A cover charge can happen when a corrupt law-enforcement agency, like the sheriff's department here in Greene County Missouri, has abused a citizen and needs a way to ward off a civil-rights lawsuit. The idea is to bring false criminal charges against the victim, hoping that will intimidate her into avoiding civil remedies.
A reasonable person might say, "My God, I can't believe cops would be underhanded enough to do that!" But quite a few of them are, and published reports indicate cover charges are not uncommon. From our post on the matter, published on February 11, 2016; Carol's arrest, based on cover charges for assault on a law enforcement officer and trespass, came on January 30, 2017:
An Occupy Wall Street activist named Cecily McMillan was the apparent victim of a "cover charge" in May 2014 in New York City. Aviva Shen also covered the McMillan story for Think Progress:
"Occupy Wall Street activist Cecily McMillan has been sentenced to 3 months in jail and five years probation for assaulting a police officer, a charge that sparked outrage and protests earlier this month. McMillan, who said she threw her elbow up behind her instinctively after the officer groped her breast, faced up to seven years in prison for felony assault. The perceived injustice inspired multiple petitions on McMillan’s behalf and close public scrutiny — but could the 25-year-old graduate student’s case help bring attention to others like her?
"Despite medical photographs of McMillan’s bruises, including a hand-shaped mark on her breast, Officer Grantley Bovell said McMillan attacked him unprovoked, and prosecutor Erin Choi said McMillan’s claims were “so utterly ridiculous and unbelievable that she might as well have said that aliens came down that night and assaulted her.” Grainy cell phone footage of the altercation makes it unclear whose version of events is accurate."
McMillan almost certainly was the victim of a cover charge, but she likely was convicted because the officer did suffer an injury when her elbow made contact near his eye -- and she had the misfortune of drawing a clueless jury and a prosecution-friendly judge. In Carol's case, no one has alleged an officer suffered the slightest scratch -- not even in Deputy Debi Wade's probable cause statement, which is a work straight out of Fantasy Island. (More on that in a series of upcoming posts.)
Missori deputy Debi Wade
(From Facebook)
So how is it that my wife, the victim of an assault, is facing charges for assault? According to Aviva Shen, of Think Progress, it happens quite often. Our guess is that the worse the cops abuse you, the more likely they are to bring charges that you abused them. From our "cover charge" post, quoting Shen's work:
McMillan’s conviction sparked a flurry of media coverage and a protest in Zuccotti Park. But her predicament is unfortunately quite common. Police often charge victims of brutality with anything from assault to disorderly conduct to discredit their claims of police misconduct. While it is nearly impossible to compile exact statistics on this practice, sometimes called “cover” arrests, video recording has helped expose a number of cases where police have wrongfully charged people or fabricated police reports to justify violence.
For instance, another Occupy activist was cleared last year of charges that he “charged the police like a linebacker” after video footage showed cops tackling him as he was trying to get up. In another high profile case, police charged two University of Maryland students with felony assault, claiming they attacked officers on horses after a basketball game. A month later, a video emerged showing the cops beating an unarmed student with batons over a dozen times for no apparent reason.
Greene County Sheriff Jim Arnott knows he has problems for what was done to Carol. He's only heightened his problems by causing her to be falsely arrested and imprisoned. Landlord Trent Cowherd and his lawyer, Craig Lowther, likely know they have problems -- especially since Missouri law requires rent to be late by at least one month before eviction proceedings begin, and our rent was behind by five days. That means Cowherd and Lowther had no lawful grounds to seek an eviction when they did (via a rent and possession petition), and Arnott's gang had no grounds to be on the property when they were.
Have cops and their associates ever paid a dear price for bringing a "cover charge"? We don't know, but we intend to make sure those responsible for Carol's cover charge pay a dear price, indeed.
U.S. Senator Al Franken (D-MN) said last night he could reach no other conclusion than Trump attorney general Jeff Sessions committed perjury when he falsely stated under other that he had not communicated with Russian officials during the 2016 campaign.
Franken, who asked the questions that led to Sessions' false statement in a confirmation hearing, raised the perjury issue in interviews with CNN and MSNBC. In both interviews, Franken noted that Sessions (a former U.S. senator from Alabama) on Monday had filed a letter and supplemental answer to Congress, stating that his oral statement to Franken was "correct."
Franken called Sessions' letter "ridiculous" and "absurd." From an interview with CNN's Jake Tapper (see full interview at top of this post):
That's a ridiculous response. It's not a clarification at all. . . . He answered a question that he asked himself . . . and he answered it falsely.
I've been cutting him a lot of slack, refusing to say he lied, I wanted to wait for this letter to come out. It's hard to come to any other conclusion but he perjured himself. . . .
I think he should come before the committee and explain it. No one asked him about the Russian ambassador; he's the one who volunteered that information, that he didn't speak to anybody, and it turned out he had met twice with Russian ambassador, once in a private meeting.
He had seven weeks to notify us. This is about Russian government hijacking our election, and whether there was any collusion in that interference with the Trump campaign. . . .
It's very clear I did not push [Sessions] into saying, "I didn't meet with the Russians."
Democrats on the committee asked why he didn't, in seven weeks after he misled us there, why he didn't correct it, and the response was absurd. He said, "Having considered my answer responsive and no one having suggested otherwise, there was no need for a supplemental answer. . . ."
This is serious stuff. He is the second administration official who has lied about contact with the Russians, and it all goes to the fact Russians interfered with our elections. And the question is: Did the Trump campaign and its people collude with Russians?
What do Russians have on Trump? Why does he say all of these positive things about Putin? Why lie about taxes. Getting more and more disturbing all the time.
Franken first came to widespread public notice as a comedian. But he sees nothing funny about the evolving KremlinGate scandal:
I don't think it was gotcha question. Would you recuse yourself was basically what I was asking. Instead, he said he hadn't met with Russians, and of course, he had.
I think clear it's that something is desperately wrong.
The letter just sort of insults the intelligence in a way that is mind-boggling. That's why I say there is no other conclusion but that he committed perjury.
I would like him to come testify before the committee so he can explain it. This letter is ridiculous and insults the intelligence. . . . This is getting stranger and stranger. The clock is ticking. Was Trump campaign colluding to change our election?
Trent Cowherd and his wife, Sharon
(From Facebook)
Deputies who caused my wife's broken arm during an unlawful eviction in September 2015, according to their department's policies, were supposed to "stand by" while the landlord evicted us and regained the property.
Policies of the Greene County Sheriff's Office make it clear that deputies are to play a passive role in an eviction, providing a presence to help ensure a potentially flammable situation does not catch fire. In our situation, Cowherd, or his representative, had the duty to evict.
So why did more than a half dozen deputies barge into our apartment, with assault weapons and handguns drawn? They probably would claim ours was a special situation because I allegedly had called 911 and threatened to shoot anyone who attempted to unlawfully evict us. Except I never made any such call, and an investigation will prove that.
Did someone place such a fake call under my name? Did someone falsely tell law enforcement I had made such a call? If so, said person soon will have serious legal issues, including possible criminal sanctions. The issues might be particularly thorny when you consider that deputies broke my wife Carol's arm so severely that it required trauma surgery -- and she's facing bogus criminal charges in an effort to cover up police misconduct.
Aside from that, it's clear the deputies who evicted us violated their own policies. This is from the "Civil Division -- Frequently Asked Questions (FAQ) " section of the Greene County Sheriff's Department Web site:
The tenant should be served with, or the property posted with, a summons and petition notifying them that a lawsuit has been filed and will have the opportunity to be heard in court before any eviction. Upon the Landlord receiving a judgment for possession and filing for a Writ to Execute on the judgment for possession, the GCSO will schedule a date and time with the plaintiff/Landlord within five business days to stand by while the Landlord evicts the Tenant and regains possession of the property. The Landlord has the responsibility of scheduling for a locksmith and staff required for moving of property if needed.
Missouri State Statutes reference Landlord/Tenant Law RSMo. Chapters 441, 534 and 535
A law firm that represents landlords in Missouri eviction cases states on its Web site that it's standard for only one deputy to be present, and he usually remains in his vehicle during the eviction. This is from the FAQ section of the firm's Web site:
Q. Do I need to be present at the eviction?
Yes. On the day of the eviction, you must be available to “greet” the Deputy Sheriff. The Deputy will
usually pull up to the location of the eviction in a marked patrol car. Typically, the Deputy will not leave
the car. It is up to you to go to the car and identify yourself as the landlord or landlord’s representative.
You will then need to identify the entry door to the rental property and will sign a document authorizing
the Deputy to use force to enter if necessary. Generally, you either need to have a key to the rental
property so that the Deputy can enter or have a locksmith available to provide access.
Deputies hardly were on "stand-by" mode during our eviction. My wife, Carol, has the hardware in her arm to prove it.
The Russia scandal engulfing the Donald Trump administration could put Attorney General Jeff Sessions' law license in jeopardy and provide possible grounds for his removal from office, according to a Michigan law professor.
Victoria V. Vuletich, professor at Western Michigan University's Cooley Law School, said Sessions' statements to Congress, failing to disclose his communications with a Russian ambassador, could make him subject to bar discipline. That means the Alabama State Bar could play a central role in a scandal that threatens to bring Sessions' political life to an ignominious close.
The Alabama State Bar is known for its rightward political leanings and lack of strong ethical underpinnings. We have seen evidence, though, that the bar will suspend a lawyer for making false statements under oath. Would the organization impose discipline on perhaps its most prominent member? We have doubts, but Vuletich says the bar could wind up with an obligation to examine Sessions' statements to the U.S. Senate during his confirmation hearings. Says Vuletich:
As a licensed attorney, Attorney General Sessions must adhere to Alabama Rule of Professional Conduct 8.4(c), which states that it is professional misconduct for an attorney to engage in conduct involving dishonesty, fraud, deceit or misrepresentation. Failing to disclose material information can be deemed fraudulent and dishonest if the statement would lead the listener to a different conclusion than if the information had been disclosed. If a complaint is filed with the Alabama legal disciplinary agency, it is likely that Attorney General Sessions would be subject to, at minimum, a pubic reprimand and possibly suspension of his license to practice law. It would be highly inappropriate to have a sitting Attorney General be the subject of professional discipline.
Could Sessions serve as attorney general without a law license? We have not been able to find a clear-cut answer to that question, but it appears the answer is yes. Bill Clinton and Richard Nixon had their law licenses removed and remained as president. Members of the U.S. Supreme Court are not required to be lawyers. We suspect Sessions could remain as AG, even without a law license. But how bad would it look?
Attorney Bill Swatek, who has family
ties to Jeff Sessions
Vuletich suggests she would find such an outcome deeply troubling -- and she is not a lightweight on such matters. From her bio:
She is a frequent presenter on legal ethics issues. Professor Vuletich is former chairperson of the American Bar Association (ABA) Center for Professional Responsibility Continuing Legal Education Committee. She was a member of the ABA Standing Committee on Client Protection 2004-2008. She is a member of the ABA Center for Professional Responsibility Policy Implementation Committee.
Most recently, Professor Vuletich was a guest lecturer at Hertford College, Oxford University, United Kingdom.
As for the Alabama State Bar's history of imposing discipline on a lawyer for making false statements under oath, we are most familiar with a case from the early 1980s involving Shelby County attorney William E. Swatek. Here's how we described issues in the Swatek case:
In the late 1970s, Swatek represented a Pelham policeman named Johnny Bailey in an employment case. During depositions, Swatek allowed opposing counsel to use his office for what they thought was a private meeting. But Swatek surreptitiously tape recorded them. The opposing attorneys found the running tape recorder and confronted Swatek with it. He eventually told multiple bar committees that he knew nothing about the recorder, it had been his client's idea to use it. Swatek was charged with perjury, and somehow was acquitted at trial, even though the following section from the audiotape was presented to the jury:
William E. Swatek and Johnny Bailey on cassette tape taken by Paul G. Smith from Swatek's office on May 30, 1979:
Swatek: "Testing . . . one . . . two . . . three . . . four . . . five . . . "
Bailey: ". . . 'cause that's the one probably to use, or do you want to use that one?"
Swatek: "I'd rather use this one, 'cause you can't hear it at all, and I can stick it down under the desk and . . . "
Swatek obviously knew about the tape recording. He decided which recorder to use, where to place it, and he tested it. He clearly lied under oath to the bar committees about it. But still a jury -- which almost had to somehow be tainted--found him not guilty.
Swatek, in a criminal case that had to be fixed, was found not guilty of perjury. But the Alabama State Bar did suspend his license for acts of "dishonesty, fraud, deceit, and misrepresentation." -- one of at least three times the bar has publicly disciplined Swatek. You will note the "dishonesty, fraud . . . " language is the same provision Prof. Vuletich cites from Sec. 8.4(c).
Trent Cowherd and his wife, Sharon
(From Facebook)
An eviction proceeding cannot begin, under Missouri law, until a tenant is behind on rent by at least one month. My wife, Carol, and I were behind on rent by five days when we were evicted in Greene County, Missouri -- and we would not have been behind at all if a representative for landlord Trent Cowherd had not told us that we were going to be booted out whether we paid rent or not, citing a provision that was not in the lease.
This makes at least four ways our eviction on September 9, 2015, was unlawful. That is particularly powerful when you consider Carol now faces criminal charges for "assault on a law enforcement officer" and trespass, related to the eviction -- when deputies from the Greene County Sheriff's Department had zero legal grounds to be on the rental property that day. In fact, we now know they needed at least another 25 days to be there.
Court records show Trent Cowherd has been filing rent-and-possession cases since at least 1992, so he's been a landlord for roughly 25 years -- and he does not know the law on evictions? Craig F. Lowther, Cowherd's attorney, has been filing R and P cases since at least 1990, and he does not know the law? My lawyer-brother, David Shuler, was involved in our case (theoretically representing our mother, who was our cosigner), and he does not know the law?
This takes an already corrupt proceeding to a whole new level of crookedness. And Carol faces criminal charges because of it? I'd say Cowherd, Lowther, and David Shuler -- not to mention Greene County Sheriff Jim Arnott and his minions -- face a level of liability that is off the charts.
The relevant law can be found at RSMo 535.120, which reads:
Whenever one month's rent or more is in arrear from a tenant, the landlord, if he has a subsisting right by law to reenter for the nonpayment of such rent, may bring an action to recover the possession of the demised premises.
A parenthetical phrase in the statute makes it a bit fuzzy for lay readers. But its meaning becomes crystal clear when you consider language from House Bill 481, which ushered in the new provision in 2009:
(30) Changes when an eviction proceeding can commence from when the rent is six months in arrearage to when it is one month in arrearage (Section 535.120)
How about that? The wait used to be six months to begin eviction proceedings, suggesting public policy in Missouri was to give tenants a solid chance to fix rent problems before they were kicked to the curb. Given that many tenants have children, this seemed to be a humane policy for the Show-Me State. But Missouri's thuggish landlords apparently want to wipe any trace of humanity from the law books.
Has the landlord lobby paid for scores of dinners, prostitutes, and golf outings to get its way? I think you can count on it.
What about the timeline in our eviction? Here it is:
* July 31, 2015 -- Our rent is paid through this date.
* Aug. 5, 2015 -- Records at case.net (Case No. 1531-AC04535) show Craig Lowther filed a rent-and-possession petition, on Trent Cowherd's behalf, on this date. An R and P petition is one of two ways to start an eviction proceeding in Missouri. The other is called an unlawful detainer.
* Sept. 1, 2015 -- The date, under Missouri law, that eviction proceedings could begin -- if we were one month behind on rent, which we wouldn't have been.
* Sept. 9, 2015 -- We are evicted, and Carol's arm is broken by a Greene County deputy, even though the eviction was not even close to being timely, under the law.
How many ways can an eviction be unlawful? Give us a few more days, and we'll probably have six ways to Sunday. For now, we have these:
(1) Breach of contract -- Cowherd was trying to boot us because my mother wanted out as cosigner, and they claimed we had to qualify on our own to continue on a month-to-month basis. Our lease, however, contained no such provision, so Cowherd was violating his own contract.
(2) Eviction was unlawfully scheduled -- The Sept. 9 date was inside the 10-day window, from the date judgment was entered, when execution cannot take place.
(3) Eviction ignored our timely filed notice of appeal -- A notice of appeal, with proper payment of fees, puts a stay on eviction, under Missouri law. We filed our notice on Sept. 8 and notified all lawyers for parties in the case on that same day. The eviction was stayed, as a matter of law, but it took place the next day anyway.
(4) Eviction was unlawful because rent was not late for one month -- Eviction proceedings could not have started until Sept. 1, the date we would have been behind on rent by one month (although we would have timely paid if we had not been told we were being booted out regardless). Cowherd started eviction proceedings on Aug. 5, 25 days too early.
The eviction that left Carol with a broken arm, broken so badly that it required trauma surgery, has emitted a foul odor for months. The stench just got a whole lot worse.
What kind of thugs run the Trent Cowherd company? Real bad ones, it seems.
If anyone doubts that U.S. Sen. Luther Strange (R-AL) is a naked political animal . . . well, let there be no more doubt.
Before leaving office as Alabama attorney general, to replace Jeff Sessions in the Senate, Strange filed perjury charges against incoming Jefferson County District Attorney Charles Todd Henderson -- and he did it before Henderson even could take office. Now, as a U.S. senator, Strange has issued a stream of excuses for the false statements Sessions made during his confirmation hearing as Trump AG.
How does one explain Strange's wildly differing viewpoints? Could the explanation simply be that Henderson is a Democrat, and Sessions is a Republican? Does lying under oath become serious, in StrangeWorld, only when the alleged perpetrator is a member of the opposing party? The answer seems to be yes.
Attorney General Luther Strange announced the indictment today of Jefferson County’s district attorney-elect, Charles Todd Henderson, on a felony perjury charge. Henderson surrendered this afternoon at the Jefferson County Jail.
Attorney General Strange’s Special Prosecutions Division presented evidence to a special grand jury in Jefferson County, resulting in Henderson’s indictment today. This action was taken following an investigation by the Attorney General’s Office on information received from the Alabama State Bar in December of 2016.
Henderson is charged with one count of perjury under Code of Alabama §13A-10-101, which is a class C felony. Specifically, the indictment charges that Henderson did swear falsely and gave a false statement material to a proceeding before Judge Patricia Stephens in the case of Charbel Akl v. Yareima Carmen Valecillos Akl on September 26, 2016.
CAVUTO: What do you make of this? Do you think that omission of a meeting is the same as lying about that meeting?
STRANGE: Well, I think Senator Sessions did a great job in his press conference clarifying the situation that occurred and correcting the record.
I have known Jeff an awful long time. And I'm more than certain that he would never intentionally mislead anyone. And I think he made that clear. In the context of the question he was asked, it was all about the campaign. And so I think it's -- as he understood the question, it was truthful.
Jeff Sessions "would never intentionally mislead anyone"? How does Luther Strange know that? How can he justify such a blanket statement? Is Strange saying that making false statements under oath isn't a concern if he has known you for "an awful long time"?
Here is more from the strange interview with Cavuto:
CAVUTO: But much of what had been the minute before this was about surrogates and their role and their discussions with the Russians.
And that would be, if I were being asked the question, I would be thinking, all right, now, he's asking as a campaign operative here what I did.
So, that, I understand. But -- but that is a big meeting not to recall or at least add on, and just to say, well, I did meet with the Russian ambassador in my office not very far from here on other matters, as you all do, as my colleagues on the left and right do all the time.
STRANGE: Right.
CAVUTO: But he didn't do that and he didn't clarify that. And even later on, as he could have, he didn't provide an addendum even in writing or a report or a file. And that's what sort of is feeding this call for him to go way beyond recusing, to stepping down.
Now, that is probably extreme. That's political. I understand how your town works.
STRANGE: Yes.
CAVUTO: But do you think he gave them the ammunition for that by not doing the kind of things that you would think, being considered for the highest legal office in the land, you do?
STRANGE: I really don't -- I don't think he did, Neil.
I think he was very clear in his written comments when he had time to reflect on it. This was a breaking news story at the time. And so I don't think that's the case at all.
What I would point out, because I sat through the entire day of these hearings before the Judiciary Committee as a private citizen and a friend of Senator Sessions, the attitude and the methodology of going after Senator Sessions has been well-established by the Democrats.
They said certain things about his record that were totally untrue and really mischaracterized his record as a senator and as a person, frankly. And I think it was very unfair to him. I think this is a continuation of that effort. And it goes way beyond Senator Sessions.
It really goes at trying to undermine the Trump presidency.
CAVUTO: All right.
Notice how Strange pivots to Sessions' written statements, and political matters, since it's nearly impossible to defend the AG's false oral statements to Al Franken. And Strange's official comments, as reported by Alabama Political Reporter, are even more nonsensical:
US Senator Luther Strange (R-Alabama) said, “I have not been in Washington very long, but I did not think Democrats could stoop much lower than they did during Jeff Sessions' confirmation hearing. As we found out today, they can, and the hypocrisy of it is hard to stomach. For eight years, Democrats turned a blind eye to serious breaches of public trust, but they did not miss a beat in trying to undermine President Trump’s administration as it gets to work cleaning up their mess."
Memo to "Lutha": Democrats did not break the story of Sessions' false statements to Congress; America's free press, or what is left of it, did that. Again, Strange can't defend Sessions' conduct, so he tries to change the subject. And if Lutha wants a deeper understanding of hypocrisy, he should look in the nearest mirror.
Strange tries to excuse or throw up smokescreens for Sessions' conduct. But he brings perjury charges against Charles Todd Henderson for false statements that aren't even specified in the indictment.
Luther Strange is a classic postmodern political hack -- and statesmanship in America seems to be taking its dying breath.
George Washington law professor Jonathan Turley
(From youtube.com)
Some of the nation's most prominent legal experts have offered analysis on the Jeff Sessions Russia scandal that is off target, premature, or both. Their task probably is made difficult by the fact Sessions is in deep doo-doo because he answered a question he was not asked in his confirmation hearings.
I already have stated that I don't think the Trump attorney general, who got away with all kinds of sleaze while serving as Alabama's attorney general and junior U.S. senator, can survive his current pickle -- and I doubt he will make it through the coming week. Sessions might survive longer than I think, if for no other reason than Republicans control Congress, and they've indicated they intend to protect him.
The only likely avenues for Sessions to survive are prosecutorial incompetence and investigative limp-wristedness -- both of which are distinct possibilities. It's early in the process, but here are some key questions we can answer now:
* Did Sessions lie to Congress? Yes, that can't be seriously disputed.
* Is that a crime? Yes, and it can be either a felony or a misdemeanor. At a bare minimum, Sessions should be in serious trouble for lying to, or misleading, Congress.
* Did Sessions commit perjury? It's too early to answer this one. A willful state of mind is a key component of this crime, so a serious investigation almost certainly is required before making a determination on criminal charges. (My guess? Yes, Sessions committed perjury.)
* Will Sessions stay in his job? If a FISA judge OK'd wiretapping on Trump Tower, it likely captured damning evidence against any number of Trump officials, including Sessions. Even a standard investigation -- unearthing e-mails, texts, notes, memoranda, testimony of aides -- is likely to provide troubling facts about Sessions' communications with Russian ambassador Sergey Kislyak. If any investigation is led by committed, clear-eyed professionals, it's hard to see how Sessions survives.
How has this story tripped up some of our top legal analysts. Consider George Washington University law professor Jonathan Turley, a regular on various cable-news shows and a master at handling complex legal questions with succinct, understandable answers. Turley has written that, based on what we know now, Sessions was correct to recuse himself from the Russia case, but he probably did not commit perjury.
Turley reached this conclusion primarily by analyzing the question U.S. Sen. Al Franken (D-MN) asked Sessions. The problem is that Franken did not ask the question Sessions answered, as made clear in this article at the Washington Examiner. From the article, by Phillip Klein;
Now that we know Sessions did speak to the Russian ambassador in 2016, the disagreement has mostly focused on whether or not Sessions' denial of contact with Russian officials was a clear lie, a truthful assertion that he did not have contact in his capacity as a representative of the Trump campaign, or something in between meant to obfuscate the truth. But there's a weird aspect to all of this that's being neglected: Sessions did not have to volunteer that he didn't have contact with the Russians, because Franken never asked him about it.
In the relevant part of the exchange, which was posted by my colleague Pete Kasperowicz, Franken mentions a CNN story about ongoing contacts between Russia and the Trump campaign. Franken then asks Sessions: "if there is any evidence that anyone affiliated with the Trump campaign communicated with the Russian government in the course of this campaign, what will you do?
So Franken was actually asking Sessions, were he confirmed as attorney general, how he would handle evidence about any communications. Sessions could have dismissed the question, saying he doesn't want to respond to hypotheticals. Or, he could have given a generic answer, such as saying that as the nation's top law enforcement officer, he would always want to make sure that the law was followed and that evidence of wrongdoing was properly evaluated.
But he did neither of those things. Instead, he responded to a question that Franken never asked, about whether he had contact with Russians. "Sen. Franken, I'm not aware of any of those activities," Sessions said. "I have been called a surrogate at a time or two in that campaign and I did not have communications with the Russians, and I'm unable to comment on it."
Since Franken did not ask the question that Sessions answered, it seems the "question" should be put on the side burner, for now. In essence, Sessions did not answer a question; he made a simple declarative statement -- "I did not have communications with the Russians" -- and we know that is false.
Under those circumstances, it's hard to see how Sessions avoids some sort of criminal charge here. Turley provides insight on some of the less-than-perjury charges the AG could face:
Of course, there are other charges like misleading Congress and “misleading” is defined broadly under federal law. . . .
Some have suggested that this is, at a minimum, a failure to give full and accurate testimony to the Senate, the basis for the misdemeanor charge against Richard G. Kleindienst. In his confirmation hearing, Kleindienst was asked about whether anyone had spoken to him about the antitrust case against International Telephone and Telegraph Corporation (I.T.T.). He said that he had not. Later Leon Jaworski revealed a phone call in which Nixon told Kleindiesnt to drop the I.T.T. case. Kleindienst insisted that he had not thought the question was open ended but rather confirmed to a certain period.
Partisans on both sides have been quick to convict or exonerate Sessions of any wrongdoing, but no final judgment is appropriate at this time. What’s needed is a full investigation—and here’s a guide to how such an inquiry might proceed.
In public statements after the Post’s disclosure, Sessions and his supporters offered various defenses of his conduct. They said Sessions didn’t remember his meetings with the Russian Ambassador; they said Sessions was meeting with Kislyak in Sessions’s role as a senator on the Armed Services Committee, rather than as a Trump campaign surrogate, which, they argued, made his response to Franken technically accurate, given the question he’d been asked; they said, furthermore, that the conversation between Sessions and Kislyak involved diplomatic, not campaign, matters, an additional indication that Sessions’s statement to the committee was accurate in context. These defenses may have merit. All the criminal laws involving false statements to Congress are so-called specific-intent crimes; in order to be found guilty, the defendant must intend to deceive. A faulty memory is a good defense. Likewise, establishing that a statement is literally true, even if misleading, is also a valid defense.
But all of Sessions’s possible defenses, as well as the details of a possible case against him, rest on facts—facts that are not yet known. This is what an investigation should disclose. For example, was anyone else present during the meetings between Sessions and Kislyak? If so, that person might confirm whether campaign matters were discussed, and if so, how much of a focus of the conversation they were. A third party could also help determine how long the meetings were; it’s easier to forget a meeting that lasts ten minutes than one that goes on for an hour. Likewise, how often did Sessions meet with Kislyak, or with any ambassador? There is nothing inappropriate about a senator meeting with an ambassador, but if Sessions had such encounters only rarely, it would be harder to credit his explanation that he simply forgot this one.
What is central to such an investigation? Toobin spells it out:
As in most investigations, the key evidence is likely to be documents, rather than testimony, because contemporaneous records are often more reliable than memories. Did Sessions or an aide take notes about the Kislyak meeting? Are there e-mails setting it up? (If a Sessions office e-mail said, “The Ambassador wants to talk about arms control,” that would be significant and exculpatory; if an e-mail said, “The Ambassador wants to talk about the campaign,” that would be relevant in a different way.) Did Sessions himself get e-mails or memos from his staff about the Kislyak meetings in advance or as follow-ups? Those would provide useful clues about what was said between the two men.
This goes to one of the legal lessons we have learned here at Legal Schnauzer -- a guilty, corrupt, or liable party almost always is desperate to avoid discovery, whether the case is criminal or civil.
If documents like the ones Toobin describes make their way to public eyes, it likely will spell bad news for Jeff Sessions.
Jeff Sessions announces his recusal
(From slate.com)
No one should be surprised that Trump Attorney General Jeff Sessions twice met with a Russian envoy during the 2016 campaign and then lied about it to Congress. Around the country, until now, Sessions probably has been best known as the most prominent bigot in a high government position. But to view Sessions only in terms of bigotry would be to underestimate him. Those of us who lived through his tenure as a U.S. senator from Alabama know he is ethically challenged, with exceptionally poor judgment -- especially on matters of personnel and justice.
You might say Jeff Sessions is a crooked bigot, or a bigoted crook. Either way, his widely reported tendency to use racist language is not his only "distinctive" feature. He also is fundamentally dishonest, as the nation has learned in the past 38 hours or so. Sessions yesterday recused himself from any investigation related to the Trump-Russia scandal, and prominent Democrats are calling for him to resign. Even some of the nation's sleaziest Republicans are having trouble defending him, which makes us think Sessions soon will hit the exits, probably within a week.
The million-dollar questions: Did Sessions break the law? And, if so, could he lose his job — or even be charged with perjury like someone who lied in court? To find out, we reached out to several legal experts who study relevant topics. The general sense was that if Sessions didn’t commit outright perjury, he came uncomfortably close.
“I think a jury presented with evidence that he did have meetings with the Russians during the relevant time period could conclude that he perjured himself in front of the Senate committee,” Stuart Green, a law professor at Rutgers who studies the law of lying, wrote via email.
Sessions' ouster can't come soon enough for me. I lived in Alabama for more than 35 years -- and I hope to return there, sooner rather than later -- so I've seen his chicanery up close. In fact, I'm pretty sure I've felt it personally in recent days. Perhaps that's because I've reported many times on this blog about the underhandedness that seems to permeate the actions of Sessions and those affiliated with him. Here are just a few examples from the Legal Schnauzer archives:
Using "unethical conduct" to steer clear of a black judge
In a 1990s civil case, Sessions retained the Birmingham law firm of Lehr Middlebrooks Price and Proctor to represent him in a case styled USX v. Tieco, where Sessions (as Alabama attorney general) was a defendant. Why did Sessions choose that firm? Well, partner Terry Price is the nephew of U.W. Clemon, the first black federal judge in Alabama history. Hiring Price was a not-so-subtle form of "judge shopping." Clemon had built his career by representing plaintiffs and taking on powerful corporations and institutions in civil-rights cases, and Sessions knew such a judge might not view him and his activities favorably. Hiring Price forced Clemon to recuse himself, and that became such a common practice in Alabama legal circles that The Wall Street Journal wrote about it. An opinion from the Fifth Circuit Court of Appeals described such actions as "unethical conduct." But Sessions used them anyway, with the help of another Lehr Middlebrooks partner, R. David Proctor. (Remember that name.) By the way, the USX case also generated a criminal case, in which a former Alabama state judge said Sessions' office had engaged in "pronounced and persistent" prosecutorial misconduct.
Having your crony judge cheat a journalist who has reported on GOP corruption
This one gets personal. My wife, Carol, and I have two pending federal lawsuits -- "The Jail Case" (re: my unlawful five-month incarceration in Shelby County) and "The House Case" (re: the wrongful foreclosure on our Birmingham home of 25 years.) Both cases just happened to wind up with R. David Proctor. Yes, that's the same guy who helped Sessions steer clear of Judge U.W. Clemon. Perhaps as a thank you from Jeff Sessions, Proctor wound up with a lifetime appointment on the federal bench. From that lofty perch, in the Northern District of Alabama, Proctor repeatedly has cheated us in both of our cases. Gee, could that be because at least five defendants -- Jessica Medeiros Garrison, Cliff Sims, Rob Riley, Yellowhammer News, and Bill Pryor -- are closely aligned with Sessions? Proctor recently recused himself from one of our cases, when his conflicts became so glaring that even he had to acknowledge them. In fact, that sounds a whole lot like Sessions' recusal in the Russia scandal. Is this a case of "like mentor, like judge"? Has Jeff Sessions, or someone affiliated with him, instructed Proctor to cheat us in order to protect his cronies who are defendants? Given what the world has learned about Sessions in the past two days, that question is not unreasonable at all. If the answer is yes, it points to a crime called obstruction of justice -- to go along with lying to Congress, which already is obvious with Sessions in the Russia matter.
Being a closeted homosexual who is vulnerable to blackmail
One of the worst-kept "secrets" in Alabama politics is that Sessions is a closeted homosexual. D.C.-based Wayne Madsen was the first journalist to report on the subject, and he showed how the "secret" has been used against Sessions. When President Obama nominated Sonia Sotomayor to the U.S. Supreme Court, reports had Sessions determined to block her. That changed, Madsen reports, when the Obama administration (in a rare show of toughness) let it be known it was prepared to drop "The G Bomb" on Sessions if he tried to obstruct. And what do you know? Sotomayor made it smoothly onto the Supreme Court.
Paying late-night visits to the home of your youthful protege
After Sessions was elected to the U.S. Senate, he strongly pushed for his youthful deputy, Bill Pryor, to be appointed as his successor. After Pryor spent a few years in that post, Sessions pushed for him to be nominated to the U.S. Eleventh Circuit Court of Appeals. When Vladimir Putin selected Donald Trump as president, Sessions pushed for Pryor to fill Antonin Scalia's seat on the U.S. Supreme Court. (The nod went to Neil Gorsuch of Colorado.) Is Sessions overwhelmed with admiration of Pryor's legal abilities? No, it appears he admires more than that about Pryor. We already know about nude photos of Pryor that appeared at the gay-porn Web site badpuppy.com in the 1990s. Perhaps Sessions knew of his former deputy's proclivities. After Alabama law-enforcement officials became aware of the badpuppy.com photos, they were concerned about possible blackmail of the new state AG. They conducted surveillance on Pryor's residence and caught Sessions making frequent late-night visits. Were they studying briefs? Maybe, but we doubt they were the legal kind. (See video embedded at the end of this post.)
Paving the way for the political prosecution of Don Siegelman
How poor is Jeff Sessions' judgment? Well, he supported Mark Fuller as a federal judge. That's a lifetime appointment, the kind that is damned near impossible to lose. But Fuller managed to lose it, following his arrest for beating his second wife in an Atlanta hotel room. Documents from his divorce case indicated Fuller had abused his first wife and their children, while also drinking heavily, engaging in extramarital affairs, and abusing prescription painkillers.
Evidence suggests Jeff Sessions would not know someone with integrity if the person landed on the AG's little tiny hands. Maybe that's because Sessions lacks integrity himself, as the whole world now is finding out.
The son of U.S. District Judge R. David Proctor is a newly hired staff member in the office of U.S. Senator Luther Strange (R-AL), Web research indicates. That supposedly is the reason Proctor recused himself from our pending "House Case." But the story hardly ends there.
Jake Proctor, a 2016 graduate of the University of Alabama, started working as a staffer in the United States Senate on January 3 of this year, according to his Facebook page. The post does not say he was employed with Luther Strange at that time -- in fact, Alabama Gov. Robert Bentley did not announce Strange's appointment to the Senate until Feb. 9 -- but Judge Proctor said his reason for recusing was that someone "related" to him had gone to work for Strange.
A number of questions remain unanswered about the circumstances behind Proctor's recusal, but this much seems clear:
* The unnamed relative was Jake Proctor, the judge's son;
* Something is fishy, or at least highly curious, about the dates related to Proctor's recusal and his son's employment in the Senate;
* Jake Proctor, according to his Facebook page, also has worked for former U.S. Senator and current Trump Attorney General Jeff Sessions. Judge Proctor wrote in the order recusing himself that his relative had worked for Sessions before joining Strange's staff.
That last item might be the most important of all, in light of Judge Proctor's serial conflicts in our case. It also gets interesting, timely, and of national scope when you consider this question: If young Mr. Proctor considers Jeff Sessions to be "a warrior for the conservative movement," how does that square with last night's Washington Post story about Sessions' meetings with a Russian envoy during the 2016 campaign? How does that square with evidence that Sessions lied to Congress about the meetings? Does young Mr. Proctor have any clue that his "conservative warrior" is a profoundly corrupt individual?
In a caption to a photo of himself with Jeff Sessions, Jake Proctor writes the following:
Jake Proctor
April 12, 2016
This morning I was reflecting on my time in DC last summer. It was such an honor to work for Senator Jeff Sessions. Being on the defense team, I was able to see first hand the dangers our country faces, but I was also able to see the great work that Senator Sessions and his staff do for the people of Alabama. He is truly a warrior for the conservative movement and works daily to make this country a better place.
Notice the date on the caption -- April 12, 2016 -- and its reference to the previous summer. The words indicate Jake Proctor worked for Jeff Sessions in summer 2015. That was long before we filed our complaint in "The House Case" on March 26, 2016. It means Jake Proctor had worked for Sessions well in advance of our filing -- and Judge Proctor had every reason to know that at least four defendants in our case were closely aligned with his son's boss.
Bottom line: The moment "The House Case" was filed, Judge Proctor knew he had a conflict that required his recusal. But he stayed on the case, even after we had filed one recusal motion that should have jogged his memory about any conflicts. Judge Proctor did not step down until after we had filed our second recusal motion in early February -- and he claimed it was due to Strange's recent staff hirings, even though the judge's conflicts date at least to his son's employment with Jeff Sessions in summer 2015.
Jake Proctor at Trump ball
(From Facebook)
What about the curious timing of Jake Proctor's employment? Consider this:
* Jake Proctor says he went to work as a Senate staffer on Jan. 3, 2017, but Luther Strange was not appointed to the Senate until more than one month later. Was Jake Proctor working for Sessions, even though the latter already had been nominated as Trump's attorney general, and then switched to Strange? Did someone know, well in advance, that Bentley was going to appoint Strange to fill Sessions' seat, and that made Jake Proctor comfortable about getting an early start on the job?
* Judge Proctor claimed in his recusal order that he dismissed "The House Case" before the issue of his son's employment with Strange came up. But if Jake Proctor was working in the Senate on Jan. 3, and his boss was Luther Strange, that isn't true. To be precise, Judge Proctor dismissed our case on Jan. 13, 10 days after his son went to work for somebody in the Senate. The latest version we can find of Sessions' Senate staff directory does not list Jake Proctor -- and one wonders why Sessions would make a new Senate hire when he knew he had been nominated as attorney general. All of that suggests Jake Proctor went to work for Luther Strange on Jan. 3 -- before Strange formally had been announced as Sessions' successor -- and Judge Proctor flat-out lied in a court order.
Either way, a disqualified judge decided our case -- and that isn't a matter of discretion for Proctor; a disqualified judge must step down, and he didn't do it.
While many questions remain about Judge Proctor's recusal, there is little doubt that he was disqualified from the outset of our case; it's only a matter of whether he admits it in his recusal order. The important thing is this: All of Proctor's orders in "The House Case," and in the related "Jail Case, must be vacated.
Proctor's name always tends to bring the word "deceit" to mind, so let's leave on this note: Why did the judge fail to reveal that the relative was his son, and his name is Jake Proctor? Was Judge Proctor wanting to give the impression that it was a distant relative, someone he barely knows? Was Judge Proctor trying to paint a picture that he's only mildly corrupt, rather than wildly corrupt?
We'll let readers decide that question for themselves. For me, it points to a judge who is dishonest to his core.
Judge Dave Proctor and wife, Teresa, with children Jake,
Shelly, Luke, and daughter-in-law Dana.
(From Facebook)
(Note at 11:05 CST: I've received several requests from readers for access to the documents that were supposed to be embedded at the end of this post. I'm getting used to a new document-sharing system, and I failed to make the documents "public." Because of that, they appeared to me, but did not appear for everyone else. I think I now have fixed the problem, and I apologize for the confusion and inconvenience. If you have problems seeing the two embedded documents, please let me know via email at rshuler3156@gmail.com. I hope the problem is fixed, but it's hard for me to tell in this new system.)
In a stunning turn of events, the federal judge who repeatedly made unlawful rulings in our "House Case," has stepped down in the matter. In an event that was not stunning, the judge was utterly dishonest in stating his reasons for stepping down -- and his absence, so far, has done nothing to promote the cause of justice. That's because the judge who replaced him already has proven to be as bad, if not worse.
Judge R. David Proctor stepped down in an order, dated February 23, that might be the most duplicitous piece of legal "reasoning" I've encountered -- and that is saying something. My wife, Carol, and I had moved for Proctor's recusal on February 9, based mainly on his crooked ties to former U.S. Senator and current Trump Attorney General Jeff Sessions. (Our motion to recuse and Proctor's order in response to it are embedded at the end of this post.)
Proctor and his firm at the time (Lehr Middlebrooks Price and Proctor) made it a practice to use dubious tactics to get Clemon removed from cases. That strongly suggests Proctor is a racist, too, and that issue becomes particularly powerful when you read an Eleventh Circuit opinion in a case styled In re: BellSouth Corporation, 334, F. 3d 941 (11th Cir., 2003). We will take a close look at that case in upcoming posts, but suffice to say it makes Proctor and his former firm look like courtroom crooks.
His most recent order in "The House Case" makes it appear Proctor hasn't changed much. Why do Proctor's ties to Sessions matter in our case, and why did we cite them in our Motion to Recuse? Well, at least four defendants in the case -- Jessica Medeiros Garrison, Rob Riley, Cliff Sims, and Yellowhammer News -- have documented and strong affiliations with Sessions. Given that Proctor almost certainly owes his federal appointment during the George W. Bush years to Sessions, you can see where a glaring conflict of interest enters the picture.
With all of his unlawful rulings in "The House Case," is Proctor trying to protect Sessions' cronies? It's hard to imagine a rational person not asking that question. But R. David Proctor, supposedly a "devout Christian" from Briarwood Presbyterian Church (PCA), does not want to go there. In fact, he twists himself into a pretzel trying to make it appear he hasn't been cheating us all along.
Try not to laugh when you read the following: Proctor claims in his order that he is denying our Motion to Recuse, but he must recuse anyway. Then, he admits he's had a conflict since the beginning of our case, but claims it only surfaced recently. (I warned you: This guy deals in heavy-duty cow feces, the kind that emits dreadful odors in barnyards across the country.)
You can almost feel Proctor's indignation and self-righteousness jumping off the page of his order. And he starts by taking shots at us, something he's done since the earliest days of the case by referring to us as "frequent filers":
Before the court is a motion to recuse the undersigned, and every other judge in this district, from further participation in this case. . . . Similar to their pleadings in this case, Plaintiffs’ motion makes wild, implausible allegations that resemble Six Degrees of Kevin Bacon in their effort to connect the alleged plotters in a bizarre, fantastic conspiracy. (Note: Proctor fails to mention the reason all judges in the district, and in the Eleventh Circuit, should recuse. Circuit Judge Bill Pryor, with his duty station at the Hugo Black Courthouse, is essentially Proctor's boss/overlord -- and Pryor is a defendant in our "Jail Case," which is loosely related to our "House Case.")
Pulling the old Kevin Bacon bit out of his white, doughy ass? Boy, that takes some creativity on Proctor's part. Then, get this: After denying our Motion to Recuse, Proctor admits our allegations of his conflict are not so "wild" and "implausible" after all. In fact, they are true:
Nevertheless, for reasons wholly unrelated to the “arguments” made in the motion, the undersigned hereby RECUSES himself from further participation in this case. On February 10, 2017, approximately four weeks after the court’s dismissal order was entered, Luther Strange, a party-defendant in this action before its dismissal, was sworn in as Alabama’s newest United States Senator. One of Senator Strange’s initial hires is a young staffer who worked on Senator Jeff Sessions’ staff (until then Senator Sessions’ appointment as the 84th Attorney General of the United States) and who is related to the undersigned. Based upon these events, which occurred after the court’s dismissal of this action, it is appropriate for the undersigned to RECUSE.
Talk about "wild," "implausible," and "fantastic"! Let's break down what Proctor is saying here:
(1) He denies our Motion to Recuse, but twice states (in BIG LETTERS) that he "recuses" himself. It, however, has nothing to do with our motion. Ummm . . . Hmmm. (You get a lifetime appointment with this kind of "thinking," folks.)
(2) He claims the conflict arose a couple of weeks ago when Luther Strange became U.S. senator and started hiring staffers. But he admits the young staffer in question, now a Strange employee, had worked for Sessions for quite some time. This tells us: (a) That the Sessions-related conflicts outlined in our Motion to Recuse are, in fact, on target; and (b) The conflicts date to the beginning of our case, showing that (in Proctor's own words) every one of his rulings is tainted and should, by law, be vacated.
(3) Notice that Proctor refuses to note the multiple defendants in our case who are closely tied to Sessions -- and there is zero doubt Proctor knows this, given his own documented ties to Sessions. But he tries to make the issue about Luther Strange and one of the senator's new employees. Does anyone else find it nauseating to be exposed to such blatant con artistry? R. David Proctor is nothing more than "a worm with a robe."
(4) Isn't it curious that the young Strange employee, who used to work for Sessions, doesn't have a name -- and his relation to Proctor is not spelled out? Why is that?
(5) Proctor wants us to believe his conflict had nothing to do with dismissal of our case. But he admits his relative's ties to Sessions go back awhile. That means Proctor has been conflicted out the wazoo from the beginning of our case, but he is too big a worm to admit it.
A reasonable person might think, "Well, with Proctor off the case, Mr. and Mrs. Schnauzer now should get a fair shake." Such a person would be hopelessly unfamiliar with the reality of our broken court system. After Proctor stepped down, the case landed with U.S. District Judge Virginia Emerson Hopkins, another George W. Bush appointee.
It took Hopkins exactly four days to prove she is just as corrupt as Proctor. Four days! She must have taken review of the case seriously, right?
Your tax dollars are supporting this kind of skulduggery -- and Hopkins, like Proctor, does not even try to hide what she's doing.
