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Sunday, October 30, 2016

How Hillary Can Block Email Production In Election Eve Controversy

There are reports that Anthony Weiner, the still-married husband of Hillary Clinton adviser Huma Abedin, has produced to the Federal Bureau of Investigation a laptop (and who knows what else) containing a lot of emails. 

[SIDEBAR: Check out my 2013 commentary on Huma Abedin's grace under pressure when Weiner's problems with technology resurfaced.]

There are a lot of known unknowns and even unknown unknowns here. We don't know what's on the laptop or even what's the focus of the particular investigation (there could be more than one) which prompts interest in whatever's on the computer, laptop or other computing device. We don't know the subject or target (that is, any particular person) of the investigation.

[PRIOR ANALYSIS: What are the Justice Department guidelines regarding investigations of active candidates for public office? Read more here.]

But I surmise that Huma Abedin, if interested in helping Hillary Clinton, would have opportunities to at least delay the process. I am not saying the run-out-the-clock strategy would work, and I am taking a politically agnostic view of this topic (so all of you can share an anger at me!). But politics is causing one heck of a rush to judgment. If we were back in colonial times, the chickens would be squawking and the tar would be boiling.

First, there are spousal privileges that can bar both testimony by one spouse against another, and the introduction through testimony of marital communications during the marriage. (For what it's worth, here's a Justice Department memorandum, mostly pertaining to immigration matters such as sham marriages, which discusses the issue and at the very end, lists five ways the privilege can be waived or challenged by the government.) There is no ironclad privilege, and I am sure plenty of people will want (for political reasons) the privileges to be defeated, but my point here is that an objection could be raised and there might be some interesting issues.

Second, I would be wondering whether Weiner was properly authorized to turn over anything as to which his ownership or control cannot be undisputed. Were these objects really his? Were these objects shared possessions? All of these possible hurdles must be overcome.

I believe that even if the facts are overwhelmingly in support of production, each obstacle presents several questions of law and of fact. That means there are hearings, briefs, more briefs and  rearguments. All of that can delay the ultimate resolution. That's because we have due process and Huma will be entitled to her day(s) in court to fight as hard as she wants, whether on her own behalf or as proxy for Hillary Clinton.

The only thing you can be assured of? There will be no quick resolution on this and definitely not before Election Day.

Eric Dixon is a veteran corporate and investigative lawyer whose analysis and keen judgment is relied upon by business and political leaders in sensitive situations. Mr. Dixon is also a co-inventor of blockchain technology improvements which are covered by two allowed and soon-to-be-granted patents. For inquiries, reach out to him at

Thursday, October 27, 2016

Independent contractor and freelancer worker protection in New York City

Certain workplace protections typical for employees will be extended to independent contractors and "freelance" workers for New York City businesses, under a new bill passed by the New York City Council today and expected to be signed into law by the Mayor, Bill deBlasio, soon.  But oppressed and exploited workers shouldn't rejoice too much, and may need to get a lawyer anyway to protect them.

Here's why. The bill could be onerous on businesses, which risks the unintended consequence of discouraging businesses from using independent contractors and instead (perhaps) prompt them to "hire" them as "employees." 

On the other hand, the bill requires written contracts for any "gig" with a value of $800 or more, and provides for damages and legal fees to be paid to the prevailing plaintiff. Court actions can be brought in state court (Supreme Court of each borough).

The intended beneficiaries? Anyone -- everyone -- who is an independent contractor or freelancer. 

Who's not covered? Lawyers, doctors, nurses (the bill refers to "medical professionals") and salespeople. (That, by the way, is to the benefit of those professionals, because the burdens of the bill potentially could discourage New York employers from using freelancers in those professions. Keep reading.)

Who's required to comply? Any non-governmental entity. This doesn't just mean all businesses. It means religious institutions, educational institutions, nonprofits, political campaigns, just about anyone and everyone who pays $800 or more to anyone without making them an employee. 

What the bill does*:

(* - Assuming the present version is signed by Mayor DeBlasio)
  • It establishes and enhances protections for freelance workers (independent contractors / not employees) including the right to written contract, the right to be paid timely and in full, the right to be free of retaliation. 
  • It provides penalties for violations of these rights, including statutory damages, double damages, injunctive relief and attorney's fees. 
  • If you want to bring a court action, you do it in state court in the Supreme Court of each borough. 
  • The government (NYC) can get involved when it discovers or suspects there is evidence of a pattern or practice of violations, and go to court to seek penalties of up to $25,000. 
  • Complaints from the public would go to the Office of Labor Standards (OLS) which will have to set up a system to adjudicate these complaints. 
I am fielding inquiries from affected businesses, nonprofits and churches and may be reached at either 917-696-2442 or via email at

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.