On Monday’s episode of CAFE Insider, Preet Bharara and Anne Milgram will swap stories and break down the week’s politically charged legal issues. Thank you to all for supporting our work!
August 9th, 2019
No sign of the news cycle slowing down, and we’re on top of it. Let’s dive in!
Domestic terrorism threats
In the span of a week, three mass shootings left 34 people dead and dozens injured in Gilroy, California; El Paso, Texas; and Dayton, Ohio. The Gilroy and El Paso shootings are being investigated as possible cases of domestic terrorism. To address the alarming spike in attacks from white supremacists and nationalists, terrorism experts argue that the U.S. needs to adopt the same type of aggressive and expansive approach used to combat international extremism, which is unlikely given the Trump administration’s reluctance to acknowledge this growing threat.
At a news conference on Tuesday, the special agent in charge of the FBI’s San Francisco office, John F. Bennett, announced that that the now-deceased Gilroy shooter had a “fractured ideology” and had been exploring several “competing” violent ideologies. The FBI’s announcement came two days after its office in El Paso opened a domestic terrorism investigation into the arrested gunman who killed 22 people at a Walmart. On Sunday, U.S. Attorney for the Western District of Texas John Bash said that the El Paso shooting was “designed to intimidate a civilian population.” A special agent in the FBI’s Cincinnati, Ohio field office told reporters on Tuesday afternoon that the agency “uncovered evidence that the [Dayton] shooter was exploring violent ideologies,” but that no evidence had been found to suggest a racial motivation for the shooting.
Although the Gilroy and El Paso shootings are being designated as domestic terrorism cases, the surviving El Paso gunman will not be charged as a “domestic terrorist.” A federal statute, 18 U.S.C. § 2331, defines “domestic terrorism,” but the label carries no penalties and defendants so designated are usually charged under gun, hate crime, and conspiracy laws.
As part of the USA Patriot Act, federal officials have broad powers to uncover and thwart foreign terrorist plots through wiretapping or using an undercover online persona to anonymously chat with suspected jijadis. However, federal officials tackling domestic terrorism cannot seek to imprison people who “provide material support” to white-supremacist groups, and must instead wait to see if the suspects themselves develop plans to carry out attacks. The government has historically refused to designate the Ku Klux Klan or neo-Nazi groups as “domestic terrorism organizations” because of First Amendment concerns about targeting unpopular beliefs.
However, the onslaught of mass shootings has heightened calls for action, with Brian O’Hare, the president of the FBI Agents Association, urging Congress on Tuesday to make domestic terrorism a federal crime to “ensure that FBI agents and prosecutors have the best tools to fight domestic terrorism.” Mary McCord, a former senior Justice Department national security official, argues that because “there are no good terrorists, domestic or international,” we must enact a domestic terrorism law that “signals to Americans that the threat of extremism is just as significant when it is based on domestic political, economic, religious or social ideologies as it is when based on Islamist extremist ideologies.”
The major obstacle to change appears to be the Trump administration’s failure to recognize domestic terrorism as a significant threat to the American people. CNN reports that the White House has rebuffed efforts by the Department of Homeland Security to make combating domestic terror threats, such as those from white supremacists, a greater priority. The White House’s 2018 National Counterterrorism Strategy report downplays the domestic terrorism threat, which stands in stark contrast to FBI Director Christopher Wray’s July 2019 testimony that there have been almost as many domestic terror arrests in the first three quarters of the fiscal year as there have been arrests connected to international terror. A senior administration official reportedly defended the report’s portrayal of domestic terrorism, pointing out that the Trump administration’s National Strategy for Counterterrorism “was the first to ever include domestic terrorism.”
Challenging California’s tax returns law
On Tuesday, President Trump and his campaign filed a federal lawsuit in Sacramento challenging California’s recently passed Presidential Tax Transparency and Accountability Act, which requires presidential candidates to release the last 5 years of their tax returns in order to appear on the State’s 2020 primary ballot. Trump’s team is arguing that the law goes beyond what the Constitution requires in order to qualify as a presidential candidate; that it violates the First Amendment because it’s an effort to retaliate against his political associations and speech; and that it exceeds what federal law requires presidential candidates to disclose in terms of their finances. In a separate lawsuit also filed in Sacramento, the Republican National Committee (RNC) raised similar arguments, and also accused California of infringing on the rights of Republican voters to express their political preferences in the primary election. Both the Trump and RNC suits ask the court to block California’s Secretary of State Alex Padilla and state officials from enforcing the law.
Meanwhile, the California Republican Party filed an emergency petition on Tuesday in the State’s Supreme Court alleging that the law violates a 1972 state constitutional amendment that requires the Secretary of State to place the names of all presidential candidates on the ballot. The petition requests that the court accept the case even though the lower state courts have yet to review it.
California Governor Gavin Newsom, who signed the new law on July 30, tweeted on Tuesday: “There’s an easy fix Mr. President — release your tax returns as you promised during the campaign and follow the precedent of every president since 1973.” Because the courts have not previously weighed in on the issue, some speculate that the case could reach the U.S. Supreme Court. Newsom’s Democratic predecessor, Jerry Brown, vetoed similar legislation in 2017 over concerns that the law could set a “slippery slope” precedent for other demands on candidates, like health records. Although Newsom released six years of tax returns during the 2018 election, Brown declined to release his while running for governor.
- President Trump told reporters aboard Air Force One on Wednesday that he is “very strongly” considering commuting the sentence of former Illinois Governor Rod Blagojevich, who is serving a 14-year prison sentence for his conviction for various acts of corruption, including his attempt to “sell” the U.S. Senate seat vacated by Barack Obama after he was elected President in 2008. According to The New York Times, Jared Kushner suggested that Blagojevich be pardoned because “it would appeal to Democrats,” but other aides have warned Trump that such a move would be “politically unwise given the nature of Mr. Blagojevich’s conviction.”
- Former FBI agent Peter Strzok filed a lawsuit on Tuesday alleging that he was wrongly fired from the Bureau for expressing his political opinions in private text messages and was not afforded due process to challenge his termination. Strzok accuses the FBI of caving to “unrelenting pressure from President Trump and his political allies in Congress and the media.” Strzok seeks to get his job back at the FBI and receive back pay “for these flagrant violations of the plaintiff’s rights under the Constitution,” the lawsuit states. On Thursday, former FBI Deputy Director Andrew McCabe also filed a lawsuit against the Bureau and the Justice Department for his abrupt firing last year, alleging that he was ousted “for his refusal to pledge allegiance” to Trump.
- The House Judiciary Committee filed a lawsuit on Wednesday asking the District Court for the District of Columbia to compel former White House Counsel Don McGahn’s testimony, arguing that the Committee needs to hear from him to determine whether it should consider filing articles of impeachment against Trump. In the complaint, the Committee states that: “The President’s claim that McGahn is entitled to ‘absolute immunity’ has no basis in law, and no court has ever accepted this type of blanket claim in response to a Congressional subpoena.” McGahn’s lawyer, William Burck, released a statement saying that “when faced with competing demands from co-equal branches of government, Don will follow his former client’s instruction, absent a contrary decision from the federal judiciary.”
- The Wall Street Journal reported on Thursday that major banks have provided the House Financial Services Committee and the House Intelligence Committee thousands of documents related to Russians as part of their joint investigation into potential foreign influence on Trump and his family. The Journal also reports that Deutsche Bank has provided the Office of New York Attorney subpoenaed documents related to the Trump Organization.
- Less than a week after the announcement that Trump intended to nominate John Ratcliffe for Director of National Intelligence, the Texas Republican congressman withdrew his name from consideration. Trump blamed Ratcliffe’s withdrawal on the “unfair” reporting by the “LameStream Media” that Ratcliffe was under-qualified for the role and may have lied about his prior experience.
- Sue Gordon, Deputy Director of National Intelligence, is leaving her role on August 15th. According to NBC News, Gordon made the decision to leave “after she learned she would be passed over as Director.” On Thursday night, Trump announced that he was naming Joseph Maguire, the current Director of the National Counterterrorism Center, as Acting Director of National Intelligence.
- Cesar Sayoc, the Floridian who sent 16 mail bombs to Democratic politicians and media figures last year, was sentenced to 20 years in prison on Monday. Although prosecutors requested that he receive life in prison, U.S. District Court Judge Jed Rakoff opted for a lesser sentence because he believed that Sayoc purposely made the bombs to be non-functional. Sayoc’s lawyers said that their client—who has cognitive limitations and severe learning disabilities—perceived President Trump as a “surrogate father” and that he believed that “prominent Democrats were actively working to hurt him, other Trump supporters, and the country as a whole.”
“Police Launch 8chan Probe in Philippines, Where Owner, Founder Live,” The Wall Street Journal, 8/8/2019
“I can no longer justify being a part of Trump’s ‘Complacent State.’ So I’m resigning,” The Washington Post, 8/8/2019
“Florida governor orders state criminal probe into Jeffrey Epstein case,” The Miami Herald, 8/7/2019
“Nadler & Johnson Request Justice Kavanaugh’s White House Records,” House Judiciary Committee Press Release, 8/6/2019
“New York Expands N.R.A. Inquiry to Group’s Board Members,” The New York Times, 8/6/2019
“Judge signals interest in removing Mueller report redactions,” Politico, 8/5/2019
“Rick Gates will finally be sentenced — but not before he testifies about Trump campaign in 2016,” CNN, 8/2/2019
“Judge: No evidence Roger Stone was indicted for political reasons,” Politico, 8/1/2019
“Watchdog tells Democrats he can’t probe White House security clearances until Trump asks,” NBC News, 7/31/2019
Adrienne Cobb & the CAFE team
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