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markpkessinger

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Member since: Sat May 15, 2010, 04:48 PM
Number of posts: 4,885

Journal Archives

Any lawyers care to weigh in on Stepian using the Fifth Amendment on a document subpoena?

The lawyer for Bill Stepian, Chris Christie's campaign manager, has announced that Stepian will invoke the Fifth Amendment and not comply with the subpoena demanding production of certain documents, which he received from the NJ legislature's joint committee investigating the GW Bridge access lane closings and related scandals. It sounded strange to me that he could do that, so I started trying to research the question myself. I came across the article below in the online journal, California Lawyer. If I am reading the article correctly, it sounds to me like Stepian is on very shaky legal ground in invoking the Fifth Amendment to avoid producing documents. Is my understanding correct?

Taking the Fifth with Documents
by Anthony A. De Corso | March 2012

< . . . . > (T)here is no Fifth Amendment privilege to refuse to produce subpoenaed documents on the ground their contents are self-incriminating; courts hold that such information is not "compelled testimony." However, as explained below, there is a crucial corollary: In certain circumstances the act of producing such documents may indeed be entitled to protection under the Fifth Amendment. - See more at: http://www.callawyer.com/Clstory.cfm?eid=920910#sthash.YO0uURU3.dpuf

< . . . . >

Fifth Amendment Privilege
Well-established case law holds that if a person voluntarily creates and possesses self-incriminating documents, he or she may nevertheless have to produce them in response to a subpoena. That is the law notwithstanding the privilege against self-incrimination, because the creation of such documents is not "compelled" within the meaning of the Fifth Amendment. (See Fisher v. United States, 425 U.S. 391, 409-410 (1976).) Even so, the act of producing documents may compel a person to implicitly or inherently admit that responsive papers exist, are in that person's possession or control, and are authentic. In such circumstances, the production of documents is testimonial and, because compelled, may be privileged under the Fifth Amendment. Whether the privilege applies turns on whether the act of production is likely to be incriminating. (See United States v. Hubbell, 530 U.S. 27, 36-37 (2000) (affirming dismissal of charges, based on Fifth Amendment violation.)

< . . . . >

Business Entities
Under the "collective entity doctrine," the Fifth Amendment privilege does not apply to artificial entities (such as corporations) or to their custodian of records who claims that producing documents will incriminate the custodian personally. Such entities act only through agents. Allowing these agents to assert the privilege as to the production of the entities' records would effectively extend the privilege to the entities themselves. (See Braswell v. United States, 487 U.S. 99 (1988).) Moreover, when individuals voluntarily assume the custodian position, they take on the duty to produce its records upon proper demand (Braswell, 487 U.S. at 109-10 (applying collective entity rule to president/sole shareholder of small corporation); United States v. Blackman, 72 F.3d 1418, 1426-27 (9th Cir. 1996) (applying same rule to defendant partner of law firm)). - See more at: http://www.callawyer.com/Clstory.cfm?eid=920910#sthash.YO0uURU3.dpuf
Well-established case law holds that if a person voluntarily creates and possesses self-incriminating documents, he or she may nevertheless have to produce them in response to a subpoena. That is the law notwithstanding the privilege against self-incrimination, because the creation of such documents is not "compelled" within the meaning of the Fifth Amendment. (See Fisher v. United States, 425 U.S. 391, 409-410 (1976).) Even so, the act of producing documents may compel a person to implicitly or inherently admit that responsive papers exist, are in that person's possession or control, and are authentic. In such circumstances, the production of documents is testimonial and, because compelled, may be privileged under the Fifth Amendment. Whether the privilege applies turns on whether the act of production is likely to be incriminating. (See United States v. Hubbell, 530 U.S. 27, 36-37 (2000) (affirming dismissal of charges, based on Fifth Amendment violation.)

< . . . . >




Posted by markpkessinger | Sat Feb 1, 2014, 03:48 PM (36 replies)

Commenting on Krugman's Blogpost, "Godwin Help Us"

This is a comment I posted to Paul Krugman's blog post titled, "Godwin Help Us," a column about billionaire Tom Perkins' comparison of criticism of the rich on the subject of income inequality with Kristallnacht.

Mark Kessinger New York, NY 7 hours ago

This persecution complex seems to be a widely shared affliction among conservatives on many fronts, not just the rich. Religious and/or social conservatives, when called out on their intolerance of, for example LGBT persons or gay marriage, respond by insisting that it is they themselves who are the victims of intolerance. When Christian fundamentalists are reminded that the constitutional separation of church and state prohibits laws that give Christian preferences and practices the imprimatur of the state, they claim they are being 'persecuted' by godless atheists and liberals. Discussions about a saner, more rational approach to gun control are met with hysterical claims that President Obama is coming for the guns of responsible gun owners. And what can one possibly make of the right's perennial claim that Christmas itself is under siege, other than that it is yet another way many conservative Christians convince themselves they are the victims of secular persecution?

Robin Corey, in his book, "The Reactionary Mind," posits that the unifying principle that best explains the many conservative sub-factions -- which are at times seemingly at odds with one another -- is the perception of the imminent loss of something they value and hold dear. That thing might be money, or it might be the cultural dominance of their social peer group, or any number of other things. That, for me, explains a lot about this right's tendency to see themselves as victims of persecution.


There was one thought I would have liked to have fleshed out a little more, but couldn't because of the Times' character limit on comments. Specifically, with regard to whatever thing it might be that a conservative believes he is in imminent danger of losing, that is not to say that the particular thing, whatever it might be, is necessarily ethically defensible -- often it isn't -- but that it is nevertheless something -- tangible or intangible -- that these conservatives do indeed value and fear losing.
Posted by markpkessinger | Fri Jan 31, 2014, 10:37 PM (2 replies)

SOTU: As usual, the Right gets it wrong

(I did a screen grab of the image below from last night's Rachel Maddow show, and posted it to Facebook with this commentary. after seeing various posts by right wingers fulminating aboutt President Obama's "abuse" of executive orders.)

There are many valid criticisms to be made of President Obama's State of the Union address last night -- I've made a few of them myself. But, as usual, the Right gets it wrong. All over Facebook, the media and the blogosphere today, Republicans have been foaming at the mouth over Obama's "imperial presidency," his "violation" of the Constitution and his "excessive use" of executive orders. Two points:

(1) Where in the Constitution is it contemplated that a political party that holds a majority in one half of one-third of the government could or would be permitted to prevent a duly-elected president from governing? Before Republicans have any room to talk about violations of the constitution, they should be required to demonstrate whence their authority to stymie a president, not through voting yea or nay on legislation, but through an absurd quirk of procedural rules? Yes, Congress hs the right to vote down legislation a president might want them to pass. Under the Constitution, the appropriate way to exercise that rigbt is to vote on legislation, not to abuse procedural rules for a purpose they were never intended.

(2) There is nothing unconstitutional about executive orders. They have been repeatedly upheld by the Court, suhject to certain limitations as to scope, duration, etc. And as Rachel Maddow pointed out tonight, Obama has issued fewer executive orders in his time in office than any of his recent predecessors (see the attached chart, which I screen-grabbed from the Rachel Maddow show).

Once again, Republicans are simply wrong -- wrong on the principle, and wrong on the specifics.


Posted by markpkessinger | Thu Jan 30, 2014, 02:56 PM (1 replies)

At first blush, the SOTU sounds great -- until you start delving into the substance

The President sounded some good themes last night. Unfortunately, when it came to the issue of raising the minimum wage, he swung not for the bleachers, but rather for the dugout. Once again, his opening volley in what will surely be a back-and-forth negotiation with (or capitulation to) Republicans, of $10.10 per hour probably means we'll be lucky if we see $9/hr when it is all said and done.

The MyRA proposal strikes me as a distraction from the more pressing issue of addressing Social Security (i.e., raising the cap). As a reader on Alternet observes:

thetasigma

< . . . . >

What I've heard no one discuss is the president's shocking planned end-run around Social Security which he calls "MyRA". An individualized private investment plan that supplements, (i.e., supplants and circumvents the existing SS retirement plan). Instead of removing the cap and extending the viability of SS well into the future, MyRA does nothing to address future SS problems and instead lays the groundwork for its competition, in which citizens are 'encouraged', (wink-wink) to manage their own retirement.

< . . . . >


In addition, I fail to see how these MyRAs will make it any easier for working people to save for retirement. The 'problems' the MyRAs appear to address are those of (1) risk to principal investment, and (2) uncertain return. But the reason working people haven't been saving for retirement is not because standard IRAs are too risky or their returns too uncertain. The reason people haven't been saving money for retirement is that their real wages have been flat for the last two decades, thus they don't have any money left over, after meeting basic living expenses, to save. The proposed MyRAs do nothing to address that fundamental problem.

I was encouraged by much of what the President said about the environment. But then he went on to tout continued fracking. And then, in a final contradiction, he proceeded to champion his beloved trade agreements -- particularly the TPP, which works at cross-purposes of both environmental protection and income inequality.

On the surface, it sounded like a great speech, and he certainly did an impressive job of delivering it. But sadly, like so many things with this Administration, when you begin delving into the substance of it, you find it's a hot, muddled mess.
Posted by markpkessinger | Wed Jan 29, 2014, 09:12 AM (77 replies)

What is particularly striking here . . .

. . . Is that Seeger did not invoke the Fifth Amendment, like many others understandably chose to do when called before HUAC. No, Seeger simply refused to answer the questions on the ground that he resolutely refused to recognize the legitimacy of the questions being asked by HUAC, whether directed to him or to any other citizen. This was a much more powerful statement than if he had invoked the Fifth, but it also left him with one less defense at trial. In refusing to invoke the Fifth while refusing to answer HUAC's questions, he left himself with only one avenue of defense in his eventual contempt trial, and that was his freedom of speech under the First Amendment. And he did this knowingly. Now THAT's courage! I mean, any other person facing any kind of criminal prosecution would (quite understandably) want to leave open every possible avenue of defense. But Seeger, God bless him, was intent on making a much more important, and significant, statement.
Posted by markpkessinger | Tue Jan 28, 2014, 07:00 PM (0 replies)

Pete Seeger has died

Wonderful man and humanitarian - R.I.P,

Pete Seeger, Songwriter and Champion of Folk Music, Dies at 94



Pete Seeger, the singer, folk-song collector and songwriter who spearheaded an American folk revival and spent a long career championing folk music as both a vital heritage and a catalyst for social change, died Monday. He was 94 and lived in Beacon, N.Y.

His death was confirmed by his grandson, Kitama Cahill Jackson, who said he died of natural causes at NewYork-Presbyterian Hospital.

Mr. Seeger’s career carried him from singing at labor rallies to the Top 10 to college auditoriums to folk festivals, and from a conviction for contempt of Congress (after defying the House Un-American Activities Committee in the 1950s) to performing on the steps of the Lincoln Memorial at an inaugural concert for Barack Obama.

For Mr. Seeger, folk music and a sense of community were inseparable, and where he saw a community, he saw the possibility of political action.

< . . . >

Posted by markpkessinger | Tue Jan 28, 2014, 02:10 AM (70 replies)

Still more pro-corporate propaganda from 60 Minutes

Tonight's segment on a jobs training program was nauseating. Here is the text of two comments I posted to 60 Minutes' website:

Once again, 60 Minutes does its audience a disservice with a puff piece. 60 Minutes accepted at face value the claim advanced by many Fortune 500 companies that "there are hundreds of thousands of good jobs available that companies are finding hard to fill." That there are "hundreds of thousands of good jobs" out there may well be true, but, particularly in the technology sector, the reason corporations are having a hard time filling them is not because of any shortage of "qualified candidates." There are hundreds of thousands of middle-aged, experienced workers, whose experience corporations have decided they no longer want to pay for. These workers are more than capable of learning any new skills their former employers might require. The training program discussed in the segment is certainly commendable on many levels, but we shouldn't be so naive as to think that corporations such as JP Morgan Chase are embracing these programs out of any great sense of social responsibility; rather, programs such as this provide a means for corporations to acquire highly skilled labor on the cheap. And they provide corporations with a measure of cover, diverting attention from the fact that hundreds of thousands of loyal, experienced, middle-aged workers are being brutally cast aside at a time when they have very little hope of even landing another job, let alone a job that pays anywhere near what they were previously earning.


and a follow-up:

Note also that the average starting salary for these trainees is $30K/year -- a salary that will barely support a single adult in any major metropolitan area in this country.


http://www.cbsnews.com/news/jobs-program-aids-fortune-500-underprivileged-youth/

Posted by markpkessinger | Sun Jan 26, 2014, 09:01 PM (13 replies)

"Most of you have no idea what Martin Luther King actually did"

(NOTE: I saw this essay on Daily Kos yesterday, and was just completely blown away by it. It's a view of Dr. King's legacy that probably hasn't occurred to most of us, because, unlike the writer, we didn't live the reality of day-to-day life of an African American in the South both before and after the passage of the Civil Rights Act of 1964. This writer's perspective is profound, and it is beautifully and eloquently expressed. Brilliant! I hesitate to even try to provide a meaningful excerpt. I will provide ab excerpt of the first four paragraphs, but bear in mind they really don't provide a very good indication of what is to come. Just trust me on this: take the time to follow the link and to read the full essay on DailyKos -- you won't regret it.)

Most of you have no idea what Martin Luther King actually did;

The topic at hand is what Martin Luther King actually did, what it was that he actually accomplished.

The reason I'm posting this is because there were dueling diaries over the weekend about Dr. King's legacy, and there is a diary up now (not on the rec list but on the recent list) entitled, "Martin Luther King, Jr.'s Dream Not Yet Realized." I'm sure the diarist means well as did the others. But what most people who reference Dr. King seem not to know is how Dr. King actually changed the subjective experience of life in the United States for African Americans. And yeah, I said for African Americans, not for Americans, because his main impact was his effect on the lives of African Americans, not on Americans in general. His main impact was not to make white people nicer or fairer. That's why some of us who are African Americans get a bit possessive about his legacy. Dr. Martin Luther King's legacy, despite what our civil religion tells us, is not color blind.

I remember that many years ago, when I was a smart ass home from first year of college, I was standing in the kitchen arguing with my father. My head was full of newly discovered political ideologies and black nationalism, and I had just read the Autobiography of Malcolm X, probably for the second time.

A bit of context. My father was from a background, which if we were talking about Europe or Latin America, we would call, "peasant" origin, although he had risen solidly into the working-middle class. He was from rural Virginia and his parents had been tobacco farmers. I spent two weeks or so every summer on the farm of my grandmother and step grandfather. They had no running water, no gas, a wood burning stove, no bathtubs or toilets but an outhouse, pot belly stoves for heat in the winter, a giant wood pile, a smoke house where hams and bacon hung, chickens, pigs, semi wild housecats that lived outdoors, no tractor or car, but an old plow horse and plows and other horse drawn implements, and electricity only after I was about 8 years old. The area did not have high schools for blacks and my father went as far as the seventh grade in a one room schoolhouse. All four of his grandparents, whom he had known as a child, had been born slaves. It was mainly because of World War II and urbanization that my father left that life.

< . . . . >
Posted by markpkessinger | Mon Jan 20, 2014, 11:11 AM (23 replies)

A question for Mayor Zimmer of Hoboken, NJ

First, a thousand thanks to you, Mayor Zimmer, for coming forward with this. But here is my question for you. You are reported to have written in your diary:

I thought he was honest. I thought he was moral. I thought he was something very different.


But Mayor Zimmer, why on Earth would you ever think that a person, such as Christie, with his legendary reputation for his nasty, rude, dismissive bullying of anybody who has the temerity to ask an uncomfortable question of him, was an honest broker in the first place? That kind of tactic is not the personality trait of someone who is honest; It is the hallmark of someone who is trying to control a conversation and manipulate perceptions.

For the life of me, I cannot understand why more people don't grasp this simple truth of human nature.
Posted by markpkessinger | Sat Jan 18, 2014, 07:54 PM (49 replies)

To all the New Jersey Democratic Mayors who supported Christie over Buono . . .

. . . Are you all proud of yourselves?
Posted by markpkessinger | Wed Jan 8, 2014, 09:14 PM (136 replies)
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