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Category Archives: Fifth Amendment

Compelled Fingerprint Unlock Violates Fifth Amendment: Federal … – findBIOMETRICS

Posted: February 25, 2017 at 2:57 pm

Posted on February 24, 2017

Police cannot walk into a building and order everyone inside to unlock their iPhones via fingerprint scan, an Illinois federal court has ruled.

The case arose from police efforts to disrupt a suspected child pornography ring. They sought permission to enter a premises, and to demand that its inhabitants unlock their iPhones with Touch ID, believing that incriminating evidence may be stored on such devices.

In his ruling, Judge M. David Weisman determined that the broadness of this approach violates Fourth Amendment protections against unreasonable search and seizure, and Fifth Amendment protections against self-incrimination. With respect to the former, the judge essentially suggested that police ought to have specific suspicions against particular individuals, and cannot search someones phone just because they happen to be on the premises, though he emphasized that its the context in which fingerprints are taken, and not the fingerprints themselves, that raises concerns. As for the Fifth Amendment, he ruled that the fingerprint scan itself can be self-incriminating, since by performing fingerprint unlock a suspect is testifyingthat he or she has accessed the phone before, at a minimum, to set up the fingerprint password capabilities, and that he or she currently has some level of control over or relatively significant connection to the phone and its contents.

It should be a welcome ruling from the perspective of privacy advocates like the Electronic Frontier Foundation, which decried a similar police effort in California last autumn. But with a recent Minnesota Court of Appeals ruling finding that a compelled fingerprint unlock is no more testimonial than furnishing a blood sample with respect to Fifth Amendment concerns, this is still very much a contested legal frontier.

Sources: Forbes, Ars Technica

February 24, 2017 by Alex Perala

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Judge Rejects Warrant Seeking To Force Everyone At A Searched … – Techdirt

Posted: February 24, 2017 at 6:05 pm

Late last year, Thomas Fox-Brewster of Forbes uncovered a strange search warrant among a pile of unsealed documents. The warrant — approved by a magistrate judge — allowed law enforcement officers to demand that everyone present at the searched location provide their fingerprints to unlock devices seized from the same location.

In support of its request, the government cited cases dating back to 1910, as though they had any relevance to the current situation. The most recent case cited was 30 years old — still far from easily applicable to today’s smartphones, which are basically pocket-sized personal data centers.

The judge granted it, stating that demands for fingerprints, passwords, or anything (like encryption keys) that might give law enforcement access to the devices’ content did not implicate the Fourth or Fifth Amendments. While the magistrate was correct that no court has found the application of fingerprints to unlock devices to be a violation of the Fifth Amendment, the other access options (passwords, encryption keys) might pose Fifth Amendment problems down the road.

Riana Pfefferkorn has uncovered a similar warrant request, but this one has been rejected by the magistrate judge. Pretty much across the board, the order is the antithesis of the one revealed last year. The judge finds [PDF] that the broad request to force everyone present at the residence to apply their fingerprints to seized devices to unlock them implicates multiple Constitutional amendments.

The issues presented in this warrant application are at the cross section of protections provided by the Fourth and Fifth Amendments. Essentially, the government seeks an order from this Court that would allow agents executing this warrant to force “persons at the Subject Premises” to apply their thumbprints and fingerprints to any Apple electronic device recovered at the premises. (See Attach. B, tT 12.) The request is neither limited to a particular person nor a particular device. And, as noted below, the request is made without any specific facts as to who is involved in the criminal conduct linked to the subject premises, or specific facts as to what particular Apple-branded encrypted device is being employed (if any).

The judge notes the government is able to detain and search persons located at the premises being searched, but that does not extend to forcing every single person in a residence at the time of a search to comply with attempts to unlock seized devices. Because the warrant affidavit contained no particularity about the devices or who in the household the government suspected of engaging in criminal activity, the court can’t find anything that justifies the broad, inclusive language contained in the request.

This Court agrees that the context in which fingerprints are taken, and not the fingerprints themselves, can raise concerns under the Fourth Amendment. In the instant case, the government is seeking the authority to seize any individual at the subject premises and force the application of their fingerprints as directed by government agents. Based on the facts presented in the application, the Court does not believe such Fourth Amendment intrusions are justified based on the facts articulated.

The court has other problems with the affidavit — beyond the government’s unwarranted extension of Fourth/Fifth Amendment jurisprudence to cover any devices/fingerprints encountered at a searched location. Early in the order, it notes the government is deploying boilerplate nearly as outdated as its case citiations.

Despite the apparent seriousness of the offenses involved, the Court notes that some of the “boilerplate” background information included in the warrant is a bit dated, such as its explanation that “[t]he internet allows any computer to connect to another computer [so] [e]lectronic contact can be made to millions of computers around the world;” its explanation that a “Blackberry” is a common “Personal Digital Assistant” and its suggestion that the use of “cloud technology” is the exceptional way of transferring files and that transferring images to a computer by directly connecting a cable to a camera or other recording device is the expected means of data transfer.

The judge notes outdated boilerplate isn’t enough to undo probable cause assertions, but it certainly doesn’t help — especially not when the government is requesting this sort of broad permission.

The inclusion of this somewhat dated view of technology certainly does not distract from the application’s goal of establishing probable cause. However, the dated “boilerplate language” is problematic for what is not included. There is absolutely no discussion of wireless internet service and the possibilities and capabilities that wireless service presents in this context. For example, an unsophisticated intemet user, or a careless one, may fail to properly encrypt his wireless service or may share the password injudiciously. Such practices leave open the possibility that it is not an inhabitant of the subject premises that has used the internet to gather and distribute child pornography, but rather it is a person who has access to the internet service at the subject premises.

Obviously, this possibility holds true in all investigations that track the investigation outlined in the instant application. The limitations of this investigation are not fatal to establishing probable cause, but, in the Court’s view, these limitations do impact the ability of the government to seek the extraordinary authority related to compelling individuals to provide their fingerprints to unlock an Apple electronic device.

Then there’s the other assertions. The government’s application does nothing to narrow down which resident it’s seeking or what device(s) might contain evidence of criminal activity. What it does appear to be certain about — for reasons not included in the application — is that the devices it seeks are Apple products. A footnote in the order questions this assertion.

Why Apple devices are likely to be found at the premises is not explained. The Court is aware that Apple has a large market share in online hardware, but Microsoft’s Windows operating systems continue to dominate the overall market share of operating systems used.

What makes these broad, unsupported assertions even worse, especially when combined with the outdated boilerplate, is that this is apparently the direction the government is heading with its search warrants.

In closing, upon presentation of the warrant application to this Court, the government identified for this Court that the warrant application was seeking the forced fingerprinting discussed herein. The government further noted “[t]his is the language that we are making standard in all of our search warrants.” This declaration of standardization is perhaps the crux of the problem. As the Court hopes it is plain from the above, the issues presented here require a fact-intensive inquiry both for purposes of the Fourth Amendment and the Fifth Amendment.

More particularity, better probable cause, and fewer assumptions about the Fourth and Fifth Amendment’s application in a post-Riley world are what’s needed from the government, according to this order. Even though this application was rejected, it’s safe to say this same approach has worked elsewhere. We’ve seen one approved warrant already and there are likely several more safely hidden from the public eye in the government’s multitudinous sealed cases.

What’s troubling about the government’s assertions in this application is its apparent belief it’s found an encryption workaround: one that blows past Fourth and Fifth Amendment concerns using little more than boilerplate that still considers cables to be an essential part of “cloud computing,” and magistrate judges willing to buy its outdated legal arguments.

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How Congress Can Remove an Unstable President – Newsweek – Newsweek

Posted: at 6:05 pm

This article first appeared on the Verdict site.

Donald Trump may have had a rocky first three weeksin office, but they now look like a blissful honeymoon compared to the fourth one.

Amida flurry of leaks and reports of staff disarray, Trump suffered his first defeat on a Cabinet nomination, withdrawing his choice for labor secretary. He gave up on his appeals in State of Washington v. Trump, leaving the order suspending his travel ban intact.

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Anonymous aides portrayed the nations CEO roaming the White House alone at night in his bathrobe, watching cable news obsessively, and calling his national security adviserMichael Flynnat 3 a.m. to ask whether a strong or weak dollar was better for America. That same retiredLt. Gen. Flynn soon found himself defenestrated from the young administration, ostensibly for misrepresenting his contacts with the Russian ambassador during the transition.

Flynns departure revived long-standing charges that Trumps election was propelled by a Russian intelligence operation. A thorough investigation of these chargeswere the Republican-controlled Congress to permit onecould well implicate key campaign aides as coconspirators, and perhaps reach the president himself. Impeachment began to loom as a distinct (though distant) possibility.

It would normally take a Category 5 hurricane or an alien invasion to move such a story off the front pages, but President Trump may have momentarily succeeded in doing so with his 80-minute press conference. In a performance that seemed to rattle even sympathetic observers, Trump lashed out against the media and his critics with a vehemence that often bordered on incoherence.

MSNBCs Joe Scarborough tweeted that Republicans on the Hill were panicked behind the scenes by Trumps performance. Fox News chief anchor Shepard Smith called Trumps allegations against the media absolutely crazy. CNNanchor Jake Tapper judged his performance unhinged and wild. One unnamed Republican senator texted CNNs John King: He should do this with a therapist, not on live television.

Donald Trump speaks as Vice President Mike Pence looks at the Congress of Tomorrow Republican Member Retreat on January 26 in Philadelphia. Dean Falvy writes that Trumps marathon press conference refocused attention on his mental competence and stability. Critics have never been shy about diagnosing Trump with various psychological conditions, the most popular being narcissistic-personality disorder. But many self-obsessed people are capable of functioning at a high level professionally, as Trump has for much of his life. But the astonishing achievement of reaching the presidency seems to have aggravated Trumps insecurities and grievances, to the point where mental illness has become the elephant in the White House Situation Room. Alex Wong/Getty

While the Russia story isnt going away, Trumps press conference refocused attention on his own mental competence and stability. Critics have never been shy about diagnosing Trump with various psychological conditions, the most popular choice being narcissistic-personality disorder.

But many self-obsessed people are still capable of functioning at a high level professionally, as Donald Trump apparently has for much of his life. But the astonishing achievement of reaching the presidency seems to have aggravated Trumps insecurities and grievances, to the point where mental illness has become the elephant in the Situation Room.

Some mental health professionals have begun to overcome their reticence (and perhaps professional standards) to argue that the grave emotional instability indicated by Mr. Trumps speech and actions makes him incapable of serving safely as president.

Is the president able to distinguish between fact and fantasy? Can he absorb and process complex information? Does he have the capacity to make rational decisions? To many observers of his press conference, the answers were not reassuring.

Can anything be done about it? The answer to that question is not simple either.

The Twenty-fifthAmendment provides a process for the president to declare himself unable to discharge the powers and duties of his office. In that case, the vice president becomes the acting president until the president recovers from his disability.

This is simple enough when the president is aware of an upcoming medical procedure and voluntarily invokes the Twenty-fifth Amendment for a limited period of time, as President Reagan and President George W. Bush did on three separate occasions. But what if the president is so physically or mentally disabledas to be unable to recognize or acknowledge his own disability?

As I discussed in a previous article on Trumps chances of completing his term, Section 4 of the Twenty-fifth Amendment provides an involuntary procedure allowing the vice president and a majority of the Cabinet to notify the leaders of Congress that the president is disabled. In that case, the Vice President shall immediately assume the powers and duties of the office as Acting President.

This assures continuity of government if the president falls victim to a sudden illness. But if the president recoversor disputes the existence of a disability at allhe can attempt to reclaim his office by informing Congress. This will happen automatically, unless the vice president and a majority of the Cabinet provide a further declaration to Congress within four days that the president remains disabled.

If that happens, Congress must convene and make a high-stakes decision: Who is entitled to exercise the powers of the presidency, the president or the vice president?

But the president has a clear advantage in this contest: He will regain his powers unless the House and the Senate each confirm his disability by two-thirds majorities. To put it in the simplest terms, the support of either 34 senators or 145 members of the House would be sufficient to restore power to an allegedly disabled president.

In the case of physical disability, invocation of the Twenty-fifth Amendment is likely to be straightforward. In most cases, an inability to communicate will signal the presidents disability, and the restoration of communication will mark the end of it.

Mental disability is an entirely different kettle of fish. It is not necessary to argue that the president is insane in a legal or clinical sensethe constitutional standard is simply whether he is unable to discharge the powers and duties of the office.

What if a president performs his duties, but does so erratically and irrationally? And if the president loudly insists that he is capable, will the vice president and Cabinet dare invoke the Twenty-fifth Amendment, even if they are privately convinced that he is not?

As long as he retains the loyalty of a substantial minority in either the House or Senate, the president can turn the tables on his scheming lieutenants and reclaim his office. Once restored to his powers, the president can (and certainly would) dismiss the Cabinet members who doubted his capacity.

While the vice president cannot be removed from office, he can be sidelined and humiliated in countless ways until his term is over. And that assumesthe president would not seek even more extreme forms of vengeance.

Under these circumstances, the vice president and Cabinet may fear usingthe Twenty-fifth Amendment to constrain an unbalanced president until his madness has put the nation in serious peril. Is there any way out of this dilemma?

Collecting the required signatures on a declaration of disability from a majority of the Cabinet would be no simple task for Vice President Pence. He would have to do so under the nose of President Trump and his watchful staff.

Pence and his allies would have to act before any sympathetic Cabinet members are dismissed for suspected disloyalty. Any attempt by Pence or the Cabinet to consult with Congress in advance to ensure support would likely blow the secrecy of the operation and leave it dead in the water.

But Congress can act on its own to give Pence and the Cabinet the assurance they need to proceed. For example, Congress could pass a resolution, by a two-thirds vote in each House, urging the invocation of the Twenty-fifth Amendment. This would largely remove the threat that a declaration of disability would be reversed. Pence and the Cabinet could then relieve the president of his duties without much fear that Trump could recapture power within days or weeks.

There are several downsides to this approach, however. The need for prolonged debate in Congress over such a resolution would give President Trump and his supporters an opportunity to take countermeasures. He could threaten members of his party in Congress and extract declarations of fealty from the Cabinet. Individuals suspected of disloyalty could be isolated from the herd and subjected to intense pressure.

Vice President Pence would almost surely have to go on the record as opposing the resolution. This would make it awkward, to say the least, for Pence and the Cabinet to turn around and invoke the Twenty-fifth Amendment after its passage. Even more dangerously, if the resolution failed to gain a two-thirds majority in the Senate orHouse, the Twenty-fifth Amendment would essentially be deactivated as an option. Invoking it wouldnt just be risky for Pence and his cohortsit would border on political suicide.

However, there is a more subtle waythat Congress can choose to smooth the path for a declaration of disability. Individual members of Congress could send private letters to Vice President Pence, giving him confidence of support in the event of a Twenty-fifth Amendment showdown. Such a letter might look something like this:

CONFIDENTIAL

Dear Vice President Pence:

Based on President Trumps public statements and conduct in office, I have grave and increasing concerns about his capacity to perform the duties of the presidency.

If you and a majority of the principal officers of the executive departments determine that President Trump is unable to discharge the powers and duties of his office, I will give substantial weight to that determination in the event that Congress is required to decide the issue in accordance with Section 4 of the Twenty-fifth Amendment to the Constitution.

This letter will remain valid unless and until I revoke it in writing to you. You may disclose the existence of this letter on a confidential basis to members of the Cabinet. You may release it publicly as you see fit in the event that Section 4 of the Twenty-Fifth Amendment is invoked.

Such a letter would respect the separation of powers on two points. First, it would recognize that the vice president and the Cabinet (rather than Congress) must initiate the involuntary disability procedure. Second, by only promising to give substantial weight to their determination, it would preserve the power given to Congress by the Twenty-fifth Amendment to act as a check against usurpation of power by the vice president and the Cabinet.

Most importantly, such an approach would allow members of Congress to remain out of Trumps line of fire until a critical mass has been achieved. At the same time, it would shield Pence and the Cabinet from the impossibly delicate task of lining up support before invoking the Twenty-fifth Amendment.

The vice president, as the presiding officer of the Senate, maintains an office on Capitol Hill. Members of Congress could deliver their confidential letters there, where Pence would store them in a safe until needed, away from the prying eyes of the White House staff. The letters could even be handwritten, in order to avoid leaving digital tracks on congressional computer systems.

Once assured of sufficient support in Congress, especially from its GOP contingent, Vice President Pence would still need to persuade a majority of the Cabinet to support a declaration of presidential disability. This could be a formidable task. But doing so would be much easier with the knowledgeand, if necessary, the proofthat the declaration is very unlikely to be overturned by Congress.

With the outcome of any contested vote in Congress more or less assured, Acting President Pence would also have less to fear from extralegal resistance by President Trump. With little prospect of his powers being restored by legal means, Trump would find it hard to convince loyalists and waverers within the government to risk dismissal or prosecution by obeying his orders instead of Pences.

All this can be done by members of Congress at little risk to themselves. They can avoid taking a public stance on Trumps mental capacity until a critical mass has gathered and Pence has made his move. If, on the other hand, the movementto invoke the Twenty-fifth Amendment fails to gather sufficient steam in Congress, any letters received can quietly remainin Mike Pences care and disposed of at the end of his term.

If Trump resigns, or is impeached and removed from office for some other reason, the effort would become a historical footnote. And if Trump steadies himself in office and somehow dispels doubts about his mental fitness? Well, that would be the biggest surprise yet from a relentlessly astonishing man.

Unless that happens, the Twenty-fifth Amendment will be on the mind of every member of Congresswhether they admit it or notuntil the day Donald Trump relinquishes the presidency. Perhaps they will sleep better at night having placed their trust safely in the vice presidents hands. Whether Mike Pence will sleep well with that knowledge is a question for another day.

Dean Falvy is an attorney with an international business practice. He teaches constitutional law, international business transactions and other subjects at the University of Washington School of Law in Seattle.

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The Supreme Court fights for the weary black interstate traveler … – 11alive.com

Posted: February 18, 2017 at 3:56 am

Black History encapsulates more than a month. This new daily series will take a look at some lesser known events and people in the world.

The story of Shirley Chisholm.

As the Civil Rights movement dispersed around the nation, Georgia had its fair share of history. Take the Heart of Atlanta Motel Incorporateds case against the United States. The Supreme Court had recently passed the Civil Rights Act of 1964 which says racial discrimination in public places was unconstitutional.

But the motel refused to rent rooms to black customers.

Moreton Rolleston, the owner, took the case to court citing the Fifth Amendment (he said it went against his right to choose patrons for his business), the Thirteenth Amendment (involuntary servitude), and he added that Congress was going over their control over the interstate commerce (now known as the Commerce Clause).

Congress immediately came back with their own case. They referenced his Fifth Amendment right saying that it does not hinder regulation of interstate commerce. It countered the Thirteenth Amendment with the explanation that it was specifically for slavery and the negative effects of it. And, finally, Congress said its power under the Commerce Clause related to proper sleeping circumstances for blacks traveling on the interstate.

The United States District Court for the Northern District of Georgia took Congresss side in December 1964. The court won; Congress could use power granted to it by the Constitutions Commerce Clause to force privately owned businesses to follow the Civil Rights Act of 1964. The nation successfully fought against discrimination.

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Former PTC chief Cockream pleads the Fifth Amendment over missing public records – TBO.com

Posted: at 3:56 am

TAMPA With a criminal investigation hanging over him, former Public Transportation Commission chief Kyle Cockream repeatedly pleaded the Fifth Amendment during a deposition Monday into whether public records were deleted from agency cell phones.

A judge ordered Cockream to appear at the deposition as part of a public records lawsuit filed against the agency that regulates for-hire transportation in Hillsborough County. He turned up, but on advice from his attorney Michael Carey, refused to answer questions from Andrea Mogensen, a Sarasota lawyer who sued the PTC to obtain copies of text messages that Cockream sent to owners of taxicab and limousine-rental firms.

“He pled the Fifth to basically every question that I asked,” Mogensen said. “Obviously that’s very disappointing. Our objective is to recover the public records.”

The Fifth Amendment privilege allows a witness to decline to answer questions if the answers might incriminate him. The Florida Department of Law Enforcement has opened a criminal investigation into whether PTC officials deliberately deleted public records, a misdemeanor under state law.

A forensic investigator hired to extract text messages for the public records lawsuit found that seven agency phones and Cockream’s personal cell phone were reset on Oct. 8, a process that wipes them clean. A PTC invoice shows that the agency on Oct. 12 paid $2,994 to Valrico tech firm Data Specialist Group for work they did on the phones that was detailed as “Mobile device data recovery.”

Cockream, who stepped down as executive director in December, could not be reached for comment. In a recent hearing, his attorney said Cockream was not trying to hide records but hired the tech firm to back up the data on the phones.

The mising data may shed light on a controversial period during which the PTC was accused of colluding with the cab industry against the rideshare companies Uber and Lyft.

Contact Christopher O’Donnell at codonnell@tampabay.com or (813) 226-3446. Follow @codonnell_Times.

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Byron York: 25th Amendment chatter: Dems, pundits mull ways to … – Washington Examiner

Posted: at 3:56 am

As President Trump finishes his fourth week in the White House, a number of opposition lawmakers, political commentators, and self-styled members of The Resistance are discussing ways in which the president might be quickly removed from office.

Some have talked about impeachment for quite a while, even before the Trump inauguration. But that could take a long time, and it would require Trump to commit, and then be charged with and convicted of, “treason, bribery, or other high crimes and misdemeanors” to meet the Constitution’s standard for removing the president from office.

That’s too long term, say some. So now, there is increasing discussion of the 25th Amendment. The 1967 amendment, which has its roots in the Kennedy assassination, covers ways to replace an incapacitated president. Up until now, its most-discussed provision was a measure by which the president could inform the Speaker of the House and the President pro tempore of the Senate that he, the president, can no longer perform the duties of office, whereupon those two officials would declare the vice president the acting president, until such time as the president informed them that he was again able to perform his duties. The amendment has been used or considered for cases in which the president underwent surgery or was under anesthesia.

Now, however, The Resistance is looking at Section 4 of the 25th Amendment, which would allow the vice president and a majority of cabinet officers, or the vice president and a majority “of such other body as Congress may by law provide,” to declare the president unable to serve, making the vice president the acting president. If there is a disagreement say, the president believes he is able to serve and the vice president and a majority of the cabinet or the other body don’t then Congress decides who will be president. Here is the text of that portion of the amendment:

Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.

Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.

Now, lawmakers are talking about the amendment. Democratic Rep. Jackie Speier, a member of the House Intelligence Committee who on Thursday evening told the BBC that the Trump-Russia affair is “as big as Watergate, if not bigger,” said on Friday that the 25th Amendment might be triggered if Trump doesn’t “act presidential.”

“The 25th Amendment is there to provide a backstop if in fact the president becomes incapacitated,” Speier told CNN Friday afternoon.

“Do you believe he is incapacitated?” asked anchor Brianna Keilar.

“Well, I think that we have got to be very careful,” Speier said. “He needs to start acting presidential. He needs to start recognizing that as president you don’t go around and shoot down the media, as if it’s some kind of a game you’re playing. You don’t take on people saying nasty things about them. You don’t take foreign leaders and hang up the phone with them or besmirch them, as he has with some of the European leaders. I mean, he has got to get a grip. And so the 25th Amendment is there if a president becomes incapacitated.

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Speier went on to describe the situation after Woodrow Wilson suffered a stroke and Wilson’s wife Edith served as something of a de facto president. “I don’t think that Melania Trump is in a position to do that,” Speier said an odd remark, given that she was discussing the 25th Amendment’s structure of presidential succession.

“You are very serious about this?” asked Keilar.

“I’m serious about conveying to the president that he’s got to get serious,” Speier answered. “That we have efforts underway around the globe attempting to exploit our dysfunction right now. He’s got to act presidential.”

Speier is in no way the only person buzzing about the 25th Amendment in these first weeks of the Trump administration.

On Tuesday, Democratic Rep. Earl Blumenauer announced he is forming “a working group to clarify and strengthen the 25th Amendment.” “Like many people, I’ve noticed a renewed interest in the 25th Amendment as we’ve seen erratic behavior out of the White House,” Blumenauer said in a statement. “As I examined the amendment, it became clear that in the case of mental or emotional incapacity, there is a glaring flaw.”

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That “glaring flaw,” Blumenauer explained, is this: What if the president just fires those cabinet officers who believe he is no longer fit to serve? What then? Blumenauer wants to clarify how the “such other body” passage in the amendment would work. And with Donald Trump in office, he wants to start now.

A growing number of pundits seem to agree. In a February 10 column, the Washington Post’s Kathleen Parker noted that it would take two years, until the election of a Democratic Congress, before Trump could be impeached and removed. But “with luck,” she wrote, “there’s chance we won’t have to wait two long years,” because the drafters of the 25th Amendment anticipated “circumstances warranting a speedier presidential replacement.”

“Aren’t we there yet?” asked Parker.

Post blogger Jennifer Rubin has mentioned the 25th Amendment repeatedly, noting on Feb. 15 that Trump has “rais[ed] questions about his own mental stability and the potential for his removal from office (by impeachment, resignation or the 25th Amendment.)”

The day before, Rubin wrote that, “If [Trump] does not drastically and immediately alter his conduct and approach to the job, lighthearted banter about impeachment or activation of the 25th Amendment will become markedly more serious.”

On Feb. 6, Rubin wrote, in a column on what is up and what is down in Trump’s Washington: “UP: Americans who now know what is in the 25th Amendment.” And on January 25 just five days into Trump’s presidency Rubin wrote, generously, that “We are not calling yet for invocation of Section 4 of the 25th Amendment.”

On Feb. 9, Time magazine just happened to publish a piece headlined “The 25th Amendment at 50 and What Happens if the President Can’t Do His Job,” noting that “the amendment has become newly newsworthy in recent weeks.”

On Jan. 31, the New York Times’ David Brooks approvingly quoted Johns Hopkins professor and former George W. Bush State Department official Eliot Cohen, who wrote on January 29 that, “It will not be surprising in the slightest if [Trump’s] term ends not in four or in eight years, but sooner, with impeachment or removal under the 25th Amendment.”

In Cohen’s article, in The Atlantic, he wrote that Trump’s presidency “will probably end in calamity,” with the possibility of an end hastened by the 25th Amendment. “The sooner Americans get used to these likelihoods, the better,” Cohen wrote.

Most of the 25th Amendment talk began at least a few days after Trump’s inauguration. But David Frum, the former George W. Bush speechwriter, brought up the subject on Nov. 16 eight days after the election. In a tweet that morning, Frum wrote: “Twenty-Fifth Amendment to the Constitution. Article 4. We’re all going to be talking a lot more about it in the months ahead.”

Indeed, months later, on Jan. 23, when Trump, during a get-together with congressional leaders, reportedly briefly mentioned his belief that millions of people voted illegally in the election, Frum tweeted: “Pro tip: when meeting w the people who have the power to remove you under the 25th amendment, try not to say anything glaringly insane.”

And now Democratic members of Congress are forming a group to “clarify and strengthen” the 25th Amendment. What Blumenauer and other may have in mind is to use the “such other body as Congress may by law provide” passage to create a new way to oust the president.

If the cabinet is the group required to go along with the vice president and decide that the president cannot perform his duties well, every one of those cabinet heads was appointed by the president. They might be loyal to the man who gave them their jobs, and therefore choose to keep him in office.

Blumenauer anticipated that problem in his statement announcing the working group. “The amendment allows Congress to select some ‘other body’ other than the cabinet to determine whether the president is capable of discharging the duties required, and remove him or her if necessary,” the statement said. “Yet, this body is undefined, and there is no guidance for how it should operate. After examining the issue, Blumenauer believes living former presidents and vice presidents could constitute the body.”

So what if Trump’s fate depended on a majority vote of a group composed of Barack Obama, Joe Biden, George W. Bush, Dick Cheney, Bill Clinton, Al Gore, George H.W. Bush, Dan Quayle and Jimmy Carter? Blumenauer and The Resistance would probably like their chances.

Some Trump supporters will undoubtedly dismiss this as crazy talk. But the one thing The Resistance has shown is that, even though it was consistently wrong about Trump’s chances in the election, it is more determined than ever to prevail over him eventually. And the 25th Amendment does give Congress the power to designate an “other body” to decide, which means the Constitution would not have to be amended to make such a change.

Yes, there are hurdles after hurdles in such an effort. The vice president would have to be on board. Congress would have to pass an “other body” measure by a veto-proof majority. It seems impossible, and indeed it might be. But that won’t stop The Resistance from trying.

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Byron York: 25th Amendment chatter: Dems, pundits mull ways to … – Washington Examiner

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Fearing US prosecution, Heather Mack takes the Fifth – Chicago Sun-Times

Posted: February 17, 2017 at 1:01 am

Heather Mack has acknowledged she is under threat of prosecution in the United States, citing an ongoing federal criminal proceeding in a fresh round of court filings this week.

The 21-year-old Chicagoan, imprisoned in Indonesia, made the claim as she asserted her Fifth Amendment right against self-incrimination in a legal battle scheduled to return to a Cook County courtroom on Friday. She said she would continue to do so until she is no longer under the threat of criminal prosecution in America or Indonesia.

The body of Macks mother, Sheila von Wiese-Mack, was found in August 2014 in a suitcase in the trunk of a taxi outside the St. Regis Bali Resort. Mack had been vacationing there with her mother before Tommy Schaefer, the father of her yet-to-be-born child, joined them.

Mack and Schaefer were later convicted in Indonesia for their roles in von Wiese-Macks slaying. Schaefer, now 23, was sentenced to 18 years in prison for beating the socialite to death with a fruit stand, and Mack was sentenced to 10 years for helping.

However, court records in Chicago show federal prosecutors launched an investigation into von Wiese-Macks murder shortly after she turned up dead. Schaefers cousin, Robert Ryan Justin Bibbs, has since pleaded guilty in federal court here for helping plot the murder. He is set to be sentenced in May.

RELATED: No way Heather Macks mom murdered her dad, aunt says Heather Macks confession may not hold up In videos, Heather Mack confesses to mothers murder in Indonesia

Two weeks ago, Mack appeared to give a stunning confession to her mothers murder in a series of videos on YouTube, absolving Schaefer of wrongdoing. She claimed she plotted her mothers murder because she had discovered von Wiese-Mack had killed Macks father during a family vacation to Greece. Macks aunt has called that claim a lie.

I made it up in my heart, in my mind, my soul, in my blood, in the oxygen running through my body that I wanted to kill my mother, Mack said.

But evidence outlined by federal prosecutors in Chicago appear to undermine Macks claims, and her lawyer later said the videos were recorded under pressure. Macks attorney claims she had been reading words written by Schaefer.

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Were weight loss pills, other supplements falsely marketed? – Wink News

Posted: at 1:01 am

FORT MYERS, Fla. The Federal Trade Commission is investigating two Fort Myers-based dietary supplement companies accused of deceptive advertising.

Lexium International and CellMark Biopharma were the subject of a series federal court filings in November demanding that certain information about products and marketing be released to the FTC. Derek Vest, the founder of both companies, is the target of a federal grand jury investigation into misbranded drugs and other crimes.

The U.S. attorneys office sent Vest a letter in March notifying him about the investigation.

When you get a letter like this, it means they are fixing to indict you, said Mark Bonner, a former federal prosecutor and Ave Maria law professor.

The companies are refusing to hand over certain portions of documents, citing Vests Fifth Amendment protection against self-incrimination.

The FTC contends Fifth Amendment rights that apply to a criminal defendant may not apply to a corporationand is asking for a federal magistrate ruling that would force the companies to release the information,Bonner said.

Vest did not respond to multiple requests for comment. Business filings show he is no longer listed as the principal agent for either company.

CellMark Biopharma CEO Craig Pisaris-Henderson emphasized that both companies are separate entities and said CellMark has been fully cooperative with the FTCs demands.

CellMark has removed the words scientifically formulated from its product packaging, Pisaris-Henderson said.

We literally make a change to our website and marketing material on a weekly basis, Pisaris-Hendersonwrote in an email. The one thing I can tell you is that while our formulas are made for specific issues and contain a combination of, and levels of ingredients unlike any other product currently on the market, we only state our products are Medical Nutrition that advance cellular health.

So far no criminal charges have been filed against Vest.

The U.S. attorneys office and the FTC declined comment.

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My Republica – Call to scrap fifth amendment to Wildlife Protection Bill – Republica

Posted: February 14, 2017 at 11:57 pm

KATHMANDU, Feb 15:The Conscious Citizen Group has demanded the scrapping of ‘Fifth Amendment’ of National Parks and Wildlife Protection Bill endorsed by the Legislature-Parliament arguing it was not in favour of preservation of wildlife.

At a press conference organized here on Tuesday, group campaigner Amod Dahal claimed that the fifth amendment to the wildlife protection bill endorsed by the parliament has curtailed the right of wildlife to survive in a free and natural environment.

Environment activists including Niraj Gautam, Shristi Singh Shrestha and Sangeeta Sapkota stressed the need to prohibit the establishment of factories, hotel, restaurant and transport in and around national parks acknowledging the right of animals to have a free life.

The Clause 9(2) of the amended bill has the provision that wildlife species can be provided to any individual, agency, users committee, local body and organization for study or research. Likewise, Clause 15 (E) has specified that the wildlife can be offered as gift to foreign nations.

Since the amended bills have these provisions against the concept of wildlife protection, it would affect the campaign of wildlife protection.

Myagdi’s musk deer in search of suitable habitat

Musk deer living in the mountain forests of Myagdi have started migrating to other areas due to increasing temperature and human activities.

Forest areas in Mudi, Lulang, Gurja, Kuinemangale, Dana and Muna VDCs are known as major habitats of musk deer. But with the rising temperature in the highland caused by climate change, human encroachment on forest areas and lack of sufficient diet, these herbivores animals have started leaving home grounds in search of suitable habitats, according to Babiyachaur-based Area Forest Office Chief and environmentalist Chandramani Sapkota.

This wildlife species prefers to live in a cold and peaceful atmosphere.

Musk deer is considered as one of the rare wildlife species in the world and Myagdi’s musk deer have started migrating to the Dhorpatan Wildlife Reserve and forests in Dolpa, Rukum and Mustang in search of proper home and food, locals said. RSS

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Former PTC chief Cockream pleads the Fifth Amendment over … – Tampabay.com

Posted: at 11:57 pm

TAMPA With a criminal investigation hanging over him, former Public Transportation Commission chief Kyle Cockream repeatedly pleaded the Fifth Amendment during a deposition Monday into whether public records were deleted from agency cell phones.

A judge ordered Cockream to appear at the deposition as part of a public records lawsuit filed against the agency that regulates for-hire transportation in Hillsborough County. He turned up, but on advice from his attorney Michael Carey, refused to answer questions from Andrea Mogensen, a Sarasota lawyer who sued the PTC to obtain copies of text messages that Cockream sent to owners of taxicab and limousine-rental firms.

“He pled the Fifth to basically every question that I asked,” Mogensen said. “Obviously that’s very disappointing. Our objective is to recover the public records.”

The Fifth Amendment privilege allows a witness to decline to answer questions if the answers might incriminate him. The Florida Department of Law Enforcement has opened a criminal investigation into whether PTC officials deliberately deleted public records, a misdemeanor under state law.

A forensic investigator hired to extract text messages for the public records lawsuit found that seven agency phones and Cockream’s personal cell phone were reset on Oct. 8, a process that wipes them clean. A PTC invoice shows that the agency on Oct. 12 paid $2,994 to Valrico tech firm Data Specialist Group for work they did on the phones that was detailed as “Mobile device data recovery.”

Cockream, who stepped down as executive director in December, could not be reached for comment. In a recent hearing, his attorney said Cockream was not trying to hide records but hired the tech firm to back up the data on the phones.

The mising data may shed light on a controversial period during which the PTC was accused of colluding with the cab industry against the rideshare companies Uber and Lyft.

Contact Christopher O’Donnell at codonnell@tampabay.com or (813) 226-3446. Follow @codonnell_Times.

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