democracy is the worst system other than all the others is sorta kinda true (one doesn’t want one’s democracy to be too pure), but the analogy to government is pretty solid. There’s no way for most of us not to have people with power over us. The government’s ability to use force or to take actions that cannot be denied is sometimes regrettable, but of all the institutions I’m not related to, it’s up there for my favorite choice of institution to do that.
Specifically, a legal document.
We’re not disagreeing about whether rights are important. We’re disagreeing about what the contents of due process rights are.
Right. That’s kind of where I’m at, too. The rights that existed at the founding ought to be protected. That’s why it’s important that asset forfeiture was present at that point. There have been many cases that allege that asset forfeiture is unconstitutional, but the Ninth Amendment is rarely even alleged precisely because it’s clear that the level of process available in the early Republic was often extremely low. We simply didn’t have as many bureaucrats available then as we do now, which led to a lot of judicial procedures being more summary in nature.
Most of the burden of the IRS, for most of the people I know who are bothered by it (aside from the “taxation is theft” people), is in the paperwork, in proving up that things really are as you say they are. Also, sometimes, that you make, as you reference, as a good faith mistake.
Both of those things are way easier to clear up if you have better records. If it’s easier to distinguish between good faith mistakes and villainy and if good faith mistakes are less of a problem for the IRS, that makes it easier to go easy on the tax payer. Talk to @amyschley about her experiences and she’ll rave about the IRS and how good they were to her and Chris because they were in a part of the system that the IRS has a reasonably high degree of trust in. If you want there to be less aggressive concern with fraud and you want the paperwork to be less burdensome, having the IRS be able to discover fraud more easily and having the evidence be easier to gather are in your interest. If you want to avoid wrongful conviction, likewise. If you’re concerned about laws that are bad at distinguishing between good actors and bad, larding up the bureaucracy with regulations and prohibitions on the use of data is precisely the opposite of what you’re looking for.
That said, you’re absolutely correct that there have been abuses; we should certainly make it easier to fire, fine, and imprison civil servants who abuse their positions. This was, ironically, one of the first priorities of the early progressive movement, but also a priority of Chester Arthur, making him one of my favorite Presidents. Civil service reform is a huge issue, but for the same reason that financial regulation is crucial; most financial professionals aren’t crooks, but it’s important to keep it that way and worth going to enormous amounts of effort to take down the bad apples.
There was a poll a while back that showed that Republicans overwhelmingly think that the media are terrible for the country, while the left overwhelmingly thinks that banks are. The Democratic argument lacks the qualified defense that can be made for the Republican side of that argument, but that’s not because there aren’t abuses. It’s that treating large chunks of humanity, institutions with millions of people, many of them earnestly performing jobs essential to modern society functioning, as evil tends not to be a helpful way of categorizing the world. “More likely to be evil”, perhaps, or some other milder or mixed formulation; I’m not suggesting that one should look at government teachers as being as noble as private sector home health workers, nor that they’re not often, indeed mostly, misguided. Evil just seems a little strong in most cases.
It’s not mind reading to respond to arguments of unconstitutionality on the basis of arguments that a thing is bad as being an argument that the thing is unconstitutional because it is bad. It’s elementary logic.
I apologize for my mistake. Could you cite a source for your definition of due process? If you’re intending an everyday, rather than legal, definition, an ordinary dictionary, or some classical literary work, hopefully from the 18th century, would be ideal. Or, if your source is common sense, with the knowledge being internally sourced, it would be helpful if you were explicit about that, too.
James we just have to disagree. I think most bureaucrats are petty little people out to Lord their power over others. Think air travel, if less regulated would be even better. You are just more pro government than I am. I am more pro than Jamie.