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Saturday, May 29, 2010

Ron Paul On Who Is An American?

One of the things that makes America a unique country is the principle that citizenship belongs to all who are born within its borders, without regard to social standing or anything else. It is perhaps the ultimate sign of equality. All born here have our citizenship, without further requirement or class distinction.

The somewhat libertarian - and likely 2012 Republican presidential contender - Congressman Ron Paul (R-Texas) proposed today that children of illegal immigrants, even if born within our borders, would be denied automatic citizenship. This position would eviscerate the current Fourteenth Amendment providing that all who are born here are citizens.  In addition, this stance is fundamentally un-American and inherently unequal.  In fact, it is incredibly elitist.

Paul's stance, if implemented, would institutionalize a basic distinction, based on nothing more than the immutable characteristic of our parentage. Who becomes a citizen becomes a function of who our parents were. If our government treats us differently, based not on who we are and what we do, but on who our parents are -- a factor which we are totally powerless to control or atone for -- then our government will stand for a system where we can make some people suffer for the actions of others -- a fundamental injustice if there ever is one. It would make a class distinction and codify a caste system, just like the kingdoms of Western Europe had in the Middle Ages and colonial era, the countries where society and law recognized concepts of sharp inequality expressed in terms like "one's betters."

The American colonists, those who fled political and religious persecution and tyranny, consciously rejected such arbitrary and unequal distinctions. Ron Paul would return us to the rigid English class consciousness of the 18th Century, where your destiny was shaped by the holder of the uterus from which you emerged.

American society -- at least since the passage of the Civil Rights Act of 1964 -- has never been one to subjugate, segregate or discriminate against anyone on the sole basis of who their parents were or what their parents did.   Such an attitude was characteristic of less progressive, or totalitarian, societies.  This attitude is more characteristic of the feudal societies of the Middle Ages with their rigid class structures...the same societies that gave rise to snooty Victorian England and the decadent French of King Louis XIV and Marie Antoinette (whose uterus apparently passed muster to produce "real Frenchmen" until she met the cutting edge)...the same societies the early Americans (and the revolutionary French) rebelled against. 

Once we disconnect one's actions from one's destiny, and make another's actions responsible for your destiny, we tell people that their fates are preordained. This means that people will lose hope, but will also lose the sense of responsibility for their actions or the consequences therefrom.

Another troubling aspect:  Ron Paul's proposal would shift the burden of proof from the state to the person.   As a hypothetical situation, let's say someone -- born to a citizen mother -- is abandoned at a hospital or fire station (as we now encourage mothers to do so newborns don't end up in trash bins).   The critical question for the abandoned child is: How would we know if the child came out of a citizen uterus?   Do we presume that he had alien parentage?  And who will be qualified -- or appointed by law -- to make such determinations?  What regulatory scheme will arise to make such decisions? 

At least, under our legal tradition that, for the moment, gives considerable respect to the concept of due process, such a proposal would be likely to also spawn administrative procedures and substantial litigation.    (More lawyers will be employed, to be sure, to protect the rights of these babies.)

Paul's proposal is also ironic. Classic libertarians want to reduce the degree of government control over the private affairs of people. However, once citizenship is not automatic by birth, it becomes a decision of "citizenship panels," and will engender processes sure to be rife with corruption and exploitation. It would make our federal government extremely involved in our lives by giving it the power to determine, in its discretion surely to be abused, who is an American.
In short, I cannot fathom a position that is less "conservative," or "libertarian."

Ron Paul would increase government power and control over our lives.   Aside from the powers to compel your enlisting in the military, prosecute you or seize your assets, perhaps there would be no greater government power than that of being able to determine whether you would ever be able to be an American citizen.

Ron Paul's proposal, if enacted, would have the government have the power to say:  You can be born here, and do great things...but an American you shall never be.

Finally, Paul's position is a reaction (knee-jerk, reactionary and very ill-considered) to the federal government's abject and depravedly indifferent failure to secure our borders. However, his proposal would deny the most basic citizenship right to people born here, who have done nothing wrong (except be conceived inside the wrong mother) for nothing more than the failure of our government.

What we need is a federal government which does its most basic job of securing the border.  Alas, our leaders often feel that it is easier to infringe on rights -- here, to deny citizenship to people born here -- in order to ... well, to do what exactly?  To secure the border -- after the aliens are already here?  (Talk about shutting the barn door after the horse is well down the road.)

Ron Paul has, in this opinion, committed the greatest policy -- and political -- mistake of his career with this highly misguided proposal.

Eric Dixon is a New York lawyer and strategic analyst. He handles legislative and policy analysis in addition to advocating on civil rights and election law matters. He is available for comment at 917-696-2442 and through this site.

Friday, May 28, 2010

Having Money Is A New Jersey

In the old Soviet Union, it was a crime to possess American dollars.

Apparently, it is also a crime in the State of New Jersey.

Some New Jersey lawyers (including friend of a friend DH Barr whose office is in Clark, NJ) are challenging the constitutionality of a state money-laundering statute which allows for a fairly automatic inference that possessing a large amount of money -- in and of itself -- may be a predicate to a criminal money laundering charge.  See this report from the New Jersey Law Journal.

Lazio's First Loss

Breaking: Lazio gets 52 percent, barely getting a Wilson-Pakula authorization to even get on the ballot. He has one opponent who got more than 30 percent, meaning Lazio will face a primary for the Conservative line for Governor. Lazio does not have the endorsement...he does qualify for the ballot and faces a primary.

Eric Dixon is a New York election lawyer.  He can be reached at 917-696-2442.

Lazio's Magic Number: 75%

That's the percentage of the weighted delegate vote Rick Lazio needs to avoid a primary for governor on New York's Conservative Party.

Failing to get 75 percent against a Conservative Party member also running for governor means that Lazio would qualify for the primary ballot (because he'd have more than the 50 percent needed for the "Wilson-Pakula" authorization, which he needs as a non-Conservative Party member) but not have the nomination. In essence it would be a loss: he would face a Conservative primary and the risk of losing it to a virtual nobody.

My take: Lazio punts the nomination if he doesn't get 75 percent, in wich case the next domino is that the party hierarchy will try to pressure the "nobody" to decline the nomination. That would allow the party leaders to vote in mid-summer on a replacement, who would likely be the person then thought to be the frontrunner to win the Republican Party primary. The current Republican gubernatorial candidates: Steve Levy, Carl Paladino, possibly Myles Mermel, and the aforementioned Lazio.

All for the right to become a speed bump on Andrew Cuomo's victory lap.

Now you can understand the machinations...

Eric Dixon is a New York election lawyer. He can be reached at 917-696-2442 and through this website.

Plan B For Candidates

Candidates who get rejected at their party conventions have not a moment to lose in planning their petition drives. In New York, statewide candidates who do not gain their party's endorsement at its state convention or at least 25 percent of the party's delegate votes (which may be weighted differently according to each party's formula) HAVE NO ALTERNATIVE but to get petition signatures to get on the primary ballot.  (For major party candidates, that's 15,000 signatures; for minor parties, it's five percent of that party's enrollment -- a number which is lower than the 15,000 but still a high threshold, because the signatures must also be witnessed by a party member or a notary public.   Therefore, it's tough -- but not impossible.)

Without a petition, it's GAME OVER.

Once you read about a convention's outcome, you should also know that the planning for "Plan B" should already be underway.

Even during a holiday weekend.

Eric Dixon is a New York lawyer who specializes in election law and works independently of any political organization. He can be reached at 917-696-2442 and through this website.

Conservative Party Endangered

Live from New York City - Conservative Party convention:

The Conservative Party rank and file is afraid the party's very survival is at stake. Without a gubernatorial ticket that gets at least 50,000 votes in the general election, the party would cease to be a political party (as defined under the state election law) and lose its automatic ballot line...and, reportedly, also lose considerable patronage at all levels. So the stakes are high (even though the bar may be low). 

(Remember, the Liberal Party nominated someone in 2002 whom they thought would surely get 50,000 votes...their nominee dropped out of the Democratic Party primary days before the vote...then didn't campaign at all despite still being on the Liberal Party line...the candidate didn't get 50,000 votes and the Liberal Party ceased to be a recognized party under New York's election law...that candidate's name  was Andrew Cuomo.)

Consider the following dire distress call:

"I ask you to vote for the survival of the Conservative Party," intoned one speaker as he nominated a candidate for lieutenant governor.

Can't grab either Michael Long (de facto state chair but with different title) or brother-consigliere Tom Long for comments.

More to come from Crime, Politics and Policy.

Eric Dixon is an election lawyer in New York.   He does not work for any recognized political party and is an independent lawyer who can give candid advice without conflicts of interest or appearances of impropriety.   He may be reached at 917-696-2442.

Thursday, May 27, 2010

Stay Silent, Stay Free?

Brief note on today's Kenneth Starr ("Adviser to the Stars") and Andrew Stein indictments charging an alleged investment fraud (reportedly a Ponzi scheme?) on investor-victims reported to include Sylvester Stallone and Wesley Snipes.

Former perennial candidate (and loser) Andrew Stein is reported to have previously been talking with IRS investigators. Perhaps he thought he could say something, anything to convince the investigators that they were wrong.  That talking is reportedly the basis for his criminal charge.

Point: Don't try to "talk your way" out of trouble. Some people are so used to smooth-talking their way through life, or getting away with serial lies, that they have little clue and less regard for the consequences of getting exposed (caught) in their web of lies. There is a Fifth Amendment right to remain silent. Some suspects, if they only used that right, may be better off risking reputational damage rather than risking -- or inviting -- Title 18, Section 1001 false statements criminal liability.

Crazy as this may seem, but a foolish person, who decides to talk and who may be entirely innocent, risks criminal liability -- and may have a greater chance of being prosecuted and convicted -- than a cagey, malevolent criminal who knows darn well he is stone-cold guilty but who also knows that there are some situations where talking can do no good, no matter what is said or to whom it is said.   Some people have gotten so used to lying that they think there's something they can say, someone they can fool -- and they risk one day being proven wrong.

Eric Dixon is a lawyer in New York who consults on certain business defense cases, investigates cases involving potential civil, regulatory or criminal liability, and knowledgeable about corporate governance and the federal securities laws. 

Former Manhattan Boro Pres Charged with Fraud

Breaking: the feds are at 850 Third Avenue (midtown Manhattan) offices of Starr and Company, a financial advisory firm, and are charging the firm's leader Kenneth Starr (no not the former special prosecutor) and former Manhattan borough president Andrew Stein with criminal charges arising from alleged fraud.

UPDATE: IRS agents are in the building.

Wednesday, May 26, 2010

A Spoof: BP's Plan ZZZ To Stop The Gulf Oil Leak

More than five weeks after the Gulf offshore drilling explosion in which eleven people died, BP has yet to shut off the leak.

BP has proposed numerous solutions, all of which have failed miserably thus far.   Hence, this spoof.

Coming in 2012:  Plan ZZZ...

After two years of nonstop leakage, during which time the formerly fertile Gulf of Mexico has taken on the consistency of the La Brea tar pits and Florida has been overrun with hurricanes feasting on western Caribbean waters, intrepid oil company BP comes up with their most daring solution to date.   Calling it Plan ZZZ, they promise this will be the ironclad solution to the disaster.

Plan ZZZ involves constructing a huge tractor beam to pull several asteroids from the Kuiper Belt and send them crashing into the Gulf and onto the leak, thus plugging it.   Scientists warn, however, that the plan has severe collateral consequences including the dispersion of so much airborne debris as to threaten to plunge the Earth into years of darkness.   BP admits that there's a risk that an asteroid could collide with the Earth, but maintains that collateral damage is part of environmental remediation...

Tuesday, May 25, 2010

Lawyers: Enemies of the State! An Update

More silly legislative proposals in Washington.   This time we have a pending House bill that threatens to chill the efforts of lawyers for Guantanamo Bay detainees -- many of whom may prove to be entirely innocent of and unconnected to any terrorist or criminal enterprise whatsoever.   See this upcoming New York Times report for a fuller update on the issue.  

Notice the Florida representative who calls the John Adams Project a "treacherous enterprise."   There are some legislators, in Washington and in many state capitols, who view lawyers as some sort of seditious "fifth column" in wingtips.   Should these legislators gain influence, their ignorance of and disdain for constitutional rights and civil liberties will threaten us all. 

New Jersey: Becoming Greek?

Reports surface this afternoon that New Jersey Governor Chris Christie is saying that his state is "careening" towards becoming Greece. Last night it emerged that the state has a several hundred million dollar deficit in its current fiscal year which ends June 30, 2010 and may have to make about $300 million in additional cuts before then.

Apparently the word "Greece" is becoming a one-word synonym for fiscal disaster.

Anecdotal reports suggest that in state residents who work out of state (and hence pay their taxes out of state) are being audited or told to re-send long-ago-filed tax returns on the theory that there is "no record" of the filing or of certain documentation. This report - if correct - indicates that state government is passing along the cost of its disorganization or incompetence to its residents. This cost-shifting will encourage state residents already on the fence and thinking about relocating to take more steps in that direction.

Friday, May 21, 2010

New Jersey's Judges Can Declare Their Own Independence

New Jersey lawyers are very worried about judicial independence in the wake of New Jersey Governor Chris Christie's decision not to reappoint a sitting judge on the state's highest court to a second term, according to this Newark Star-Ledger report quoting the leadership of the New Jersey Bar Association. 
The worry boils down to one core concern:  that judges will feel pressured or intimidated into making rulings to please, placate or appease the Governor and out of fear that they will not be reappointed. 

The expression of this concern implicitly admits that the judges may allow their purely personal concerns -- their career prospects -- to influence their decisions. 

A judge who allows extraneous considerations, like financial considerations, would violate all sorts of judicial canons of ethics, if not various federal statutes such as the "honest services" statute which remains on the books.   Isn't it remarkable that the New Jersey Bar Association is complaining about the loss of judicial independence while implicitly arguing that the state judiciary can be easily intimidated and pressured?  

Whether one agrees or disagrees with Christie's decision not to reappoint Supreme Court Justice John Wallace (and we at Crime, Politics and Policy express no opinion), this much is certain:  This is the time for judges to distinguish themselves with their intellectual bravery and boldness. 

The independence of the judiciary can be reaffirmed right now, by the judiciary itself.   The judges have a brilliant opportunity to assert their independence, their intellect and their integrity, by making accurate, lawful and bold rulings adhering to our laws and the state and federal constitutions.   While doing this, the judges can also send a strong message -- that they will not allow political or personal considerations, pressures or enticements to ever interfere with or compromise their integrity.

Eric Dixon is an attorney admitted to practice in both New York and New Jersey.  

Wednesday, May 19, 2010

Petition Drive Warning

New Yorkers beware. You are about to be besieged by campaign workers carrying clipboards and asking you to sign a petition for various candidates.

Voters should be advised that they can sign a petition for only one candidate for each office, and only for candidates in the political party in which you are enrolled. (You may not be "enrolled," so check with your local board of elections.) If you sign for more than one, only the earlier signature counts.

Candidates need to get their operation together real soon. In my experience as an election lawyer for campaigns since the early 1990s, organized campaigns with volunteer support have a solid chance of getting on the ballot. Crucial to the effort is having lawyers, advisers and managers who understand legal compliance and the discipline to follow the laws and rules.

After the Democratic and Republican state party conventions in the next two weeks, we should see a parade of candidates who, having been denied an automatic spot on the primary ballot by the convention delegates, will need to collect petition signatures. Stay tuned.

(Eric Dixon has been an election lawyer, petition drive coordinator and campaign manager for over two dozen candidates since the 1990s. He is available for consultation and may be reached at 917-696-2442.)

Tuesday, May 18, 2010

Why Weakening Miranda Threatens Us All

The debate over the asserted need to weaken the scope of what now are known as "Miranda rights" in order to facilitate the war of -- er, on -- terror is continuing. This is worrisome for it indicates the effort to rollback these rights may be accelerating.

The basis behind the effort is simple: the belief that reading a suspect his rights is an impediment to effective interrogation in crises where an attack is considered imminent.

The reason why Crime, Politics and Policy finds this concept worrisome: This translates to allowing the government to suspend your rights, when the government decides that the government needs -- for its convenience -- to do so.

For those who think this means being less than sufficiently tough on crime, ponder the possibility of tomorrow's public servant who, for ease of convenience or to boost his productivity statistics, decides to classify an "ordinary" situation as "terror-related." In a world with Miranda Lite, the suspect becomes a terrorist. (You only need one person with a badge and an ax to grind.)  This will give us a country where people WILL lose their rights, and enjoy them only at the discretion of the state, so someone in authority can have an easier time of it.

People cut corners all the time. Cutting corners on Miranda will cut corners on our rights, no doubt about it.

Government Power Expands With Comstock Case

The Supreme Court issued a decision in the case of United States v. Comstock, relying on the "necessary and proper" clause of the Constitution (Art. I, Section 8, clause 18) to uphold a federal statute previously struck down by a district court (and upheld on appeal) which provided for the civil commitment of "dangerous" federal prisoners after their prison sentence had been served and when the state(s) which would have jurisdiction had not provided for the commitment of supervision of the prisoners.  The Supreme Court case really turns on the interpretation of that clause, and the decision (7-2 vote, Scalia and Thomas dissenting) may help expand the lawmaking power of Congress by widening the scope of what is considered a proper federal law.   The "states' rights" crowd should be as displeased with this decision as the fact that some of the "conservative" judges went along with it.
The underlying case involves the thorny issue of "thought crime" or one's predisposition, based on prior behavior or criminal acts, to repeat them -- what in legal jargon is called recidivism.   The practice of continuing one's confinement after they have served their sentence is troubling at a basic level, as it effectively imposes a discretionary, open-ended and possibly never-ending sentence upon some sex offenders.   While their prior crimes are undoubtedly severe, the inconsistent treatment we use for other unquestionably dangerous criminals -- like murderers -- who do their time and then go free without any confinement risk or psychological clearance as a precondition to release, calls into question the practice of post-sentence civil confinement -- indefinite detention by any other name.
The danger here is one of the risk of this expansion of federal power to unjustly confine (imprison) former prisoners who are deemed "dangerous."  I still boil this down to the essential element that we are being asked to trust the discretion, judgment and honesty of the federal officials who are making this assessment.   In other words, freedom is dependent on the character and benevolence of a government official -- in which case it really isn't freedom.   The power and ability (if not the inclination) of government officials to make incorrect judgments about former prisoners involves risks of error, confusion, honest mistake and outright malfeasance.   It should seem that our freedom should never be dependent on trusting others whose hands are on the levers of power.

Friday, May 14, 2010

Google Spying on Users? We Warned You Way Back When...

 Several months ago -- December 2009 to be exact -- we reported that Google executive Eric Schmidt had some troubling comments about users who were concerned about Google saving their searches.   Click here for our report.
Now it appears that Google has indeed been collecting data from unsuspecting WiFi users.   See this report posted tonight by the Wall Street Journal.
This illustrates that privacy is only as secure as the diligence, and ethics, of the people who have access to troves of information.   Your privacy is only as secure as the "weakest link" in the long, long information pipeline.  That is to say, it is not secure one bit.   No matter how much the corporations and government agencies doth protest.   Your privacy can be -- and in all likelihood has already been -- compromised, because there are simply too many careless, incompetent or malevolent people out there. 
As we have said before, you are the strongest defender of your own privacy.

Jersey's Bowl: The Toilet Bowl

The following phrase from the Bergen Record's Alfred Doblin ( in his column of May 14th should be the quote of the month, so far.

Regarding Governor Chris Christie and his refusal to tackle the inequity of teachers being fired and libraries cutting back services while Rutgers University football coach Greg Schiano has a multimillion dollar contract to get into a bowl game, Doblin writes:

"New Jersey doesn't need Schiano to get into a bowl. New Jersey is already in a bowl. It's called a toilet bowl."

Amen, Brother Alfred.

Sunday, May 9, 2010

Clueless Carla Katz: Taxpayers Are Serfs Who Can Go Eat Cake

Continuing a theme from yesterday:  Carla Katz's brain-dead remark about public employees having a constitutional right to have their job, benefits and raises by necessity argues that others have the constitutional obligation to pick up the tab.

To argue that some have the right to enjoy the fruits of the labor of others who are obliged to provide such labor, is to argue for feudalism.   Carla Katz is arguing that the public employees are the lords of the manor, and that everyone else is a serf.   

In this attorney's humble opinion, such ridiculousness serves the rank-and-file public employee very badly.   There are many public employees who are hardworking, conscientious and, to a degree, underpaid.   The teachers who are making $50,000 with a master's degree are an example.   These workers are being very, very badly represented by certain union leaders and their representatives.  

Obama's Attorney General Wants to Weaken Miranda

Sunday morning we learned that Attorney General Eric Holder wants to loosen some of the "Miranda" protections afforded criminal suspects in the case of suspected terrorists. He proposes that Congress pass a law with new procedures, of course as long as they pass Constitutional muster.

Again we are hearing of concerns that Miranda rights compromise the ability of law enforcement to interrogate and debrief suspected terrorists. But the concern here is not about the terrorists.  It is about the danger that losing these rights will present to everyone else. 

Weakening these rights puts at risk anyone who is deemed a suspect. Quite frankly, anyone with a "weapon" or showing a "nefarious" intent -- as judged by the government -- could be deemed an enemy combatant/terrorist. It is a slippery and steep slope we are approaching.  And if someone on your local police force just doesn't like you and decides to make trouble for you by calling you a "terrorist," you could be in for a long, nasty journey. 

Why do we care?   It is simple.   This proposed approach would make "terrorism" a magic word.  The danger to average citizens is evident once you stop assuming the benevolence of the government and start fearing what will happen once some bad people start calling all sorts of benign activities "terrorism" (things like disagreeing with politicians) and their political enemies "terrorists."    Americans, who have been taught that their government and police are the good guys, have trouble accepting this concept.   Foreigners, especially those raised under repressive regimes, need no introduction to the concept and recognize these dangers immediately.

George Washington University Law School professor Jonathan Turley is now saying that the Obama administration is taking positions as hostile to constitutional rights and civil liberties as the Bush Administration -- that is, under former Attorneys General John Ashcroft, Alberto Gonzales and Michael Mukasey.

The risk of such a move, of course, is that future malevolent leaders would be positioned to use these new procedures as precedent to engage in acts which infringe upon the rights of the innocent. Any law, rule or regulation which depends on the benevolence of its enforcers should be viewed as presumptively flawed and potentially dangerous.   In fact, there can be few more pernicious forms of control that to be dependent upon the benevolence of another.

Saturday, May 8, 2010

Clueless Lawyer Warning: Union Lawyer Carla Katz, Esq.

The Sunday Star-Ledger reports that New Jersey Governor Chris Christie is ready to propose another, stricter round of reforms on public workers.
Love him or loathe him, Christie has successfully framed the debate. "People in New Jersey now feel as if there have become two classes of people in New Jersey: Public employees who receive rich benefits, and those who pay for them," Christie said in a recent speech to mayors.
The response from union advocates has been predictable.   After all, they represent their constituency well.   However, one prominent union leader, a recent law graduate named Carla Katz, came up with an absolutely clueless retort that is an embarassment, even among the members of the New Jersey Bar.   (Yes, that same Ms. Katz who was on the arm of former Governor Jon Corzine; the same Ms. Katz who negotiated a union contract with the Governor while dating him.   Don't blame Carla, she did her job very well.)
Here is Carla Katz's brain-dead, over-the-top quote:
 "It looks like an illegal attack on the constitutional rights of public employees disguised as reform." 
Earth to Carla -- there is no "right" to work for the government, and it surely isn't a constitutional right.  Even in New Jersey. If I were the dean of Seton Hall Law School --  which I'm sure is a fine institution and certainly the third-best law school in the state -- I would order Ms. Katz to retake first-semester Constitutional Law.   

There's a second problem (which also applies to the argument that health care is a right):  If Carla is correct in asserting a constitutional right to have a public payroll job, then others (i.e., that's you and me, we the taxpayer-suckers) have an offsetting constitutional obligation to pick up the tab.

That is utter nonsense.  To argue that some have the right to enjoy the fruits of the labor of others who are obliged to provide such labor, is to argue for feudalism. 
If there were doubts about how Ms. Katz rose to her present "stature," Ms. Katz is quickly dispelling them.   She has obviously ignored the saying, "Better to be silent and thought a fool, than to speak and erase all doubt." (Paraphrased somewhat.) 
In addition, as an advocate, that remark is a disaster.  The overt recalcitrance of union leaders in the face of a major budget deficit -- under anyone's math -- is an insult to the average New Jersey taxpayer who works in the private sector with no benefits other than those he pays for, with little or no job security and while getting hammered with taxes, regulations and restrictions on all sides.   While the current Governor's rhetoric has at times been offensive and strategically erroneous, the union rhetoric has often surpassed the Governor's.  The Bergen County teachers' union representative's infamous "prayer" joke -- which should have gotten the speaker fired for outright stupidity -- is but one example.  
Eric Dixon is an attorney and member of the Bar of New York and New Jersey.  He specializes in strategic analysis, legislative analysis and legal analysis, and has extensive experience in the federal securities laws, corporate governance laws, and ballot access election law.  

Lieberman Bill Threatens Your Citizenship, Our Economy

Could your citizenship be in jeopardy if a new Senate bill passes?

Connecticut's "independent" Senator Joseph Lieberman has proposed (and Massachusetts' new Senator Scott Brown has co-sponsored) a new Senate bill (S.3327 link here) providing that suspected enemy combatants be subject to losing their citizenship and be tried before a military commission instead of a civilian jury in a regular criminal case.   Put aside the desire to combat terrorism; this bill has dangerous implications while likely to have absolutely no value in actually protecting anyone or deterring either regular homicide or terrorism-related homicide attempts. 

This bill is undoubtedly a byproduct of the Times Square car bomb attempt, which while it may be terrorist-related, should be viewed in its essence as an attempt to kill people.   The fact that it is terrorism-related should not make the harm any greater, just as a non-terrorism-related attempted murder should never be viewed as somewhat benign.  The difference is merely one of scope; terrorism threatens multiple people and generally is thought of as less avoidable, whereas many people think they can avoid the hard-core criminal or the high-crime areas or the isolated nut-job who threatens mayhem.   This is a fundamental flaw in the criminal code when legislators focus on some particular 'intent' as enhancing the crime, when the harm actually threatened or suffered is really no different to the victim.  But this issue is more about grandstanding -- or finding a crisis convenient to justify another expansion of government power and infringement on your civil libertiesI  It certainly does not seem to be about actually protecting people.

The nature of our legal system is based on precedent and thus allows and encourages lawyers and judges to base future arguments and decisions on prior precedent, I.e. What was done earlier. This precedential system explains why some legal commentators -- like us -- are troubled by the risks this proposed bill presents to the constitutional rights and protections of citizens.

The spectre of removing citizenship should be used sparingly and only in the most extreme cases where removal has a practical, as opposed to symbolic, meaning. Revoking citizenship from a naturalized person suggests that anyone's citizenship is discretionary and could -- however theoretically -- be pulled for good, bad or no reason. Of course the decision (and the law) would be reviewable in court, but the risk of losing citizenship remains. For a people taught that we have citizenship by birthright, the idea of the government having any ability to revoke citizenship must be scary.

At the very least, when citizenship can be revoked, how comfortable can you be about your other rights? Property rights? Contract rights? The rule of law? Without the foregoing, you don't have trust, and without trust, you cannot have a market-based economy.

Senator Lieberman is a former Connecticut Attorney General.  He is the latest to join the parade of prosecutors-turned-politicians who think an expansion of the criminal code (as opposed to more cops on the beat or,  heavens forbid, more border patrolmen) is the answer to what ails our nation.   Crime, Politics and Policy strongly disapproves of this Senate bill and urges all readers to contact their representatives in Congress to voice their opposition.

Eric Dixon is an attorney in New York who handles legislative, strategic and legal analysis as well as regular legal matters.   He can be reached at 917-696-2442 and through this blog at

Friday, May 7, 2010

Unemployment Statistics Mess

Friday morning we hear a government report that (1) payrolls are up an estimated 224,000 (after adjusting for census workers), and (2) unemployment ROSE to 9.9 percent.

The apparent contradiction is explained by workers either joining the labor force (recent graduates from years past who never had a job!), or those coming back from long term unemployment (meaning they didn't count in the earlier U-3 figure which is the rate everyone uses, once out of work for six months) or others deemed to not be looking for work). Nevertheless, a 0.2 percent jump in unemployment should not rationally be viewed as a sign of improving economic times.

Eric Dixon: an attorney based in New York who handles economic, strategic and legal analysis. For questions, call 917-696-2442.

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Judicial Independence from Politics: The New Jersey Supreme Court

This week New Jersey's new Governor Chris Christie announced he would not reappoint a sitting Supreme Court judge to a new term, and chose a successor pending State Senate approval.   The issue of the Supreme Court's composition has become the political football of the week.   Among the commentators on the issue have been judges on the Supreme Court.  
One judge, Deborah Poritz, is reported to have complained that judges should not be afraid for their jobs -- i.e., in fear of not being renominated -- based upon their decisions.
The Crime, Politics and Policy Blog response:  Judge Poritz is absolutely correct!
Judges should be above politics.  The judiciary is a necessary check on the legislative and executive branches of our government (whether we're talking federal or state).   Judges are very free to make rulings on the law without interference from the other branches.   What is at issue is a judge's future career prospects if he/she depends on the consent of the other branches of government to remain in that position; that is much different from being "free" to rule on the law.
A principled judge should make decisions on the law without any regard for the political consequences or the then-prevailing "will of the people."  Sometimes judges are the only protection between the "peasant wisdom" of the unwashed masses and gross violations of civil and human rights.   This standard means that judges should be willing to confront the other branches and take their principled stands, not only when such stands may be unpopular, but particularly when they may be unpopular.   That is the definition of courageous.   That would be the standard of behavior for a judge who puts principles over politics, and rights of the people over personal career ambition.  

What New Jersey needs is a judiciary whose judges are willing to take principled stands and defend the system of separation of powers and the rule of law.   Resisting political pressure is a necessary part of the task.   A judge who is worried about being reappointed is simply not putting the law first.

Two wrongs don't make a right.   Governor Christie may be entitled to choose his judges (as are our Presidents) but any choice of a judge based on the outcomes of cases yet to be decided, and not on principles and a respect for procedure and the law, is sure to be flawed.   Whether one agrees or disagrees with Christie's choice or rationale, the sitting members of the New Jersey judiciary should not be protesting if they are not reappointed.   The very concept of "appointment" means that judges should not be expecting to remain, as if if were some sort of entitlement or de facto lifetime-tenured position. 
Eric Dixon is a lawyer and member of the Bar in both New York and New Jersey.   He offers strategic analysis, legislative analysis and political consulting, in addition to conventional legal advice.  He can be reached at 917-696-2442 and at

Wednesday, May 5, 2010

Mandatory Organ Donation's Tragic Flaws

The New York proposed legislation (see my article from Friday April 30) mandating automatic enrollment of all drivers in an organ and tissue donation database unless they opt out has three tragic flaws.

The proposal raises the risk of pre-death organ harvesting by overzealous doctors or others. As Allan from Manhattan wrote, the issue is the definition of death. Bodily death (cessation of respiration) follows cessation of circulation, but brain death can occur well after respiration and circulation stop. Imagine your last sensations being that of being cut up -- literally. We execute prisoners with painkillers to abide by the Eighth Amendment. But potentially viable babies (20-24 weeks) never see the inside of a neonatal unit. And imagine what your chances of survival could be if you possess several organs on the doctor's shopping list!

(Perversely, the better health you're in, the more in demand your organs might be, so your chances of survival in the hospital might be less! Drink up fellas!)

Another flaw: Your decision to opt out must be recorded by people working in the Department of Motor Vehicles. When was the last time they were known for caring, or even being efficient? Finally, your decision must be respected by other bureaucrats and authorities.

Next flaw: There is a difference between doing good, and doing something to LOOK good. This "do gooder" bill taps into the desperation of the ill, but endangers others by putting them at the mercy of the unscrupulous. A civilized, advanced society which prides itself on being progressive does not sacrifice its weak, ill or injured.

Warning to New York Voters -- Vote of No Confidence.  The bill's sponsor, Assemblyman Richard Brodsky, is a candidate for New York Attorney General.  If this bill is indicative of Brodsky's intellect and analytical abilities, I would warn New York voters to choose among the several other fine candidates who have already declared for the office, and certainly should withhold their vote -- and their monetary contributions -- from Brodsky.

Eric Dixon is a New York lawyer and strategic consultant.

Tuesday, May 4, 2010

Times Square Bomber Caught

Overnight (past midnight) authorities announced the arrest of the suspected Times Square bomber. Ominously, the perp is an American citizen, incidentally.

Jurisdiction should be Southern District of New York. Waiting to see who will be the suspect's assigned counsel (assuming he does not have the funds for his own counsel).

The criminal charges against the suspect (who was caught only steps from the airport gate for a flight to Dubai) will be interesting to see. First, we should see a criminal complaint sworn to by a government agent (likely FBI). Any criminal information or indictment (both formal pleadings setting out the case in more legal and factual detail) should follow but only after convening of a grand jury - in other words, weeks if not months.

Let's see how much intelligence this man can/is willing to provide. Of course, expect him to quickly assert his Fifth Amendment rights, if he has not done so already. But there is always the issue of whether he has knowingly and voluntarily waived those rights if he has already begun to talk. The race (or the chess match) may already have begun.

Stay tuned.

UPDATE:  Within two days of the suspect's capture, we heard multiple reports about the content of the suspect's disclosures.   We are now starting to hear that the authorities are beginning to doubt at least some of what they have reportedly been told.   (Why some of this is getting out to the news media is also a serious concern, as raised by Congressman Peter King, and should warrant its own investigation.)

Saturday, May 1, 2010

We Told You So First: Why Goldman Senate Testimony May Backfire

This past week several Goldman Sachs managers and executives went before a Senate subcommittee to answer questions.  Without getting into the merits or demerits of the SEC's pending civil suit or any hypothetical other civil or criminal case (and certainly without defending any of the conduct alleged or revealed thus far, some of which may be very troublesome for both the entity and certain individuals), I suspected that any testimony would be a mistake -- that is, from the perspective of individuals whose conduct may give rise to legal liability in both a civil and criminal sense.   Now that the testimony has occurred, several commentators are agreeing with this caution.   Read this Bloomberg News report.
Perhaps a common saying should be amended as follows:
It is better to remain silent, and be thought guilty, than to speak, and remove all doubt.
Eric Dixon is a New York attorney with extensive experience in the securities laws and corporate governance laws, internal investigations and complex investigations of sensitive matters.   He may be reached at 917-696-2442.