Monday, September 1, 2014

The Ordinary, Insane McDonnell Meltdown

How farce turns into tragedy.

The disaster that Virginia Gov. Bob McDonnell and his wife Maureen face — excessive gifts from a donor and friend; exposure and disgrace; and a federal trial that centered on the couple's relationship — has two distinct phases.

First, the utter smallness of everything to do with the scandal; and next, the actual tragedy.

The secret of the McDonnells and the source of nearly all their problems is this: They are ordinary. Go right back to the beginning. In January of 2010, Gov. Bob McDonnell, the handsome new hope of the Republican Party, responded to the State of the Union, one month into his governorship. This was the high point of his public life. He and his wife then owed $74,904 to their credit card companies, and owned two Virginia Beach properties losing about $50,000 a year.

This is a problem you can understand: You have $75,000 in debt and two properties just bleeding money — and you can't say anything. You can't ask for help. It's got to be kept a secret; it's got to be solved before anyone finds out, because otherwise everything will be ruined. The last three lines of a Tetris board in real life. What were they going to do?

So, they took a loan. Then they took another loan, this one from the kind of new friends politicians make, a businessman named Jonnie Williams. Williams happened also to be looking to advance the prospects of Anatabloc, a supplement whose key ingredient, Anatabine, is found in tobacco. They paid off the first loan with, in part, one from Williams. They took two other loans from Williams, too. And while doing this, they kicked off a midlife crisis built on a foundation of damp popsicle sticks.

The gifts: some UVA golf clubs, a three-hour drive in a Ferrari, a Rolex (inscribed with a special message), a New York shopping trip straight out of a beach read for women of a certain age, $120,000 in low-interest loans, $15,000 in catering fees.

The thing is, it's a pathetic scandal, mired in the ordinary. Unravel to reveal fights over two beach houses, and a supplement you could buy at your local GNC. One gift that didn't end up working out: "the best tool of all — a generator." Well, that's very sensible, Jonnie. Good for hurricanes. What romance.

It's like the reality of passing out on the kitchen floor; or having to make a midnight run to Target to, in fluorescent blindness, buy a half-gallon of milk; the adult realization that it falls to you to deal with changing cable providers; every nasty impulse you've ever had, keyed to an everyday concern. That's the kind of scandal we're dealing with here: credit card debt and a generator.

This is so often how politicians fall — in scandals over four-digit and five-digit sums of money, even as their jobs give them control over sums many orders of magnitude larger. In this case, the sheer smallness of everything has become a distraction. For instance, there are enough photos of Bob McDonnell driving Jonnie Williams' Ferrari to make a flipbook-style GIF. There are photos of him posing with the Rolex. But run through the photos on your phone. Examine the contents of your heart: Would you really resist the photos? There's also the light-yourself-on-fire email from McDonnell to his wife. "You told me again yesterday that you would wreck my things and how bad I am. It hurt me to my core." But read through every email and text you've ever sent. Have you ever looked at your Facebook search history?

The McDonnells turned out to be people who wanted to drive three hours in a Ferrari. They were panicked and greedy in small, familiar, stupid ways.

Then the trial started.

To shake these charges and evade prison, the McDonnells' lawyers (there are two, one for each) have more or less argued that Maureen McDonnell (mentally unstable and lonely) brokered the deals, sought the gifts, and sought the attention of Jonnie Williams. The McDonnells ("broken down") could not commit conspiracy because they could barely talk to each other, and whose fault was that?

The argument really is: Maureen McDonnell is a slut.

These are real things said in the closing arguments by the two defense lawyers: She was "pathologically incapable of taking any kind of responsibility." "The breakdown in Bob and Maureen's relationship left a void for Jonnie Williams to fill." "We never said there was anything physical or sexual. What we said is that she cared deeply about him."

Here are some real things they said on the first day of the trial: "Maureen immediately gravitated toward Jonnie. He showered her with attention she craved." "Jonnie Williams was larger than life to Maureen McDonnell. But unlike the other man in her life, Jonnie Williams paid attention to Maureen McDonnell." Bob McDonnell wanted to "shield the dysfunction of his marriage from his youngest children and the public." She said she "hated him." He tried to fix it, but she was "distracted with other interests."

This is really happening! It's not a small, ordinary thing to do. This isn't petty — it's actually tragic. The McDonnells have cast one another out.

The grotesqueness might be more palatable if McDonnell leaned into the whole thing, grinning. But McDonnell is soft and damaged by this, whispering answers to questions in court. The Rolex, he says, was "gaudy." He wears Jos. A. Bank. He wasn't the husband he should have been. His wife underwent mental health treatment. She was on medication. He is living with his parish priest.

He never said it himself, but he didn't really have to: My wife is unbalanced. My wife is a slut. I am the godly one.

How can this be worth it?

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How Conservative, Tough-On-Crime Utah Reined In Police Militarization

With the help of libertarians, the ACLU, and a law from Maryland, the conservative legislature in Utah is leading the way in reigning in police tactics.

Lucas Jackson / Reuters

WASHINGTON — Here's how you convince a legislature full of law-and-order Republicans to back efforts to rein in militarized police tactics:

Take a law passed by the Democratic legislature of Maryland, get the local chapter of the ACLU (and a group of libertarians) to rework it slightly, put it on the floor, watch it pass basically unanimously.

That was the unlikely recipe used — successfully — by activists in Utah.

And after the startling images of police deployments in Ferguson, Missouri, the same group of Utah activists are pretty confident they'll be able to achieve even greater success in the next legislative session. This time, they're setting out to make Utah one of the first states to voluntarily limit the way its local police forces can accept and use surplus military equipment distributed by the Department of Defense.

"It's definitely another catalytic event," said Conor Boyack, president of Libertas, the libertarian group that lead the effort with the Utah ACLU. "Some lawmakers who have been shocked at the images coming out of Ferguson...[and] have expressed skepticism that those scenes could ever be on the streets of Utah are nevertheless interested in looking at this because of the images coming out of Ferguson."

"It just feels very timely for us," agreed Marina Lowe, legislative and policy counsel for the ACLU in Utah. "Having a real national incident helped make this very real for everyone."

With the U.S. Congress set to return to Capitol Hill for its first legislative work days since Ferguson, activists in Washington are scrambling to push some kind of police demilitarization legislation through Congress before lawmakers scatter again for the final 2014 campaign push.

The White House, currently in the beginning stages of an executive branch review of programs that send military equipment to local police forces, isn't ready to sign on to any of the legislative solutions.

"The review has to be conducted first to determine if the program needs adjusting. It's way too early to talk about changing legislation when we don't know what the findings will tell us," a White House official involved with the review said Friday. "It could be the case that the program needs no adjustments or needs adjustments that do not require a change in legislation."

There is also the reality that any bipartisan action on any topic in Washington right now faces a deeply divided Congress and rapidly-approaching election. Mainstream Republicans have been more cautious about changes to the criminal justice system than Democrats have, and even with momentum building among the conservative activist wing of the party, convincing the Republican House to take on police tactics seems like a tall order.

But Utah shows bipartisan demilitarization bills are possible, even in an environment where law-and-order Republicans have a lot of control, as is the case in Washington.

In January, 2012, a SWAT raid on the home of low-level marijuana suspect went terribly wrong, leaving one officer dead and several others wounded. The suspect was an Army vet with no criminal record — he who claimed the police did not announced themselves and he shot at them believing them to be burglars. He hung himself in jail after he lost a legal challenge to the warrant that authorized the raid. The case quickly became a poster child for the police demilitarization movement, and led to soul-searching among Utahans about the tactics and equipment used by their police.

Activists sprang into action, Boyack says, grabbing a copy of an existing law passed in the blue state of Maryland that requires police to keep and provide data about how and when SWAT teams are used. Data on military-like policy activity is notoriously hard to gather; there's no central repository for it and police are generally not thrilled about giving up details of controversial SWAT activities. The ACLU has called on the Obama administration to create national data collection requirements for local police who use Surplus department of Defense equipment.

The activists also proposed legislation that made it harder for police to use SWAT teams to serve warrants without crossing high evidence standards. That puts a tighter civilian oversight on police tactics similar to options proposed on the national level by activists.

In Utah, police opposed the bills. Boyack said he reached out to the ACLU to help craft a legislative strategy that could overcome the police lobby and the natural tendency of many politicians to steer clear of laws not seen as "tough on crime." The goal was to take politics out of the equation entirely.

"Early on, we reached out to ACLU to bring them on as sort of a coalition," Boyack said. "They readily agreed with the ideas we were working on, to show the legislators that this was a trans-partisan issue or nonpartisan issue."

Lowe said the partnership was an easy, if unlikely, one.

"We don't agree on a lot of issues," she said. "But we found when it comes to the Fourth Amendment we tend to get along."

Lawmakers were initially skeptical, he said, but the unified front and arguments that new transparency stemming from the data collection requirements and the regulations on warrants protect both citizens and police helped both bills sail through the legislature.

After the 2012 SWAT incident, "even the tough-on-crime types recognized that was a heavy-handed response to such a low-level crime," Boyack said.

After Ferguson, Utah members of the left-right coalition that has been driving criminal justice policy change in recent years think they can tackle the surplus equipment program at the state level. Talks are in their early stages, but Boyack said future legislative proposals could make impose restrictions on Utah cops trying to get their hands on military tech and require stringent reporting after that tech is used.

Could the Utah model work in Washington? Ferguson has put a lot of momentum behind the libertarian wing of the GOP's take on police militarization in Washington. Bills have been filed focusing on militarization of local cops as well as federal regulatory agencies. The Senate will hold hearings soon on the use of military equipment by police. As in Utah, the ACLU and the prominent libertarian activists in Washington are in general agreement about what needs to be done.

But Boyack is not bullish on Washington and its large caucus of law-and-order Republicans.

"My opinion is that there's too much inertia at the federal level," he said. "The proper way to get reform done is at the state level."

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Friday, August 29, 2014

It's On: Lawyers Fight For Supreme Court To Take Their Marriage Equality Case

The only question is whether the justices will agree to take on the issue — and, if so, which case or cases it’s going to be.

Gary Cameron / Reuters

WASHINGTON — Some of the top appellate lawyers and leading LGBT legal groups in the nation are squaring off in unusual filings at the Supreme Court this week asking the justices to hear their respective case about marriage equality.

Technically, the lawyers were responding to Supreme Court filings by state or county officials in Oklahoma, Virginia, and Utah that ask the justices to hear their case in order to uphold bans on same-sex couples' marriages.

In reality, however, the lawyers are pointing out to the justices why their case — and not a case in another state — should be the case heard by the justices in the coming term that will begin in October.

Although the justices won't consider whether to take any of the cases until, at the earliest, the end of September, the four filings this week showed how focused lawyers across the country supporting marriage equality are on getting a case — and, they hope, their case — before the justices in the next year.

The filings in cases challenging the bans on same-sex couples' marriages in Oklahoma, Utah, and Virginia start from the unusual posture that all of the same-sex couples who filed lawsuits have won in the lower courts that heard their cases. Nonetheless, the importance of the issue has led all four legal teams — there are two in Virginia — to ask the Supreme Court to resolve the issue.

The filings share one thing: They argue that the justices should take a marriage case to resolve the issue, as the Virginia class-action plaintiffs put it, "so that the constitutional rights of same-sex couples in Virginia and elsewhere may be enforced without delay."

Although all four filings agree on that point, the four teams differ on which case or cases to take and why. Each explains why their case is the best "vehicle" for resolving the question, focusing on the distinctions between the cases.

One distinction is whether the justices will hear a case only asking whether same-sex couples can marry or whether the case will also address bans on recognition of out-of-state marriages of same-sex couples.

The filings also differ on how the state government officials treat the bans: Do the justices want to hear a case in which the state is totally defending the ban or are the justices OK with hearing a case in which at least some government officials agree that the ban is unconstitutional, like in Virginia?

Additionally, at least one of the briefs raises the issue of the experience of the lawyers involved in the case with Supreme Court litigation about gay rights issues. Finally, there is a question of whether the court might take multiple cases — something explicitly recommended in some briefs.

Of course, the justices don't need to take any of the cases, or they could hold them for a while, potentially into the next term, which wouldn't begin until October 2015. The unified filings — from supporters and opponents of the various states' bans — urging the court to take up the issue, however, suggest no one wants that.

In Oklahoma, local lawyers Don Holladay and James Warner of Holladay & Chilton and Joseph Thai, the lawyers behind Smith v. Bishop, have been joined by Jeffrey Fisher of Stanford Law School's Supreme Court Litigation Clinic to push the justices to take their case on behalf of the same-sex couples who sued back in 2004.

In Virginia, two different groups once fighting with each other have now resolved (at least for the moment) to push together, albeit in separate filings. They are urging the Supreme Court to take their case, filed after the Supreme Court's 2013 decision striking down the federal ban on recognition of same-sex couples' marriages.

In the named case before the justices, Rainey v. Bostic, the local lawyers with Shuttleworth, Ruloff, Swain, Haddad & Morecock were soon thereafter joined by the American Foundation for Equal Rights and lawyers Ted Olson, who argued against California's Proposition 8 at the Supreme Court, and David Boies with their respective teams at Gibson, Dunn & Crutcher and Boies, Schiller & Flexner.

The second set of Virginia plaintiffs, a class-action lawsuit challenging the ban, successfully intervened in the Bostic case on appeal. They are represented by lawyers from the ACLU and Lambda Legal, as well as Paul Smith, the Jenner & Block lawyer who successfully argued against sodomy laws at the Supreme Court in Lawrence v. Texas.

Finally, in Utah, an ever-growing team has been assembled to represent the same-sex couples who sued the state in Herbert v. Kitchen. Peggy Tomsic, whose firm of Magleby & Greenwood brought the suit, was joined by lawyers from the National Center for Lesbian Rights at the appellate level and by Neal Katyal, the former acting solicitor general at the Justice Department who is now at Hogan Lovells, and lawyers at Gay & Lesbian Advocates & Defenders.

In other words, a lot of lawyers are in on this — and they all want to be the ones who get to say their case was the one the ended the marriage bans across the nation.

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