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Tuesday, October 18, 2016

Baseball Bat As Unlawful Weapon: Overcharging As Coercion

A New Jersey woman was arrested after a seemingly routine traffic stop, and charged with the unlawful possession of ... a baseball bat.

This seems like an over eager officer trying to overload a file, and overcharge a young woman, by throwing every conceivable charge.

Whether the charges are ultimately prosecuted by a municipal prosecutor is a different story, and municipal (town) judges also can dismiss the charge. However, prosecutors have government power and government resources behind them and the average private citizen facing even a minor criminal charge (misdemeanor) can be wiped out by the cost of hiring a competent lawyer.

One would hope that the imbalance in fighting ability is not encouraging police officers to meet quotas by overloading charges in order to overwhelm a hapless defendant and coerce, through the imbalance in resources, a guilty plea to at least one charge, regardless of the merits of any charge or whether any charge is furthering the protection of the public or deterrence of actual crime.

Here, we have a case of a woman basically arrested for charges including the possession of a baseball bat. So what objects these days risk being considered weapons?

In a day of the pressure cooker bomb, many everyday objects are conceivably dangerous -- if used for purposes clearly not intended by their manufacturers, wholesalers or retail sellers. But our authorities are entrusted with great power. It seems more discretion -- and basic common sense -- is in order.

Otherwise, such cases will weaken the legitimacy of the authorities and weaken the overall sense of justice. That would not further law and order; in fact, such cases risk justifying the meme that the authorities are out of control, that many prosecutions are illegitimate ab initio and that many people in government are crooked, corrupt or bent on violating basic civil rights.

It all starts with the discretion to use government power. Most of the time a scalpel will do, not a chain saw.

Monday, October 10, 2016

The Rule of Law and Investigating Your Opponents

The rule of law is fundamental to our culture, and the bedrock of our society. It is the reason why people felt comfortable buying farmland and starting businesses. The rule of law gives people the sense of security, the comfort, that their property won't be seized by mobs or the government and that there is "legal redress" against such abuses.

The rule of law was -- perhaps inadvertently -- compromised and attacked by Republican Donald Trump in the Sunday night debate. The vow to investigate Democrat Hillary Clinton for various alleged misdeeds (crimes?) has a chilling undertone.

When Trump declared, "you'd be in jail!" he signaled that his "investigation" would already have the conclusion picked out. This just isn't how credible investigations are done. This isn't how justice is done, nor is it the way to get (or retain) the perception of legitimacy among the general population.

Our governments have awesome power. Whether it's the small stuff like a permit to install an appliance, a license to cut hair or a food inspection permit, governments can exercise quite a bit of control over our lives. When governments have the power to regulate, to investigate and then jail criminals, the power is obviously much greater. 

Our rule of law and economic system is based on the premise that our "system" is sound and fair. Our Constitution (see the 14th Amendment) calls for the "equal protection under the laws" as a bedrock principle.

Once our property, security and liberty become more dependent on the goodwill of men, we move from being a nation of laws and a nation where an economy can flourish, to a nation of men whose favor we must seek and receive in order to achieve, build and keep anything.

These sentiments must be of prime concern. 

Saturday, October 1, 2016

Social Media And First Amendment Rights

The more politically active users of social media websites tend to complain that those sites censor their views, postings and other communications and do so in violation of their rights.

I will tell you that is nonsense, but there's plenty you can do about it anyway.

First, stop blaming the sites. While they may have biases as a result of having to trust the judgment of their employees tasked with content monitoring, the facts remain that the sites are privately owned and have the right to police content. These are also sites for which almost every complainant pays nothing! I've yet to hear a credible account of censorship from anyone who is paying for ads or preferred placement. Isn't that interesting?

The phrase "First Amendment" gets thrown around a lot as well. The First Amendment prohibits government interference with free speech. Facebook, etc., is not the government. Private entities have their own rights of free expression. Notably, that right includes the right to police and control content. If private entities or citizens did not have the right, they would then be effectively obligated to allow and be associated with certain speech they found objectionable.

Remember this: there is a difference between the right to speak, and the "right" to compel someone else to hear you.

All Americans have a right to free speech. But none of us have a right to force others to be our audience, to clap when we want applause and to agree with whatever drivel we imagine to be wisdom.

If you don't like the content control policies of social media websites, join a different one. Take your business and eyeball metrics elsewhere. It's that simple.

Tuesday, September 20, 2016

Investigative work into Ahmad Khan Rahami

I do quite a bit of investigative work and there are similarities between investigative attorneys (of which I am one of the few), actual government investigators and the declining number of investigative journalists.

Here is the product of research done in the last 24 hours since the name of the New York bombing suspect was released.

Monday, September 19, 2016

Bridgegate Prosecutors Say Christie Knew Of GWB Lane Shutdown As It Happened

Perhaps lost in the breaking news about New York City (#ChelseaNYC) bomb suspect Ahmad Khan Rahami being apprehended in central New Jersey...

New Jersey Governor Chris Christie knew about the lane closures leading to the George Washington Bridge in September 2013 as they were occurring, according to federal prosecutors making their opening statements in the trial of two former Christie aides which began this morning. The source, according to prosecutors, will be David Wildstein, Christie's former appointee to the Port Authority.

Wildstein's charge is not a surprise, given his claims (through counsel) virtually since the scandal broke and once New Jersey legislative committees began investigating and holding hearings in late 2013. Those investigations likely begat the federal prosecutors' investigation which led to the indictments of Bill Baroni and Bridget Kelly (who are the ones on trial) and to Wildstein's guilty plea, entered in court on the same day as Baroni and Kelly were arraigned in May 2015.

If the prosecutors' statements are proven, it raises the question of whether the statements will confirm or debunk Christie's possible statements to federal investigators who reportedly interviewed him about two years ago. It raises the thorny issue of what Christie said in that meeting. It is possible Christie took the Fifth Amendment on some questions, and that this information was not released. (That theory might explain why Christie may not be called as a witness, but we have to wait for the trial to unfold further.)

Christie has not been charged, but he may be on the list of unindicted co-conspirators which was kept sealed by a federal appellate court (Third Circuit) last month. 

The legal reason for deeming someone to be a co-conspirator may have little (or nothing) to do with that person's actual culpability. It goes to a method for prosecutors to expand their ability to use statements which otherwise might be excluded as hearsay. There is an exception to the hearsay rule when the alleged speaker is a co-conspirator, unindicted or indicted.

There is one other question to be raised, and it is less a legal question than a judgment and temperament question. Should the allegations be confirmed, they will make Christie look extraordinarily vindictive and prone to the abuse of power. These qualities will likely impair his attractiveness to an appointed position in a Republican presidential administration. However, they should also raise questions as to his fitness to serve as the United States Attorney, the position he held from 2002 to 2008 (appointed by President George W. Bush).

Wednesday, September 14, 2016

Cyber bullying Conviction Reversed

A New Jersey appellate division last week reversed and vacated the felony conviction of a Rutgers University student in connection with cyber bullying alleged to have caused the suicide of another Rutgers student, Tyler Clementi.

I wrote about this travesty of justice several times over the past several years. The suicide itself is a tragedy. However, that tragedy did not justify the three acts of appallingly poor judgment which followed.

First, the Clementi family jumped on the victim bandwagon. Grief is understandable. Trying to ruin another's reputation to atone for one's guilt at fear of somehow missing the signals of a suicidal or self-harming mind is not acceptable.

Second, Middlesex County prosecutors used this case to demonstrate their virtue. This is an inappropriate use of prosecutorial resources and smacks of a political or social justice vendetta. The proper aim of prosecutors is to exercise the power of the state to deter and punish crime. Yet here, the crime was hardly discernible and indeed there is no ruled to be no crime. But even if there were a crime, prosecutors failed to exercise good judgment in blatantly overlooking the following core facts:

1. dorm mate Dharun Ravi recorded acts occurring within his own room,

2. The reasonable person understandably might have been upset or even revolted from an epidemological point of view, that being the reasonable point of view to anyone having to live in a shared space, and

3. In a shared space, the concept of privacy must adapt to the concept best described by the plural pronoun "our," not the singular pronoun "my."

This prosecution either ignored the concept of a shared space, or worse, it struck a chord for a preferential right for one student based upon his apparent sexual preference (demonstrated on only one occasion), and a disfavoring or subordination of the privacy and other rights of another student who, apparently, did not share the same preference.

It is hard to square this prosecution with a fundamental respect for equal rights under the law.

Finally, these same critiques must be laid at the feet of New Jersey legislators. They enacted a law but failed to consider (or counted on the liberal courts to uphold) the flawed constitutionality and legality of the statute. The legislative function when properly exercised, does not invite or encourage the abdication of its own judgment and "kick the can down the road" to the judiciary.

Here, it seems politics reigned supreme. Dharun Ravi spent some time in jail and got his reputation severely harmed, as he is collateral cannon fodder in this sordid social justice debate.

Sunday, September 4, 2016

Are Smart Contracts Unamerican?

One of the in-vogue new tech phrases of the last year or two has been "smart contract."

This generally refers to some computer code effecting a self-executing contract that is supposed to dispense with the need for lawyers or the risk of lawsuits.

In other words, this is a tech unicorn.

Outside the United States, and in the fantasy utopia land between the ears of too many Americans, lawsuits and lawyers are considered a uniquely American hindrance interfering with commerce.

Inside the United States, lawyers and lawsuits are considered a vital and necessary deterrent to bad behavior. Sure, bad actors exploit their use as well, but litigation and access to your day in court provides a useful protection to those who believe they've been robbed, swindled or bamboozled. Plus, it's peace of mind.

Outside the United States, it's really tough being the victim of a predatory business practice. That's why many foreign entrepreneurs come to the United States. And when they go to other countries, guess what? They pick countries which have American-style legal protections and recognize American-style property rights and due process.

The smart contract as envisioned commonly today does not recognize or properly account for these rights. Circumstances change and disputes can arise during the course of performance. A smart contract may not be the best tool in those situations.

In short, today's smart contracts are often fatally flawed. They exchange the prospective and feared contingency (for example, someone trying to welch on a deal) for an actual and quantifiable loss (such as an inflexibility in seeking redress for a dispute arising during performance).

In any other situation, exchanging a possible harm for a second harm much more likely to occur, is sheer madness. So it is here.

If you are comfortable restricting the rights of parties to seek a neutral hearing in court over what they think are legitimate disputes, then the current brand of autocratic, rights-restricting smart contracts are for you.

However, that goes against the grain of the entire trend of foreign capital and innovation moving into the United States. Intellectual capital is the most protected in the United States. So why would our smart contracts pattern themselves after the autocratic solutions of less-free, less-hospitable countries?

Smart contracts have great potential. However, your smart contract must meet several requirements to work for you. It has to be written in conjunction and consultation with seasoned American corporate lawyers. This means someone who understand how contracts are supposed to work, how contracts are enforced in the American legal system and how litigation works. It also means the ideal smart contract lawyer understands how business and commerce works. Business and economic realities are critical to making any deal work.

Unless you have this smart living lawyer involved fully in the process, your smart contract will be nothing more than a lot of brilliant and expensive code, which will be even more expensive to fix the problem it fails to prevent in the first place.

Thursday, August 18, 2016

America's White Collar Professionals: Stagnation Without Adaptation?

Middle class professionals have been getting hammered by multiple economic headwinds over the last two decades.

Some blame technology. This is misguided. The world always changes and technology reflects changes. The assumptions of the past must continually be updated, revisited, challenged and where appropriate, discarded. 

Lawyers are among those professionals, and as this is a legal-oriented blog, let's look at some of the basic trends affecting the legal profession from a consumer point of view. The first installment in a series follows, at the link below.

Wednesday, August 17, 2016

Rule of Law: How Immigrants Can Teach Us Why America Is Great

Lost in the consternation about the immigration debate -- which comes from all sides, it seems, with some saying there's too much, others too little and too restrictive -- is a core reason for the immigration.

When spending much time in immigrant-heavy or newcomer-heavy areas and speaking with first-generation people, I am quickly struck by an industriousness and earnestness to learn and adapt our culture and become immersed in our values.

Particularly striking amongst those stated values is a respect for our institutions, especially the rule of law. 

Many newcomers arrive from countries where authority is dreaded and where institutions are suspect. American institutions are considered the best in the world, for various reasons. Our legal system gets a surprising mention. 

Our legal system, while flawed (and it's flawed because it's comprised of people who have flaws), nonetheless is considered a big improvement over countries abroad. People who feel victimized have a confidence that they will have their day in court here, even if the outcome is not ultimately favorable. 

Chalk one up for due process.

Those victimized also believe that our legal system is at least supposed to be impartial, and that this extends beyond the lip service (or outright doublespeak) so commonly expected abroad. 

Chalk one up for fairness.

Finally, newcomers have a virtually unshakeable confidence that our legal system, from our laws which set forth property rights to our courts which adjudicate all sorts of disputes, protects assets, protects achievement, protects wealth. In too many other countries, institutions are considered to exist to expropriate and then redistribute wealth. Newcomers believe (as a virtual article of faith) that in the United States, one can get rewarded for hard work and then be pretty secure it won't be stolen through what in other countries passes for legal means, i.e., legal plunder by means of manipulation of an unjust legal system.

The confidence that one's home, one's factory or one's intellectual property not only won't be seized and looted, but that there's a system in place to guard against such harms, is a big attraction to the immigrant merchant class which comes to America not just to "have a job," but to create wealth. 

Native-born Americans should ask themselves: What other country has a legal system where you say, wow, I wish we had courts like theirs? Or, I wish we had their laws? 

Foreigners ask those questions and universally answer - America. 

It's why capital flows here, why rich foreigners buy American real estate, and why immigrants seek to come here to build businesses. They feel secure with the lack of civic unrest, overt political upheaval and unofficial government corruption. 

Americans seeking opportunities abroad hesitate most often because of their uncertainty over the local legal climate in their destination. Foreigners don't hesitate at all. They know America's legal system and respect for property rights is second to none. 

Monday, August 8, 2016

How Greenmail Is Used In The Political Arena

This article outlines a theory. It is only a theory. As such, however, it helps train the reader on how to analyze the various complex motives which may be at work in the public arena (lawsuits, business, etc.)

Thursday, July 28, 2016

A Lesson on Accountability

Just published on

Tuesday, July 19, 2016

Legal Advocacy: It's Your Campaign!

The word "campaign" has two common connotations, both somewhat negative.

One is the political type of campaign. If those 30-second ads have made you tempted to throw a brick at the tv screen, you know what I'm talking about. The second is a military campaign, one which conjures up images of a protracted, destructive march through the countryside. Think of the legendary (or infamous, depending on your perspective) campaign of Union General William Tecumseh Sherman, whose march exacted purposeful devastation through the Georgia countryside to the Atlantic Ocean in order to demoralize the South's civilian population and destroy as much of the Confederacy's economic strength (and by extension, its ability to sustain a long war).

But when you need an advocate, you are engaging in a campaign. Your lawyer is your advocate, your general.
There are similar processes in other fields. Salesmanship and marketing are, in essence, nothing but campaigns. So is government lobbying.

In the advocacy sense, a campaign is about communicating your position with the goal of persuading your audience.

The essentials of a campaign are its weapons. The better weapons you have, the better your chances. And if your weapons are being used by a skilled communicator, that's just as good as having the shiniest new toy.

The weapons in the advocacy campaign are basic facts, the situation (do you need help? Are you looking to buy a car?) and, sometimes, the law (because persuading you to do one thing may involve convincing you that doing something different might be illegal).

The best campaigners assess a situation and amass as much information as possible. Information is the best currency.

But deploying that information, that knowledge, is a skill set of its own. This is where the experienced negotiator and advocate can make a difference for you.

Thursday, July 7, 2016

Winning: Boost Your Odds With This One Trick

Any legal encounter has uncertainty, but there's one surefire way to increase your odds of fighting to a successful conclusion.

No matter what.

It's virtually free, too.

What is it?

Here's one clue. It helps you win the fact battle, the contest on the facts of the case or the negotiation.

It isn't enough to have the right facts. Even if the law, both statutes and court rulings confirming their meaning, is on your side.

You must be able to prove your facts. This almost always means you need documents or similar evidence, such as video or audio records or computer evidence (what is generally called electronic data).

The more information you have at the start, the less you will depend on discovery -- and the cooperation and honesty of the other side's lawyers -- to get the documents you need.

The biggest advantage is that you will know you have a strong case, well before the other side does. This can only help in negotiations. Some great court case victories are won this way, when you can spring favorable facts on your opponent and back them up with documents.

Your lawyer can help you go through your paperwork to pull out helpful or crucial information. But the real start is with yourself.

With the right discipline and organization, you may have a built in advantage in any legal situation.

Tuesday, July 5, 2016

Hillary's Server: Bad Judgment Is Not A Crime

The Federal Bureau of Investigation Director James Comey announced earlier today the agency will recommend no indictment of Hillary Clinton be sought in connection with the apparently major lapses in judgment in handling certain classified information and the technology hosting it.

This is the legally sound -- and politically conservative -- position.

The handling of sensitive information is a serious matter, in an understatement. If it isn't a serious matter, perhaps the government ought not to be handling it.

If you have been alarmed by the decades long march towards overcriminalization and overregulation along with the gradual erosion of the mens rea (criminal intent) requirement for criminal culpability, today's statements reflect a reaffirmation of several positive core values in the classic American jurisprudence as it pertains to criminal law. It is a victory for due process, for the liberty-protecting and government-power-restraining principle that one is presumed innocent until proven guilty in a court of law, and a victory for erring on the side of letting a guilty person go free over risking the liberty of the innocent. It is a victory for reason, over the passions of the street mob.

First, we see restraint in the use of government power. Haven't we seen far too many politically-driven or politically-suspect investigations and prosecutions in recent years? We should be thankful that we have a recognition of the value of restraint, whether you agree with the outcome and its political (for the moment) impacts. We should appreciate any time when the government acknowledges the ferocity of its fearsome prosecutorial powers and yet steps back -- and particularly when such power could rightfully be accused by a significant portion of the populace to either be politically driven or risking tipping the balance of a presidential election. (Note: It is useful to note that while the FBI and Justice Department work hand in hand and often effectively in tandem, the FBI's function is investigative and the Justice Department's function is prosecutorial, although one can be sure the FBI's recommendations carry great weight.)

Second, bad judgment is not a crime and neither is negligence. Director Comey criticized Clinton for being "extremely careless" but that is not a crime. The risks to the liberty of average Americans will be immense once we dispense with the criminal intent requirement. We don't prosecute people for mistakes -- not like Italy which started prosecuting geologists for failing to predict an earthquake in the last decade. That is a crucial point. Reasonable people can and do disagree on what is sound judgment, sound policy and so on.

We risk a great deal by rushing to criminalize policy differences and particularly when they are embodied by political opponents. This is most true, in a day when anti-intellectualism is on the march, when ignorance is celebrated and achievement often considered something that makes its holder suspect, when the Internet has emboldened the uninformed to delude themselves into believing and asserting that they are experts instead of fools.

Realize one point: these people, unaware of their foolishness, serve on juries!

But the prosecution of political enemies for subjective decisions should be the province of banana republics which pay lip service to sue process. Not of America.

Director Comey's remarks acknowledged bad judgment. And the judgment may even rise to egregious levels. You could even question whether such judgment warrants a candidate's disqualification (in the minds of voters), but that is a matter to be decided by voters and not by bureaucrats. Again, this is the federalist, restrained-government-power position.

The third and final point derives from the second. There are in some quarters the demand for a prosecution of Hillary based on who she is, what her role was. Again, this runs counter to the American legal tradition. We prosecute the act, not the man, nor the title.

When we start prosecuting people because of what they are, because they are business owners or elected officials and not really because of what they have allegedly done, we are again in despot territory where power exists to be abused and where men live at the mercy of the State.

Prosecuting Hillary because of her status, her achievements, is thusly wrong. Similarly, going after her in order to prove that "no one is above the law" also acts as a powerful and dangerous precedent, one which would surely embolden future reprisals and even more venal abuses of power.

Finally, the approaching election is and should be decided by the voters with as little government interference as possible. This again is the classic federalist position arising from the Bill of Rights and the enumerated powers of our Constitution, a document which stands for the limits of government power and the principle that the people must be protected from government overreach.

Yesterday we celebrated our independence. Lest we forget, the War for Independence began as the culmination of years if not decades of colonists' frustration with arbitrary and abusive government acts committed in the name of the Crown (the Kings of England).

So today's FBI decision should be hailed. Detractors may decry the perceived absolution of Hillary Clinton. But future Americans will be freer with this important Executive Branch decision affirming the value of the restraint of the State's prosecutorial power.

Sunday, June 19, 2016

Idiots and Smart Contracts

[Author's Note: The author is a co-inventor of two patent pending innovations currently before the United States Patent and Trademark Office for improvements to blockchain technology which would facilitate smart contract applications.]

One of the major blockchain distributed asset organizations was disrupted this weekend, causing a temporary 30-50% decline (in 36 hours!) in the value of certain related "cryptocurrencies." (Note that I avoid the use of the word "hack.")

The cause was -- we think, because it's not certain yet -- a flaw in the blockchain code underlying one of these supposedly shiny, bright new things. Now, codes fail, because their creators are imperfect. Nothing new there. It's also possible the code worked as designed, in which case the code itself was bad, not in operation but in planning, and then the "contract" within the code was flawed. If the latter explanation holds true, then the problem is the bad contract. Which brings me to my point.

The contract is the issue, because we have been hearing more and more in the financial press about this supposedly wonderful new innovation called a "smart contract." I've heard supposedly brilliant innovators talk about "smart contracts" for at least three years. These are the two words that make you sound really smart, or hip. Just like putting "dot com" behind any rubbish made you money 20 years ago.


Underlying all this is an anti-intellectual arrogance. It's the arrogance bred from a disdain for the law, the rule of law, and lawyers, and the idea that non-lawyers can do contracts much better than lawyers -- who've been doing this for decades -- can do and have been. Now, you see the result.

The tragic flaw in the DAO, the subject of the attack? It might be the uncorrected confidence of people who have never done, that they know better -- and are better -- than those who have.

If you want a smart contract, you need to start with a strong understanding of a contract, how it is constructed, how it works, and what you're actually trying to do.

Until then, you're just a dreamer with a laptop and lots of unearned confidence, but no record of achievement to match. Ignorance is no substitute for knowledge.

Some more reading on this.

Eric Dixon has been a New York lawyer since graduating from Yale Law School in 1994. He works with and is a shareholder in several blockchain startups and seed-stage ventures.

Saturday, June 4, 2016

When Should Unindicted Co-Conspirators Be Identified?

Do unindicted co-conspirators have a privacy right to keep their names secret from the public?

Do reputational or financial issues warrant this?

Does the unindicted co-conspirator's public employment (or other status) change the analysis? And should it? What about the Equal Protection Clause? Aren't we all equally subject to the law, and equally protected?

And what about the Sixth Amendment's Confrontation Clause? (More on that later.)

These and other issues are going to be involved in. or affected by the Third Circuit Court of Appeals' consideration Monday of a motion by a "John Doe" to keep his name secret.


Some other facts: first, John Doe is an unindicted co-conspirator as that term is used by the federal government. It means that prosecutors have labelled him as such.

Understandably, John Doe is upset over the characterization. And unless John Doe is indicted, and takes the case to a jury, John Doe will never get the chance to confront the government, its witnesses and its evidence to determine whether he has in fact committed a federal crime.

This means that John Doe could be impugned by the characterization AND have no way to "confront his accusers." John Doe is actually deprived of his Constitutional right, because he is not an "accused." He gets the right to confront, and clear his name, only if he is "accused," that is, charged with a crime.

For that, let's turn to the Sixth Amendment of the U.S. Constitution, which provides:
" . . . in all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him."
To be simple, this means that you need a prosecution to trigger the right. No prosecution, no right. So anything short of being charged, and it sort of means the government gets to go open season on your reputation. Particularly since John Doe is not specifically identified. The rationale may be that any government action short of charging someone is not sufficiently injurious enough to implicate Constitutional rights. (A fascinating sidebar that should be explored more by the federal appellate and even the Supreme Court.)

Except that...

Except that John Doe is listed in court documents in the ongoing criminal cases of two other people as being a potential witness. This means that if those other two cases go to trial, the public may find out who John Doe is -- and John Doe could be a witness and testify and be subject to cross examination. It also means the testimony might be John Doe's way to "exonerate" himself, but it might also be a danger by showing things he might wish had never occurred or he had never said. He might never be charged but the revelations might be very damaging to his reputation and career.

One can also see how the government can use these considerations to bargain for the cooperation of people whom it could charge, but would agree not to, in exchange for witness testimony.

There are Justice Department guidelines on the naming of unindicted co-conspirators. See the following, straight from the United States Attorneys' Manual (with my emphasis in bold text):
In the absence of some significant justification, federal prosecutors generally should not identify unindicted co-conspirators in conspiracy indictments. The practice of naming individuals as unindicted co-conspirators in an indictment charging a criminal conspiracy has been severely criticized in United States v. Briggs, 514 F.2d 794 (5th Cir. 1975). 
Ordinarily, there is no need to name a person as an unindicted co-conspirator in an indictment in order to fulfill any legitimate prosecutorial interest or duty. For purposes of indictment itself, it is sufficient, for example, to allege that the defendant conspired with "another person or persons known." In any indictment where an allegation that the defendant conspired with "another person or persons known" is insufficient, some other generic reference should be used, such as "Employee 1" or "Company 2". The use of non-generic descriptors, like a person's actual initials, is usually an unnecessarily-specific description and should not be used. 
If identification of the person is required, it can be supplied, upon request, in a bill of particulars. See USAM 9-27.760. With respect to the trial, the person's identity and status as a co-conspirator can be established, for evidentiary purposes, through the introduction of proof sufficient to invoke the co-conspirator hearsay exception without subjecting the person to the burden of a formal accusation by a grand jury. 
In the absence of some significant justification, federal prosecutors generally should not identify unindicted co-conspirators in conspiracy indictments. 

Perhaps the solution is to have the Department of Justice further revise its guidelines governing how its prosecutors refer to unindicted co-conspirators. One way is to standardize how they are identified so that their identities cannot be ascertained, not even by investigative lawyers like the author.

The above guideline is overtly critical of certain practices. (The same United States Attorney's Office in New Jersey handling the Bridgegate investigation and related criminal cases, when under the auspices of possible current co-conspirator Governor Chris Christie as U.S. Attorney, used to identify co-conspirators with initials and residence hometowns, for example.) Clearly, there are ways to identify the players. For instance, if an indictment referred to a certain white former basketball player with curly blonde hair, you'd be pretty certain we're talking about Larry Bird.

Sometimes the opaque "CC-1" is used (CC for co-conspirator). But other times an acronym or phrase is used, often in conjunction with additional narrative detail as to the person's job, title, age or residence (any of which might serve absolutely no purpose for the purposes of a charging document relating to someone else) and it allows for good educated guesses. The problem is that the descriptions can and do allow for the identification of uncharged persons, who never get a chance to clear their names. This is not only unfair to the unindicted co-conspirator, who may never be charged and thus may suffer permanent and irreparable harm (basically, this is the "John Doe" situation), but his very safety may be jeopardized.

And it is quite possible that this reputational damage is done, quite on purpose, whether to pressure the uncharged and unindicted into cooperation (an exchange of testimony for a promise not to reveal or damage the person's reputation). A cynic could argue that this is exactly the type of psychological coercion designed to induce an investigative target to "agree to cooperate," essentially to safeguard his own safety. But then again, anyone who testifies -- and in open court, it's all public -- loses any anonymity or secrecy hopes anyway.

This was the case years ago in a high profile public corruption case where the U.S. Attorney's Office wrote up a charging indictment that referred to an unindicted co-conspirator as "State Official 1." Everyone quickly figured out who the Governor was. And that Governor -- now out of public life -- was never charged.

And never able to exonerate himself either.  Indeed, the "cloud" still hovers over that ex-Governor (whom by now you've probably been able to identify).

Let's remember these important issues and the need for reasoned balancing of the considerations at stake here. Perhaps this is a judgment to eventually be made by Congress.

A good news source to follow this emerging saga is the Record of Hackensack, which will be updating this story over the next few days. A link to their current story is here:

Friday, May 13, 2016

Should Unindicted Co-Conspirators Be Identified?

Is it fair to publicly identify unindicted co-conspirators in a criminal investigation?

The attorney for one such person involved in the Bridgegate - George Washington Bridge lane closing federal investigation argues it is not fair, because such identification deprives the identified co-conspirator of due process and brands him (or her) as a potential criminal suspect (or felon).

There are several issues here.

First, can the unindicted co-conspirator be identified? It is one thing if the authorities use opaque descriptions like "CC-1." (The CC stands for co-conspirator.) It is quite another if the authorities use a pretty defined term like "Public Official 1," which term was used once to refer to a certain former state governor and which led in short order to press suspicions and a confirmation from said governor that, yes, he was the person referred to in the criminal information (the charging document issued when a defendant enters a guilty plea to avoid a formal indictment). There are actually formal guidelines for the identification of suspects who have not been charged and the authorities generally try (or at least the guidelines give the impression of the effort) to avoid impugning the reputation of uncharged individuals.

That's because of the second issue. If the identifiable unindicted co-conspirator is never charged but only suspected, his reputation may be seriously harmed.

Most critically, the third issue: The suspect, who is "outed" as a suspect, may never be charged. The good news is avoiding an indictment and surely the greater reputational damage (assuming the suspect is in fact innocent and ultimately exonerated or cleared by a judge or jury) of the indictment, perp walk and pre-trial drama. 

The bad news? 

The suspect co-conspirator never "gets his day in court" to answer, oppose and refute the suspicions. 

The suspect never gets to see (or debunk) the purported evidence against him. 

The suspect never gets to confront his witnesses.

The result?

The suspect gets outed as a suspect, suffers the reputational harm (or at least the prospect of it), and is denied any opportunity at rehabilitating his reputation or establishing his actual innocence.

It's like calling the batter out on strikes, without even letting the batter get to the plate.

Is this fair? What do you think?

Thursday, May 12, 2016

Cults of Personality And Manipulation: The Foundation For Fraud

A main tactic of manipulators seeking to control others and exert their will is to remove the moral authority of their targets to object or resist. This tactic is employed because the most effective tactic, the use of brute force, is too often considered a felony.

The control strategy is deployed by thoroughly researching a target to discover flaws, weaknesses or facts the revelation of which would be likely to cause serious emotional, financial, reputational or even physical harm. The threatened harm would have to be serious enough to induce the target to respond to the threat with acquiescence instead of defiance. Once the target's will to resist has been compromised, the target can be controlled for an indefinite period of time.

A certain charismatic leader is presently deploying this strategy on classic American conservatives -- today. (Tomorrow it may be a different target.) He has fashioned himself as the white middle class Toxic Avenger, in so doing, making himself a veritable pariah in many circles. More significantly, he is making his followers equally toxic. Yet he does not care, because he can and will destroy the reputations of anyone associated with or supporting him. Worst of all, he can benefit, offloading the consequences of misguided loyalty, ignorance or naïveté upon his lessers. Once those hapless supporters discover the plot, their reputations may be ruined for good. Only then will the final part of the plan unfold. These victims of their own ambition will then be left without reputations and in some cases without friends or livelihoods. In their reduced state, they will grow ever more dependent on the Boardwalk Emperor who in turn can continue to exploit them and profit from the ever-declining cost to him of the favors he feels like providing.

This is how the Maximum Leader can become like the drug dealer who profits more and more from the deepening addiction of his customers. Power is reinforced. So is dependence, as the victims fall into a reputational quicksand.

Surely these nefarious strategies are practiced by many, in business, politics and civic life, and even in some families. Criminals use this manipulation to deceive and then to embarrass those who might reveal a fraud. Darker hues of the human behavior know no boundaries except for those set, and then reinforced, by those who resist. Is this the fate which awaits those who embrace the charismatic leaders of cults of personality? You decide.

Tuesday, May 10, 2016

In Defense Of The Bomb: Rethinking Hiroshima

Western civilization apologists and others who simply hate "the West" love to insist on the United States apologizing and seeking redemption for using the atomic bomb to end World War II.

These criticisms are either ill-informed given the evidence that existed at the time, or willingly ignore the lack of a suitable alternative course of action.

The horrors of the atomic bomb, no matter its target, are manifest.

However, there were many other factors which played into President Harry Truman's decision to use this weapon of mass destruction.

As a historian of sorts whose college thesis nearly became a doctoral thesis (before law school interfered), I did the original research needed to offer this compelling competing viewpoint. Here are some inconvenient facts:

First: Japan remained in the war despite the surrender of its European theater allies of convenience, Italy and Nazi Germany, in April 1945.

Second: There was concern in both the European and Pacific theaters that the Soviet Union would try to permanently occupy any and all territories which its military controlled. Hence the race in Germany to reach Berlin. And thus the United States sought to proactively end the war with Japan instead of, say, bleeding them through a protracted air war and bombing the cities into utter ruin (which course of action might have produced even greater civilian casualties).

Third: The Japanese had earned a reputation for particular fierce and brutal fighting. The mentality which bred the kamikaze pilot was also expected to infuse its infantry. Indeed, such ferocity was encountered by American troops as they engaged in their successful, yet arduous, campaign of "island hopping" in the Pacific as they closed in on the mainland. There was no reason not to expect the same type of last ditch intense defense of the Japanese homeland if and when an invasion was launched. Furthermore, military intelligence reported that the Japanese had implemented a complex civil defense system. The result was the expectation that American soldiers would encounter hand to hand, street by street combat throughout Japan, and likely sustain significant casualties along with civilian casualties.

Fourth: Sustained air bombings of the mainland in 1945 did not induce surrender and supported the belief that an invasion would be needed to end the war. As explained above, an invasion was believed necessary but also was not preferred.

One must understand these factors in order to see how the decision to use the atomic bomb could be made for humanitarian purposes with a legitimate strategic objective of ending the war as quickly as possible, minimizing civilian and military casualties to both sides and maximizing the chance of preventing a Soviet invasion and later subjugation of the Japanese home islands.

Sunday, May 1, 2016

How Convention Delegates Can Be Conscientious Objectors To Trump

This is why people love to hate lawyers.
There is a conscientious objector "out clause" for Republican national convention delegates who get elected to those party positions this year.
This is how Donald Trump may not become the Republican nominee, no matter how many delegates he wins.
An example is from one of the remaining few states whose voters have not voted in a primary or caucus. Let's look at New Jersey.
The New Jersey Republican State Committee, basically run by acolytes or allies of that state's Governor, Chris Christie (who is the highest-ranking elected official anywhere to endorse Trump), adopted delegate selection rules last September. Those rules provide as follows:
First, look at Rule 6 which states: 
"All delegates and alternates to the Republican National Convention once a allocated and/or committed to a particular candidate by virtue of the June primary election shall be obligated and required to cast their vote for that candidate at the first vote to select the Republican Party's nominee for the office of President of the United States at the Republican National Convention."

But a rule is only as effective as its ability to be enforced, or the ability to punish noncompliance. Now read Rule 7.
 "Any delegate or alternate allocated and/or committed to a particular candidate by virtue of the results of the June primary election who fails or refuses to act in accordance with their allocation and/or commitment to that candidate as set forth herein shall be subject to censure by the New Jersey Republican State Committee and/or the County Republican Committees. Censure may include, among other things, being permanently barred from acting as a delegate or alternate to any future National Convention of the Republican Party."
The operation of these Rules allows for conscientious delegates-elect to exercise their judgment at the convention. This is, after all, how republics work. America is not a direct democracy, it never has been, and the Founding Fathers actually recognized the dangers of direct democracy. (A careful reading of The Federalist Papers is in order, if you wish.) While you can dial in the objections of opposing candidates, these rules are posted and explained so readers can understand that delegates who vote for Trump this summer, and hide behind the explanation that they were "required" to do so, are simply using an excuse to avoid criticism.  

Monday, March 28, 2016

What The Hell Is A Blockchain Smart Contract

The promise of blockchain technology's so-called smart contracts needs an evolutionary jump in order to become adaptable.

Adaptability will lead to commercial use, which will lead to revenue and sales growth for related applications.

But has anyone thought through the problem the smart contract is supposed to solve?

As a matter of fact, does anyone really know what the hell a smart contract actually is? What it does?

Or is this just a really-smart and cutesy term, useful for people who don't know what the hell they're talking about, to sound smart to people who are less knowledgeable about blockchain technology derivatives?

The classic smart contract is a self-executing code. Under that paradigm, the occurrence of specified events, based on a previously agreed protocol, leads to performance without a further decision or action being required.

This simple transaction has been around for years in the securities markets. We already have self executing contracts.

My point is that we have "smart contracts," which are not contracts. They're not necessarily smart, either.

We should take a step back and figure out the problem we are trying to solve. Even Prehistoric Man took this approach with the use of fire and the wheel. These discoveries only continued and evolved into use because of their usefulness. So what is the utility of a smart contract? What is the problem to be solved?
This is the issue most technologists in the blockchain industry seem to miss.

It seems blockchain technology, the distributed and immutable ledger, is very much a solution in search of a problem.

* Eric Dixon is a New York based corporate lawyer who works with some blockchain startups to solve questions pertaining to precisely this type of issue.

Sunday, March 13, 2016

Psychology: The Secret To Winning In Court, And In Politics

A common problem in litigation is the sense that the case has been pre-judged. That is, the sense that the decision has been made. It could be the decision on the verdict, or the motion, it really doesn't matter much. Having this sense means that one also believes that the facts no longer matter (you'll try to argue them anyway) or the law or legal precedents (other rulings) don't matter (ditto). The quandary for the advocate is how to crack this dilemma, to control the damage, to live to fight another day.

One way around this is to try to totally change the foundational paradigm of the case. An example might be to shift the argument radically. If a straightforward recitation of facts and the law is not apparently working, then you've got to strike at something deeper. That is, to go after the "core values" of the decisionmaker -- the judge or, in rare instances, the jury.

Identifying those core beliefs is difficult. A case in point is any political campaign, whose success ultimately depends on voter turnout. Forget what people say, what they tell pollsters. As the football coaching legend Bill Parcells said once, "You are what your record says you are." You win or you lose. Results matter. In fact, that is all that matters -- did you win?

Getting to politics. How does one determine a campaign's or candidate's real supporters?

There's a big gap between spoken beliefs and actual beliefs. The truest test of where someone stands, whether it's for a candidate or a particular political ideology, is NOT some sort of pop quiz where if you get eight out of ten "right," you're in a certain category. Forget ideology. It's psychology that matters.

And adversity often brings out the truth. I've long believed that certain human emotions are actually incompatible with truly sincere ideological beliefs. Want to see how progressive your buddies are? Watch how they react when they get passed over for a promotion by an equally or more-qualified minority group member? Want to see how conservative your friends are? See how they squirm with envy when you get that house, promotion, etc.

The core emotion of envy / jealousy reveals that ideology doesn't drive voting decisions. Psychology does. Human weaknesses do. And activism thrives, not on ideology, but on these psychological drivers.

If you're thinking that "ideology" or "party identification" is the driver in those decisions, you're confusing the symptom (the stated belief) with the real, underlying cause (the psychological belief or value system).

If you want to pull out that victory, in any field, you have to recognize the symptom first. But then you must go one step further. To avoid the false positive, the indicator that leads you to one conclusion which could be very wrong, you have to dig for the underlying belief.

Very simply, it becomes: Why does someone believe in something?

If you aren't diligent enough at doing the digging to get to the real answer, you run the real risk of being really, really wrong.

Eric Dixon is a New York-based investigative and corporate attorney.

Tuesday, March 8, 2016

Why Sponsors Are Really Dumping Maria Sharapova


Maria #Sharapova is not being dumped by sponsors because of a failed drug test. 

She's being dumped -- or "suspended" -- because sponsors aren't happy with the return on their investment so far, or are seeing that the value of her "brand" may suffer temporarily. They are taking advantage of this, but then again, every sponsorship deal is a risk on future performance based on past performance. The sponsors are using every contractual right they have to stop payment and reassess their relationship. And, they have every right to do so.

Any sponsor getting its "bang for the buck" would have no reason, none at all, to dump her.

Friday, March 4, 2016

Trump's Psychology Ponzi Scheme

The presidential candidacy of Donald J. Trump, and in particular, his very public statements and mannerisms, may be the latest and greatest example of a particular bullying strategy that is sometimes deployed by some "control freak" businessmen and politicians.

Something noticeable in a certain type of egotistical person is the use of the following tactic. The person will say increasingly controversial, even outrageous, things. Notably, this will be done in the presence of others. That is because the object of the statement is not the content of the statement or its outrageousness, its political incorrectness. The object of the statement is the fact that it is made among an audience, and the target of the statement, while nominally about persons or things voiced in the statement, is really the audience, that is, the people around the speaker.

That's because the strategy of the speaker is to make those people in the audience uncomfortable. The strategy is to make those people associated with the speaker. (In high society, among the well-bred, you'll note that certain offensive statements are met with silent retreats but almost never an outright denunciation. That's because of the belief in the principle, however fair or unfair, of "guilty by association.") The speaker exploits the desire of the audience to "kiss up to" him, the fawning adoration, and the susceptibility of people unable to generate light of their own, to bask in the reflected light of others.

It is often in this way that supporters, associates, colleagues, etc. end up becoming the new victims. They're so often the psychological marks of the speaker, and never ever figure out the ruse.

When those people have finally had "enough," the egotist will challenge their objection with charges that "you support me," or "you've given me money," or "you've been my customer," or even, "you said this was a great course and you signed something." (Sound familiar yet?) The challenge is really a threat to embarrass others, anyone who objects. And that threat is felt by its marks, even if it can rarely be articulated, never mind, tied in to an actual, objective fact. That difficulty helps the perpetrator continue, to overcome the objections and carry on his activities. In fact, the perpetrator sometimes is able to build on rejecting the objections, because his object is control, and he has no objection to control through fear. 

This might work for a while. But the psychological Ponzi scheme cannot be sustained. Watch the egotist carefully; you'll see he rarely has the same people around him for a long period of time (unless they're on his payroll, or another more nefarious explanation exists). 

Those of us who have uncovered these shady characters know the signs. It is a terrible shame when these people act this way. They often harm others, but they also waste their own potential, their ideas, their rhetoric, their inventions, all wasted in the employ of an addiction to psychological dysfunctions.

Are we seeing this unfold now? I've given you my theory. Time will tell -- and the longer the time horizon, the more evidence that can be collected to make that determination.

Eric Dixon is a New York based lawyer who has investigated fraud in various contexts over the years.

Friday, February 19, 2016

Apple's Encryption and Blockchain Solutions

Many readers already know that Apple Computer is resisting a federal court order to modify its software to allow an encryption bypass and indefinite password attempts, as requested by federal authorities investigating the San Bernardino terror attack in 2015.

There are bigger issues at work here. The last two decades have seen a trend -- under both Republican and Democratic administrations -- for an expansion of government authority over private enterprise.

Here, the issue boils down to an important objective, being used to justify the government requesting and a federal court ordering a private enterprise to change its product.

There are precedents, of course, when safety or health are involved. But here, the request is to help the government do its job.

Here is the troubling implication: The government is declaring and imposing a duty on a private business, yet not compensating the business for its burden.

This is a form of conscription, a form of the expropriation of private property, on the basis of an asserted (and yes, an important) government objective, by the government.

This is the same premise behind eminent domain, the taking of the private for the asserted good of the public.

This is no different, really, from the troubling trend of government agencies coming down on business managers and imposing all sorts of duties and obligations to root out wrongdoing -- but critically, without compensating, protecting or giving the targets of this imposed burden any resources with which to undertake this imposed task.

The unfairness is illustrated by the fact that the targets (Apple today, corporate managers in the last decade) become unpaid and unindemnified deputies of the government, charged with extra responsibilities (and liabilities), yet ironically possessing NONE of the protections enjoyed by government workers.

This is a tax on business. This is a tax on the people who work in business. These impositions are burdens and punishments. And it makes you wonder whether there is another agenda at work here. Something beyond the cover of a top priority investigation. Is it a power grab, a desire to assert government control over private innovation? And could this even be a way to weaken the anti-hacking protections consumers enjoy, so that prying government eyes can access data without those pesky warrants and subpoenas?

The objections seem rooted in objectors' warranted lack of trust in human institutions, and particularly (but not exclusively) the government. This condition is actually avoided by, and is the basis for the appeal, of blockchain technology.

And blockchain, lest we forget, is based on a ledger of all activity and all data which is publicly-available, immutable and, perhaps most crucially, decentralized. That decentralization feature means the data is uniquely not susceptible to attack, deformation, corruption or inaccessibility.

Ordinarily the vast majority of people would cooperate with a government terror investigation. But this case is inadvertently becoming a cause célèbre for a protest of a terror investigation. Many tech industry players are warning -- not as loquaciously as they should -- that the government's measures pose a potential grand threat to information security and consumer protection. But I wonder whether this is a new attack in a stealth campaign, to nationalize private industry.

If the authorities were more interested at building trust, they might receive much more cooperation from tech innovators. But that trust requires a demonstration of action that would inspire confidence. Remember, this is the same federal government which elects to selectively enforce -- or not enforce at all -- existing federal immigration laws on the books for years, in the wake of the same terror threat which is invoked to justify government encroachment on rights in a different scenario. I sense the tech industry and other private enterprise players see these requests as an effort for the government to make itself a dominant partner and overseer. I believe that is the spectre which they feel, and fear.

Eric Dixon is a New York lawyer who works extensively with blockchain and cryptocurrency innovators and startups.

Sunday, February 14, 2016

Vacant Real Estate And The Value Of Location

The vacancy rate with residential real estate correlates in the inverse with property values, which are largely dependent on three factors: location, location and location.

Some New Jersey data shows that two of the counties with the lowest numbers of vacant residences are two of its most populous: Bergen and Hudson Counties. Those two counties, with direct access to New York City, stay in demand because of the location. Even if the commute is poor. That's because getting out of Manhattan is an ordeal for everyone, no matter which direction you travel.

The lesson? The next time someone proposes a bad policy like the New Jersey Residential Foreclosure Transformation Act -- whose 2012 incarnation (passed by the New Jersey Legislature but vetoed by Governor Chris Christie) would have allowed the state to buy vacant homes and turn them into homeless shelters and so on -- just remind them that there's no cure for a bad location or a property that "just won't sell." 

Bad properties are the result of speculation. An unwanted property is a verdict on the intrinsic value of the property.

In other areas, nothing stays vacant. That is also a verdict on the demand for the location of those properties.

But that's no reason to pass a law that will allow the government to turn your deadbeat neighbor's property into a drug rehab clinic in the name of "the common good."

And it also shows the danger of the uncontrolled use of eminent domain to seize private property (and typically the ones most vulnerable will be the poor owners in low-value areas), sometimes for the benefit of "the common good" but almost always with the incidental benefit of certain neighboring properties.

Saturday, February 13, 2016

When I Questioned Antonin Scalia One on One

In honor of the man, and the judge, after his passing earlier today...

I met then-newbie Associate Supreme Court Justice Antonin Scalia personally in 1989. I was a college student (Brooklyn College); Scalia's father had been a Brooklyn College professor in prior decades. And Scalia and I were both "Sons of Xavier," fellow graduates of the renowned Jesuit high school that is still on Manhattan's West 16th Street.

I got a few minutes to question Scalia about the Constitution, with the understanding -- and his permission -- that this would be on the record. I was on the college's primary newspaper, the Kingsman. 

(Side note: Three of my colleagues back then have gone on to illustrious journalism careers -- Michael McAuliffe with Huffington Post, Rich Calder with the New York Post, and Glenn Thrush with Politico. We all have taken the long trip.)

My sharpest memory was not of constitutional theory. It was that Scalia was one hell of a chain smoker. The room was full of a haze. It was truly a smoke-filled back room. There was so much smoke, you'd think the College of Cardinals had just elected a new Pope. 

I do remember that Scalia kept talking about strict interpretation of the Constitution. He felt it was important for the judiciary to respect its own boundaries, to interpret the Constitution but only restrain the legislature (or executive) when the Constitution was clearly overstepped. 

And finally, I can add that Scalia was genial, a younger man back then (52). Very few would have taken the time he did that day to talk to a then-newbie college journalist. He had class, and his ideological detractors never understood that. 

Eric Dixon is a New York-based lawyer, strategic consultant and blockchain technology application (FinTech) developer. He can be reached at

Rhetoric, Politics and Successful Advocacy: Targeting Your Audience

The most successful communicators are able to say one thing, and have it deliver multiple meanings.

Just like one billiards shot can sink multiple balls.

Political campaigns get the attention that most courtroom deliveries and negotiations almost never get (until after the fact, perhaps). There are a lot of canned deliveries, repeated statements -- it's all quite boring, frankly, unless you have a strong personal interest for (or against) a certain candidate. Many observers and "people involved in politics" get emotionally twisted up obsessing over how this or that candidate could make this outrageous statement, insult or obscenity.

This is all missing the point.

The point of those utterances is to play to a specific audience.

And almost always, that audience . . . Is. Not. You.

A message targeted to a certain audience is no different than an advertisement, or a closing argument inside a largely-vacant courtroom. It is designed to hit certain emotional notes, in order to produce a desired response: Buy this product, vote for me, etc. 

The candidate may not necessarily support, agree with or believe what he or she is saying, but "political realities" may compel a particular appeal, e.g., "I will go after the banks." (Note: I am speaking specifically about the Democratic Party, whose incumbent officeholders are increasingly changing their rhetoric in order to placate an increasingly rabid activist core and hopefully avoid primary challenges. I have been told this first hand. The political upheaval of our time is very much inside the Democratic Party, not the Republican Party.) This is the same calculation made by the advocate, the lawyer who may have to make an argument he finds personally distasteful, in order to represent a client. The difference is that the politician is viewed as personally benefiting from being elected, so the appeal is considered less honest.

So if you get upset at something you watch, read, or hear, I suggest just taking a few steps back, a deep breath or two, and trying to take this all a little less seriously.

Saturday, February 6, 2016

Open Primaries Are An Attack On Voting Rights

The New Hampshire presidential primaries are days away. New Hampshire has what is called an open primary. That means anyone can vote in the primary regardless of their pre-existing party affiliation, which then changes upon their voting. You could call this "instant affiliation." I suggest you call it by its real name: Instant vote dilution.

In many states, voting in a party primary is restricted to people who have chosen their party in advance, sometimes well in advance. But in New Hampshire, the laws are incredibly permissive.

  • You can register to vote in New Hampshire and vote in the primary the same day.
  • You can "move" to New Hampshire, declare your "domicile," and vote -- all on Primary Day. 
  • You can declare your party affiliation -- on Primary Day.
  • After Primary Day, you can immediately un-affiliate by declaring you want to leave the party, just by filling out a form.
New Hampshire's laws punish bonafide party members and dilute their votes. In effect, they diminish the value of the affiliation. A long-time party member's vote counts no more than the vote of the individual who may "just have moved" from any of the neighboring states, or decided to vote in the party which he opposes, in order (as the theory goes) to have the opposed party choose the weaker general-election candidate.

This very danger was recognized by the United States Supreme Court in its excellent 1970 decision in Rosario v. Rockefeller. That decision explained the practice of "party raiding" and the value of deterring such raiding by making voters choose their political party well in advance of the primary election. (That case, in which the defendant was the legendary New York Governor Nelson Rockefeller, upheld New York State's 11-month deferred enrollment practice.) 

New York, and many other states, have a "closed primary" that restricts primary voting to party members makes party affiliation meaningful. The closed primary protects the First Amendment right of association of voters. The Rosario case recognized and upheld the concept that the idea of a party primary is to have the members of that party choose its nominee. It is the basis for party affiliation and the prime reason to be in a political party (for legal, voter registration purposes). 

Closed primary election laws act like anti-virus software. They allow bonafide and committed members to associate but to keep out hostile attackers. 

The open primary, conversely, attacks the right of association. It allows hostile attackers to dilute and affect the outcome. Open laws like those in New Hampshire, and Missisippi to name another state, invite mischief and effectively denigrate party affiliation. Nothing diminishes the value of party affiliation than to allow outsiders -- non-bonafide members with no allegiance to the "party" -- to participate in and distort the outcome of its primaries. 

The open primary also arguably violates the Fourteenth Amendment's Equal Protection Clause. That's because it subordinates the First Amendment associational right of "long time" party members to the hostile attackers' right to invade. If you're thinking that closed primary or durational-registration requirements (e.g., register in the party by some deadline well in advance of the primary) are unconstitutional on a similar ground that they "keep out" others who "have a right" to participate in whatever primary they choose, the answer is that they merely erect an even deadline, applicable to all voters, in advance of the primary. A conditional requirement like a deadline is thus not a barrier, but the result of a legal presumption of legitimacy of a voter who switches or declares parties sufficiently well in advance of the primary.

In other words, party affiliation (also called "party enrollment") deadlines do not prevent party raiding or electoral mischief. They just place a premium on attackers having the foresight to organize weeks or months in advance of the targeted primary.

What do you think about open primaries? Do you think an open primary defeats the purpose of selecting a political party?

Eric Dixon is a New York lawyer.