Does DASO Enforce U.S. Immigration Laws?

I like Sheriff Kiki Vigil's talk. I wish he walked that talk.

US AG Jeff Sessions (l) and a proud DAC Sheriff Kiki Vigil (r)

He recently wrote, “It is the federal government’s responsibility to enforce the immigration laws and not the duty or responsibility of the local governmental agencies. . . I don’t want undocumented immigrants to be victims of crime and unscrupulous exploitation. If local law enforcement becomes immigration agents, it will discourage this community from reporting crime, and they will in fact be targeted and preyed upon, as I have seen this happen in the past.”

Well said. Consistent with what many savvy law enforcement officials say: becoming a tool of Border Patrol scares off crime victims from reporting rapes or other violent crimes.

But not well done! Department records indicate that during Vigil's time in office DASO has turned over to the Feds, or otherwise helped the Feds incarcerate, perhaps a thousand people who committed no state crime.

One DASO report lists 518 “CBP referrals” during the October 2016 to September 2017 period. “After Action Reports” from that period show that there were more than 600 people whom DASO reported to Border Patrol, helped Border Patrol apprehend, or otherwise assisted the Feds to arrest and incarcerate. For the 600, reports mention no state crimes. I didn't count the handful of others who were reportedly bringing in drugs or smuggling undocumented humans. In the six months since, there were another 195 “CBP referrals” – with only six arrests. The vast majority were not carrying drugs for sale. 

Border Patrol is doing its job. Whether one agrees or disagrees with its job description. 

Some would argue DASO should do that job too. But Sheriff Vigil doesn't. He articulates why he shouldn't enforce federal immigration laws – even while he apparently does that repeatedly. Six hundred people last year – many in little groups of two or three, crossing the border, without drugs or firearms or any apparent intent to break New Mexico's laws.

Roberts and Vigil (Sun-News)

Unless there's some mistake, some of his recent statements seem so inconsistent with the facts that they sound like lies. I've tried to get Sheriff Vigil to state his view of these facts, or correct mine. But, as for awhile now, he hasn't responded to me. So far, at least.

Last September, to obtain county commission approval of Stonegarden grants, Undersheriff Roberts and another officer promised the county commission that those grants would not require DASO to enforce immigration laws, but would be used for drugs and gunrunning. When I called Commissioner Garrett, he noted that Vigil's recent column tracked county policy. I asked whether Stonegarden meant enforcing Federal law. Garrett said, “They were not supposed to be using Stonegarden for enforcement of immigration laws, and I've asked every time it came up.” 

Video of that county commission meeting seems to show Roberts flatly misleading the Commission to get the grant approved. Commissioner John Vasquez asks what happens if a deputy, who's working overtime on Stonegarden money and has intel that someone is running drugs up in Hatch, stops the car and determines there are no drugs but the driver is here illegally. Roberts reassures him that if there were no state crimes, “We'd have to go back to our policy, that we don't enforce the immigration laws. . . They would be released.” How's that square with hunting down hundreds of families without papers for Border Patrol?

I hope Sheriff Vigil answers to someone about all this.

                                                          -30-

[The column above appeared this morning, Sunday, 29 April 2018, in the Las Cruces Sun-News, as well as on the newspaper's website and on KRWG's website.  A spoken version will air on KRWG and KTAL (101.5 FM) during the week.]

[Although I'd heard the facts discussed above, I was actually startled by the starkness of the contrast between what Mr. Vigil says and what DASO under his direction actually does.  I kept looking for some mistake.  And of course sought an explanation from the Department.  None was forthcoming, although I asked by phone-messages and email.  And knowledgeable sources confirmed, "Yeah, it's as self-contradictory as it looks."  By the way, the language I quoted at the start of the column came from Kiki's recent op-ed in the Sun-News trying to explain away Jeff Sessions's visit.]


[My memories of the September 26 Commission meeting were dim, but watching the video (starting about three hours in, at about noon that day) substantiated that Undersheriff Roberts and Sgt. Ben Casillas had stated pretty strongly, several times, that if the Commission approved the Stonegarden grant, despite concerns voiced that under the current political administration the Border Patrol would push DASO to enforce immigration laws, DASO would stick to County policy.  
Having just reviewed scores of "After Action Reports" and looked at the totals, with such extremely minimal reference in those reports to drugs, guns, or other crimes, it was really kind of sad to listen to DASO's reassurances to the County Commission.  Commissioners expressed concern that the current political climate might lead Border Patrol to ask DASO to help enforce immigration laws, despite the county policy; DASO representatives repeatedly said not only that they'd not do that but that the Border Patrol wouldn't ask them to!  Frankly, watching the video and reading the documents, one right after the other, was pretty appalling.
Stonegarden was No. 13 on the Agenda: "13. Accept and Approve Stonegarden 2016 Grant Award (EMW-2016-SS-00105) from the New Mexico Department on Homeland Security and Emergency Management Sub-Grant Agreement No. EMW-2016-SS-00105", and it's easy to watch the discussion.  (To watch video of any County meeting, go to this spot on the county's website, then press the link for commission meetings, which will take you to a page where you need to press "View Meeting" for September 26, 2017.   Then move to about 12 noon, about three hours into the meeting.]
 
[Thursday evening at a Union meeting Sheriff Vigil repeated that the only participation DASO has in Stonegarden is to stop drug traffickers and provide humanitarian aid to people stranded by coyotes!
That same evening I was reading the "After Action Reports," including one in which, during the annual Good Friday pilgrimage at Mount Cristo Rey, where there were about 3,000 pilgrims, "two individuals were seen entering the US and walking across the desert area.  The two individuals walked straight up to the exact location where we were at.  Seeing how they were extremely tired and had no water on them at all, the were provided with cold water.  The individuals were escorted down to the base of the mountain and Border Patrol Agents took custody of them."   Friday morning one of the men involved in all this confirmed that if deputies stop a car, and the people inside aren't violating law or dangerous, that's supposed to be the end of things, without any call to Border Patrol or holding the people until a Border Patrol agent can get there to take custody of them; but at DASO, the standard procedure is to call Border Patrol and turn the people over to Border Patrol.  Ain't what Kiki said.]



[With a potentially controversial column like this, I feel uncomfortable not getting the subject to confirm or deny the facts, or offer some explanation.  So my mind tries to work out ways I could be wrong here.
Q:  Were all these "After Action Reports" really about hunting down people suspected of gun-running or drug-smuggling, even if there ultimately turned out to be no guns or drugs?
A: Highly unlikely.  Since a few reports, which I didn't include in my count, mention such "intel" or mention confiscation of drugs, it seems unlikely the others would omit such information if it were there -- and, among many examples, a man and small child traveling alone (captured   ) would seem unlikely to be running guns.
Q:Well, maybe they only meant to promise not to participate in massive raids in communities.
A: That's not what they said, and not what the County policy says.  They told the County Commission, "We will not enforce immigration laws, and the Border Patrol won't ask us to violate county policy, although if there's a large group of people traveling together, some carrying a back-pack full of drugs, others who had no drugs and were only paperless might get swept up in that." 
Q: Well, not all the Reports are specific concerning DASO's role in arresting people without papers, so maybe they could argue that they only pointed people out, or rounded them up without "arresting" them or asking their citizenship, and just turned them over to Border Patrol.
A: The flat promise, repeatedly, was not to enforce immigration laws against people who'd committed no state crimes but were here illegally.  Whatever role DASO played in specific apprehensions -- and in at least some "we" [meaning DASO] took someone into custody -- it was deeply involved in helping to enforce immigration laws.]

[Also, as I mention in the column, people can and do take the position that DASO should enforce Federal Immigration laws.  I disagree.  Vigil himself articulates some of the reasons many good law-enforcement leaders in the Southwest feel local law-enforcement should generally stick to local laws.  And that's obviously county policy here. I understand that terrorists or gun-runners could be out there (though a year's "After Action Reports" don't seem to feature them), and having DASO supplement Border Patrol might make sense, if DASO stuck to dealing with those problems and drug-trafficking.  My particular concern is the vast gulf between what Mr. Vigil keeps saying and what his department does.  That's not good with any public official.]
 
[I sought these records through the Inspection of Public Records Act process.  Tthe system worked, and the documents, which were not subject to any IPRA exception, were produced -- with redaction of some information, such as precise locations patrolled.  (There was another interesting document I haven't yet received, but will discuss with County Counsel next week.)  Apologies to county staff who had to spend time on the redactions -- I know what a pain that can be -- and kudos to the county who followed the law, which public agencies do not always do.]

[6 May Note: 

[I should also note: (a) the County Commission has scheduled discussion of a resolution to terminate the Stonegarden grant contract that facilitated that conduct, (b) also on the agenda shortly ahead of that discussion is a "Presentation" by Sheriff Vigil on the subject, and (c) Ben -- I mean, Sheriff Vigil has written a commentary ("arrest reports are misleading") on that column, which appears in the Sun-News today.  Here's a link to the County Commission's agenda.  
For various reasons, including redactions, those "After Action Reports" aren't thoroughly clear.  I'll agree with Sheriff Vigil on that -- and it's why I repeatedly urged him to talk with me on the subject.  But a couple of things are clear: that DASO had involvement, as I said, in a lot of enforcement of federal immigration laws; that in most of those reports it isn't perfectly clear what DASO's exact role was; that in a few, drugs are mentioned, but that there's no mention of drugs or  reasonable suspicion of drugs (or guns) in the vast majority; and that in a few, where the accounts are more detailed, it's clear that DASO did turn people over to the feds merely for being here, with no indication drugs were found or suspected.  Further, others sources within DASO say that DASO does turn people over to the feds.
So, Tuesday morning's County Commission meeting should be interesting.]

-- 

peter goodman

575-521-0424 / 510-282-6690

Views from Soledad Canyon (blog)

Death of a Poet

In Memory of Terry Hertzler

[This post aims to help mark the passing (and, above all, the life), of our friend and fellow poet, Terry Hertzler (1950 - 2018).   Getting drafted and sent to Viet Nam changed (perhaps dominated) his life and his poetry.  His childhood . . . .  In his latter years he had long-term health problems, and spent a lot of time looking after his mother.  All in all, his life was not one many of us would have chosen to live; but the quality of the poetry he made from that life is admirable.  On a personal level, he brought to the table a deep and consistent loyalty to poetry and literature, a lot of knowledge, an inclination to help, and a cheerful but realistic view of his circumstances.  I liked him, though I never knew him well; and, obviously, I appreciated his poetry -- and his thoughtful help with my own poetry in workshops.]

Death has taken Terry Hertzler. We miss him.  Perhaps none of us really knew him well, though we knew his poems.  As Joe Somoza mentions below, those poems were solid and good; and Terry was both the affable man a San Diego poet describes him as, from earlier in his life, and the somewhat lonely-seeming gent that Joe alludes to.  He was a good man, whose life the Viet Nam War had split in half, like a lightning bold splitting a tree.  Below, I'll reprint a few of his poems, which often did reflect the war's affects on his life or bring into sharp and moving focus a well-remembered moment from his experience in country.  Although much of the subject matter of his poems was sad, even tragic, Terry himself was not, and he injected humor and insight into both the poems and his conversation.
It seems sad that none of us knew exactly when it happened.  We knew that he was feeling worse than usual, and then that he was in Beaumont Army Hospital in El Paso.  For weeks the emails preceding our semiweekly workshops included one from Terry noting that his health would keep him away, but he looked forward to the next workshop, and then in the emails preceding our April 5 workshop, his voice was silent.  Looking back, I see that on February 1 he wrote us, "Hi, everyone, / I was looking forward to this evening's workshop (been revising a poem all week), but I think I've caught this damn flu that's going around, so  I won't be there tonight. Sorry.  /  All best,   Terry"
Then on February 12, he wrote, "I plan on being there if I'm feeling better by then; I'm at the tail end of this flu (I doubt I'm still contagious since I've been fighting this for about three weeks now). But I'll let you know on Wednesday or Thursday morning. If anyone is concerned, let me know and I'll stay away."
And on March 11: "I am still in the hospital, but may come home on Tuesday; if I do, I may be able to make it Thursday. I hope so."
Reading back through those, I see why none of us felt forewarned that this illness would be his last.

Below, we reprint several of Terry's poems and also some comments by friends and fellow poets concerning Terry.


[Terry's The Case of the Stolen Feather Duster, recopied below from my blog post concerning that year's "For Love of Art" reading in Las Cruces, is a whimsical transformation of a sad and frustrating situation.  Terry was a last-minute cancellation from the 2018 event, for health reasons.]

The Case of the Stolen Feather Duster

So, my mother calls me at 4:00 in the morning, tells me she found her large feather duster. She's been up since 2:00 cleaning her house and was worried that someone might have broken in and stolen the feather duster when she wasn't looking. "It's an expensive one," she says.

"If someone broke in, Mom, they'd probably steal your flat-screen or your jewelry. Most burglars aren't really looking for used feather dusters."

"Did I wake you?" she asks.

My mother's 80 years old and generally gets up at 2:00 in the morning because that's when her dog, Joy, likes to get up. Joy pretty much runs the house. I've asked my Mom numerous times not to call before 9:00 a.m. or so, but her memory is bad and she forgets.

I moved from San Diego, where I lived for 30 years, to Las Cruces, New Mexico, to help my Mom. Sold my condo, left the beaches, a job, my friends. I'm only five minutes away now instead of 12 hours.

One morning we're sitting in her TV room, where she spends most of her time, watching the Today Show, when she suddenly looks startled. She turns and asks, "Am I late for work? Do I have a job?"

"No, Mom," I assure her. "You're retired."

"Oh, that's good."

She loses her keys sometimes, pushes the wrong buttons on her TV remote and calls to tell me she has a blue screen or a snowy screen. I drive over and fix it for her. I've showed her the procedure many times.

She's often in pain—ruptured disk pinching her sciatic nerve. Sometimes she gets angry, turns paranoid and mean, tells me I never loved her, that I'm fat and lazy and a liar, that I moved here just to get her house, that it's clear to her why I'm divorced.

In those moods, reason is impossible, so I leave, hurt by her accusations, while that small voice that each of us carries deep in our bellies whispers its own cruel indictments.

She always calls a few hours later or the next day, apologizes for being so mean if she remembers what happened—says she doesn't know why she acted that way, that she loves me, that I’m her favorite eldest son (my brother her favorite youngest son). So, humor survives. I always forgive her.

"I'm sad to learn that Terry died. For the past 4-5 years he took part in our open-mics at Palacio Bar in Mesilla, New Mexico, and for the past 2-3 years he was a regular member of our community peer-group workshop in Las Cruces, a sweet, lonely guy who enjoyed the fellowship as well as the poetry discussion. He was a good poet, always bringing something solid and convincing, sometimes a memory from Viet Nam. I'm sorry that he's gone."
                                                -- Joe Somoza

"He was a valuable Vietnam War poet, telling us how it was. Now he is with his mom and dad." 
"I will never forget Terry's enthusiastic, loud, interesting stories about his life and family, and his insightful critiques of our poems. His own poetry was always carefully crafted and deep. We learned and can still learn through his poems about his experiences in Vietnam and how that war shaped and changed him. His poems, sometimes prose poems, on other subjects will always be arresting.  He certainly will be missed by the writers in Las Cruces who knew him."
                                                            -- Anna Underwood

"His book Second Skin is one of the best books about the Vietnam War and its effect on veterans that I have ever read."
                                                            -- Brandon Cesmat (a friend of Terry's whose April 5 FB post has more to say about Terry

[Cribbed from Ted Burke's blog, "Like it or Not" :
"Terry was an energetic and constant force in the Southern California poetry scene. The loss of him is a sad moment for the community of poets and poetry aficionados in our town.   

   

"I met  poet Terry Hertzler in the mid seventies. Terry, a Vietnam vet who'd recently published his first book of poems, The Way of the Snake, recounting experiences and baked-impressions as a soldier in that ill-fated adventure, was a great guy, affable, gregarious, and , it turned out, a fine poet, a strong writer. 

Way of the Snake revealed what would become Terry's stylistic signature,a spare, lean presentation of image,impression, fact, a sharp and acute journalistic sense for the telling detail,an ear for the crusty, rich, terse rhythms of speech. . . . The man could write.

"He ran poetry series, championed the work of other writers, and had a small press from which he issued a steady stream of quality chap books that brought the world up to speed on how Terry was responding to the world, reflective, deeply felt, beautifully fit, image to page, word to musical phrase."

 

 

"Where Are your Wounds?"

"When I stand at last before the face of God, God will say to me, 'show me your wounds.' And I will say, 'I have no wounds.' And God will ask, 'Was nothing worth fighting for?’" 

I could write a column containing just that phrase, repeated 16 times.

South African writer Alan Paton put it into the mouth of a fictional character decades ago.

This principle has marked the best of my life. Falling short of it has marred the rest. Too often I've been too lazy, too busy, too comfortable, or too uncertain to stand up when I should have.

No one can live up to this principle always; but we should know what it means, and keep a crocheted version pinned to the walls of our heart.

It meant for the early Christians that in a world marked by greed and violence, you could get hurt for preaching goodness and love. As Bishop Cantú commented during a radio conversation, that's why, when disciples complained to Jesus, He told them that preaching the gospel was meant to be hard.

It meant for Paton's fictional black school principal that, while it might be easier to go along, not making a fuss, attending white people's tea parties without bringing up politics, there came a time when he had to show up (and later speak up) at anti-apartheid rallies.

If you see someone getting beaten on the street, you do what you can to distract the attackers. In a roomful of bigoted “Christians,” the rights and dignity of an atheist are worth fighting for. Or a Muslim. Whatever group you hang out in, do you honestly believe that your God wouldn't honor you for standing up to protect an innocent stranger against intolerance and injustice? If you see your god otherwise, please consider adjusting your focus on that god.

The phrase doesn't mean fight violently. It doesn't mean just the big fights: opposing apartheid, segregation, the caste system, or genocide. 

 

It means speaking up (preferably without pomposity or self-righteousness) whenever anyone is being unfairly victimized. When I was in the wrong place as a 17-year-old, a stranger saved me from being shot. I've stepped in to save people from beatings – and been beaten myself, with no one stepping up to help me. Others I know have also intervened in violent or potentially violent situations. Sometimes just one person is enough. 

 

I watch again the video of the two black men handcuffed and jailed for simply sitting in Starbucks, waiting for a friend. They never raise their voices. I'm saddened by the Starbucks employees' conduct. (The video shows they didn't need those seats.). The police bought into the “crime,” and didn't seem to think twice when the friend showed up.

But what of us? When should we bystanders speak up? I hear my police friends saying those Philadelphia officers could have been interviewing the two men because of an outstanding felony warrant. There may be times when instead of quietly videotaping we need to ask employees – or the police officers hired to protect and serve us -- what they're doing. We might be arrested for obstruction of justice or disorderly conduct. Or someone might listen. Failure to listen to reason, spoken calmly, would teach us something in itself. 

 

At least, bear witness. Expose injustice however and whenever you can.

And if there are wounds? Better those than the deeper pain from not acting.

                                                           -30-

[The above column appeared this morning, Sunday, 22 April, in the Las Cruces Sun-News, as well as  on the newspaper's website and on KRWG's website.  A spoken version will air during the week on KRWG and KTAL, 101.5 FM]

Trump, Michael Cohen, and the Russian Mafiya

    This week, Federal investigators, pursuant to a warrant sought by U.S. prosecutors in New York, raided the office of Donald Trump's lawyer, Michael Cohen, and confiscated files and his computer.

    Why is that so significant?  The attorney-client privilege matters to lawyers.  It hides all sorts of chicanery.  Judges and opposing lawyers just sigh at the phrase, and don't try to breach the privilege.  It’s a foundation of our legal system.   

    For a prosecutor to seek, and a judge to grant, such a warrant, both had to have seen damned strong evidence of serious misconduct.

    This isn't a Congressperson getting a subpoena to embarrass a political opponent.  It's career participants in the legal system acting within that system.  

    Deputy Attorney-General Rod Rosenstein signed off on this. Not some anonymous minion.  No Democratic Party ideologue – a Republican Trump appointee.  A long-time government lawyer who saw what the Trump people just did to career FBI officer Andrew McCabe.  (They fired him just quickly enough to screw up his retirement pension.)  If you're Rosenstein, you don't sign off on this unless you know it's righteous. 

    The crime-fraud exception to the attorney-client privilege means that the privilege doesn’t protect a communication used to commit a crime or defraud someone.  For example, IF Trump told Cohen to pay to silence two women just before the 2016 election, and if paying her off was a crime, the exception might prevent using the privilege to hide Trump's participation in the crime. 

    The privilege doesn’t apply to everything a lawyer does.  Cohen doesn't just try cases.  He's a fixer.  He plays – and brags about playing – a bigger role, sometimes minimally related to lawyering.  Did prosecutors argue that the communications regarded non-legal work?  Or that Trump or Cohen had somehow waived the privacy of their communications?

    We don't know that whatever they have on Cohen implicates Trump in wrongdoing.  But they have something they're sure is significant.  And Cohen reportedly tapes most conversations.  Meanwhile, even Warren Harding never mustered such a collection of openly corrupt officials ripping us off in so many ways. 

    Trump is jumping up and down and throwing tantrums.  That has strengthened the will of some Republicans to pass a law that if Trump fires Mueller, Mueller can appeal to the court, get a hearing within ten days, and try to show that he wasn’t fired for good cause.  We don't know yet if that will pass, but it's under more intense consideration.  (Trump should welcome this protection from himself, some allies say!)

    If Trump can't personally fire Mueller, and Sessions is recused, then Rosenstein could fire Mueller.  If he declined, Trump could fire him and appoint some minion to do the dirty work.

    Older folks have seen this movie.  Richard Nixon played Trump, and Archibald Cox played Mueller.  And it worked out better for Archie (who, by the way, also drove a pickup truck) than for Tricky Dick.  

    What's different?  Nixon – plus Johnson's conduct of the war, and the second Bush's “misstatements” to get us into another war – have torpedoed our innocence, and we don't trust presidents the way folks trusted Eisenhower.  Too, no one anticipated Nixon's Saturday Night Massacre (firing Cox and his deputy), and no one thought to prevent it.  And Nixon started with a much bigger landslide and more respect (though not affection) than Trump has ever had.

    On balance, it feels like we’ve been here before.  What have we learned since then?
                                                             -30-

[The column above appeared this morning, Sunday, 15 April (gee, my father would have turned 99 yesterday - I wish he were here) 2018 in the Las Cruces Sun-News, as well as on the newspaper's website and on KRWG's website.  During the week both KRWG and KTAL (101.5 FM -- or stream on www.lccommunityradio.org) will air a three-minute spoken version.]

[There's a lot more to say.  First of all, we should be clear that although Special Prosecutor Robert Mueller was one source pointing prosecutors toward Cohen, the investigation is being carried out by the U.S. Attorney's Office in New York, separately from Mueller's investigation.  Secondly, reports indicate that Mueller will soon provide Congress with the first of two reports on the results of his investigation.]

[Trump allies see the  Cohen investigation as at least as dangerous as Mueller's.  Cohen and others are desperately trying for a court order that prosecutors not review the material they seized; and that's as it should be, given concerns about the attorney-client privilege and perhaps the rights of clients unrelated to Trump and the Republican Party.  U.S. District Judge Kimba Wood said Friday that she didn't yet have enough information to rule, and asked lawyers, including Cohen, to come back to her courtroom Monday bringing additional information, including a list of Cohen's clients.  

I'm way too far away to predict the outcome; but it's clear that at least as to some of the material, prosecutors have a great argument that Cohen was not even acting as a lawyer.  (The court filing says evidence from email accounts “indicate that Cohen is in fact performing little to no legal work, and that zero emails were exchanged with President Trump.” If Trump didn't communicate with Cohen, there's no attorney-client privilege.)  Judge Wood also told Cohen's lawyers, she expected "a good-faith effort to answer the Court's questions" and said, “You need to be prepared to substantiate that the relationship was an attorney-client relationship.”

Prosecutors are accusing Cohen's and Trump's lawyers of delay; Trump's lawyer said the decision in this case could affect everyone who consults an attorney and relies on confidentiality.  They've asked the Court either to let them go through the materials and determine which they think should be kept confidential or to appoint a special master to do so.   It seems likely to me that the Court will order an "in camera" (secret) court-review of some of the seized material, which is a very common step in cases that raise such issues; but I'll bet that as to some of the material the Court will rule right away.  The whole process could take awhile.

Prosecutors accuse Cohen's / Trump's side of just trying to delay a reckoning.  They're probably right as to some of the material, which isn't entitled to attorney-client confidentiality but is potentially harmful; but there may also be serious issues here that aren't so clearcut as to some material. ]

 [She also told Cohen's lawyers, she expected "a good-faith effort to answer the Court's questions" and said, “You need to be prepared to substantiate that the relationship was an attorney-client relationship.”]

 [Perhaps one of the least noticed but more significant bits of new information this week was that Cohen, Trump's personal lawyer, visited Prague in late summer of 2016.  "So what?" you may ask, reasonably.  Well, the famous Steele dossier, which Trump's supporters have been maligning, said, as I recall, that Cohen had gone to Prague for a meeting related to Russian support for Trump.  Cohen strenuously objected that he had never done so, had not even been in Prague.  If evidence has surfaced showing conclusively that he was in Prague that summer, (a) his credibility is torpedoed and the credibility of Steele's dossier much enhanced, (b) he could face perjury charges if he said under oath what he said to the public, and (c) that's some indication that he was there for an unsavory purpose, because if he just went to Prague to get laid or see the museums, why deny he went there at all?]

[Remember, Christopher Steele was the former MI6 agent who alleged, among other things, a "golden shower" incident involving Trump.   Steele alleged that the Russians were blackmailing Trump, and that Cohen went to Prague to negotiate.  Cohen denied he'd even ever been to Prague, and posed a picture of his passport on social media.  It's not clear what evidence Mueller now has, but some note that Cohen could have kept his passport clean by entering     through the open border with Germany.  Question: did the Russians give Cohen a copy of the "golden shower" tape, to verify that they had one -- and was it among the materials seized this week?]

[I can't resist adding one experience we had with a court's in camera review.  We represented a major client claiming a company had defrauded it by claimingto have developed a self-driving forklift.  (This was decades ago.)   In fact, the company was working on the new-fangled forklift, but perhaps wasn't as far along as it had claimed in order to get the contract.  As part of discovery, we asked for all documents discussing the forklifts or the project.   We got a lot, but the company objected that the personal diary of a key employee working on the forklifts was not subject to discovery.  His religion encouraged him to keep a journal, and this was for his kids, ultimately.  Nothing to do with the project, they argued.  The Court accepted our argument that there should be an in camera review.  This wasn't as much material as there is in the Cohen case, so the Judge (or his clerk) read the diary and ruled that while most of it needn't be turned over, there were 17 pages mentioning the project.   One of those pages actually contained the employee's account of an inspection by representatives of our client, during which they watched the forklift work, with the employee riding on it but not controlling it, and thanked God that he'd been able to use the brake on the side of the forklift our clients couldn't see!]

[ Thanks to Charlotte for the reference to the interesting Rolling Stone article, Michael Cohen's Ties to Russia, Crime, and Trump, based on a new book (an excerpt from by Seth Hettena from his new book, Trump / Russia: A Definitive History, to be published by Melville House Publishing on May 8th. ).  Basically, Cohen's whole life -- starting in childhood -- has been intertwined with Russian mob figures, and much of his professional career had more with connecting Russian money to Donald Trump than with practicing law.  

Cohen's uncle owned the a Brooklyn catering hall and event space that was a well-known hangout for Russian gangsters. Cohen and his siblings all wre part-owners.   According to the uncle, Cohen didn't give up his stake in the club until after Trump's election!)

Two former federal investigators told Hettina that Cohen's father-in-law, Firma Shusterman, a naturalized U.S. citizen from Ukraine who came to the U.S. in 1975, introduced Cohen to Donald Trump and also set Cohen up in the taxi business.  Shusterman owned a fleet of taxicabs with two partners.  All three men were convicted of a money-laundering related offense in 1993. A former federal investigator said the father-in-law might have been a silent partner with Trump and a conduit for Russian investors in Trump properties and other ventures."  The investigator also said Trump's group gave Cohen his job as a favor to the father-in-law, but Cohen denied that to Hettina, commenting: "Your source is creating fake news.")

Cohen once ran 260 yellow cabs with his Ukrainian-born partner, the "taxi king" Simon V. Garber, until they parted ways acrimoniously in 2012. A private investigator who examined Trump's Russia connections during Trump's presidential run, testified to the House Intelligence Committee that Cohen "had a lot of connections to the former Soviet Union, and that he seemed to have associations with organized crime figures in New York and Florida – Russian organized crime figures," including Garber.

Cohen, his in-laws, and others connected to him invested at least $17.3 million with Trump, according to Hettina.  Hettina adds:
"In the 1990s, there was an informal group of federal and local law enforcement agents investigating the Russian Mafiya in New York that called themselves 'Red Star.' They shared information they learned from informants. It was well known among the members of Red Star that Cohen's father-in-law was funneling money into Trump ventures. Several sources have told me that Cohen was one of several attorneys who helped money launderers purchase apartments in a development in Sunny Isles Beach, a seaside Florida town just north of Miami. This was an informal arrangement passed word-of-mouth: 'We have heard from Russian sources that … in Florida, Cohen and other lawyers acted as a conduit for money.'"

It's no news that Trump was kept afloat by Russian and Ukrainian money for years.  I remember seeing during the election a documentary that included footage of Trump's son bragging about all the money.  Hettina provides some numbers: "a Reuters investigation found that at least 63 individuals with Russian passports or addresses have bought at least $98.4 million worth of property in the seven Trump-branded luxury towers. And that was a conservative estimate. At least 703 – or about one-third – of the 2044 units were owned by limited liability companies, or LLCs, which could conceal the property's true owner. Executives from Gazprom and other Russian natural resource giants also owned units in Trump's Sunny Isles towers. In an observation that several people I spoke with echoed, Kenneth McCallion, a former prosecutor who tracked the flows of Russian criminal money into Trump's properties, told me, 'Trump's genius – or evil genius – was, instead of Russian criminal money being passive, incidental income, it became a central part of his business plan.' McCallion continued, 'It's not called 'Little Moscow' for nothing. The street signs are in Russian. But his towers there were built specifically for the Russian middle-class criminal.'"

Anyway, I've quoted or summarized enough from the Hettina excerpt.  There's more in the Rolling Stone piece, and still more in the soon-to-be-published book.]

[Can't resist adding that as more and more information comes out, the Trump-Cohen "attorney-client privilege" argument looks sillier and sillier.  First, it's clear that prosecutors had already looked at Cohen's emails, pursuant to an earlier subpoena, and knew he did "little or no legal work."  Secondly,  Trump (in tweets) and Cohen's lawyers (in court) claimed that the seized files involved confidential communications to and from many other "innocent clients"; but Cohen has often said he has just one client, Trump; and when Judge Wood asked for a client list, Cohen's lawyers couldn't provide one.  Given a few extra hours, they still couldn't.  Now they're supposed to bring in a list Monday.  Nonsense!  I practice a little law too.  Under current rules, you need to keep some records, for various reasons, and if I had to provide a client list I could do it instantly.  So could most lawyers.]

Science and Faith -- Recalling Robert Ingersoll

In the local March for Science on Saturday, I will march thinking of Robert Ingersoll.

Maybe I'll carry this quotation from him: “We are the advocates of inquiry, of investigation and thought. This of itself, is an admission that we are not perfectly satisfied with all our conclusions. Philosophy has not the egotism of faith.”

He said that during the last half of the 19^th Century, when he was famous – and infamous – as “The Great Agnostic.” Many religious folks hated him passionately; but he was a hugely entertaining speaker. People in the Southwest would ride miles on horses or mules to hear him. An Iowa newspaper described faithful Baptists buying tickets and laughing loudly at his witticisms, even though they vehemently disagreed with him.

Ingersoll was a self-educated man who spoke sense, an eloquent dissenter with much to say, not only to his own time but to ours. 

Ingersoll and other “freethinkers” believed in reaching conclusions based on evidence and reasoning, not appeal to ancient authorities (or, as he stated, to sacred writings by men who believed that the sun revolved around the earth). A part of his work was to explain Darwin's discoveries in a way that laypersons in the audience could “get” evolution. Many who heard him maintained their strong faith, but recognized that certain aspects of the Bible were not literally true. 

Questions about science and faith were newer then than now. Ingersoll's belief that these questions were being answered forever was a bit optimistic. Most of the western world assumed after the Scopes Trial that religious objections to the scientific evidence of evolution would fade away; but I'm still hearing them from Las Crucens.

Ingersoll applauded our Founding Fathers for creating “the first secular government in this world” when all European nations were still based on union with churches. He called ours “the first government that said every church has exactly the same rights, and no more” and said our government had “retired the gods from politics.”

Meanwhile, the Doña Ana County Commission has passed an ordinance calling for all meetings to begin with a prayer or similar statement of good wishes for the Commission and the public.

That feels like we're going backwards. We're entitled to our various gods (or none). Most beliefs are based on some beautiful words. I hope faith improves the lives of the faithful but good sense and the thought-out preferences of our Founders mandate keeping those gods out of the business of self-government.

I discussed this with an Islamic acquaintance. No one had notified the mosque, or invited anyone from the mosque to pray; and the supporting materials in the agenda packet concerning this indicate that the proponents contemplated Christians and Jews – but would allow humanists, Wiccans, etc. to give invocations, to keep things legal and “fair.” 

When I asked him how he felt about the ordinance, he said that religion and government should be separate. I wondered later whether recent Middle Eastern history illustrates the importance of separating Church and State with an immediacy we lack. I asked if Moslems should challenge the ordinance, or sign up to give an invocation. Gently, he replied, essentially, that although he felt somewhat excluded from the plan, and disapproved, he did not want to make unpleasantness. That sometimes the better course was staying quiet.

His gentle way is not always my way, but seems wiser, somehow.

                                                   -30-

[The above column appeared in the Las Cruces Sun-News the Las Cruces Sun-News this morning, Sunday, April 8, 2018, as well as on the newspaper's website and KRWG's website.  During the week a spoken version will air on KRWG and on KTAL 101.5 FM.] 

[I truly wish folks well in their religious faith.  There are so many appealing faiths, each of which contributes many fine ideas or practices to our collective potential.  So long as those faiths are used to unite people toward the benevolent purposes most or all faiths espouse, great!  When they are used to separate and divide, even to justify killing and other hoorrible mistreatment, that's an affront to all of us and to the god in whose name someone hates or kills.

On the other hand, science is common to all of us.  It does not know all the answers, and does not claim to; but it approaches the gathering of knowledge by rational thought, experimentation, and rigorous method.   It determined long ago that the earth revolves around the sun, which certainly seems to be true, although personally I could probably not prove it; and after some quibbling, which cost a few notable lives, the Church accepted that.  Science determined in the 19th Century that we developed through evolution, not by having a Creator design us and plop us down on this planet in our current form a few thousand years ago.  Those principles -- evolution and the fact that the planet is considerably older than some religious texts suggest -- have so far stood the test of time.  Again, I couldn't prove either, personally; but if evolution is somehow wrong, someone will prove that by using the scientific method to assemble facts and scientific observations into a powerful package that disproves evolution in a way none of us could reasonably disagree with -- not by whining, "Evolution sort of conflicts with my religion, so can we pretend it never happened or teach kids 'Creationism' instead?"  I'm aware of no scientific evidence of a Creator -- let alone that some Supreme Being wishes to be called "God," or "Allah" or "Yahweh" or "Jehovah," or "the Great Spirit" to the exclusion of those other names.  Most of the religious leaders I've met tend to agree with that, but argue that what we observe in nature and national history is perfectly consistent with the existence of a God.  I'd probably agree, and I think Ingersoll did too.]

[I've picked up Ingersoll's biography again.  I hadn't realized much about his war record.  "Colonel" wasn't some honorary moniker.  He fought valiantly, once saving a large force by holding off, with a small force of mostly inexperienced soldiers, a larger Confederate force advancing; and he would have been a higher-ranked officer except that he disapproved a lot of how the war was being run, and resisted promotion. He was captured by the Confederate Army -- but General Forrest "paroled" him after coming upon a scene in which Union prisoners and Confederate soldiers alike were listening spellbound to an impromptu speech by Ingersoll, standing on a box outside where he and others were being confined.]    

Combining Open State Government with the Spaceport Business

Wednesday evening I had the pleasure of moderating the annual Sunshine Week panel on transparency in government, which focused on the Spaceport.

Access to public information is critical to our democracy. That’s what the Legislature said in enacting our Inspection of Public Records Act. That’s what courts consistently say in deciding IPRA cases. I agree.

Spaceport America is a public entity. But it’s success depends on luring customers and tenants. Those companies have trade secrets (protected by law) and other information they prefer competitors not see. 

 

The new Spaceport Commercial Aerospace Protection Act – called “The Spaceport Secrecy Act” by detractors – aims to balance these conflicting interests. Whether or not it strikes the right balance, it’s an interesting example of the legislative process working reasonably well.

Proponents offered a bill that insulated from IPRA “all records relating to a customer, the disclosure of which would reveal trade secrets or adversely affect proprietary interests of the [Spaceport] or a customer.” Way too broad. A huge explosion or fuel spill might “adversely affect proprietary interests.” 

 

Legislators agreed. The bill stalled. Then a substitute bill emerged for consideration. (Daniel Ivey-Soto was one key player.) The substitute bill tried to help the Spaceport without savaging our public interest in transparency. It protects “proprietary technical or business information, or information that is related to possible relocation, expansion, or operations . . . of customers, for which it is demonstrated, based on specific factual evidence, that disclosure of the information would cause substantial competitive harm to the aerospace customer.”

That requires the Agency to show a court, with “specific factual evidence” that disclosure would (not could) cause competitive harm and that the harm would be “substantial.” As a columnist and curmudgeon, do I like that? No. Not really. But when I contemplate asking for information, and suing if I get wrongly turned down, I mind it a whole lot less than the initial version. Particularly because abundant case-law says IPRA exceptions will be narrowly construed by courts, in favor of disclosure. I might have liked an explicit balancing test too; but under IPRA most courts will consider the actual public interest in specific information.

Moderating the panel was helpful. Spaceport Executive Director Dan Hicks, State Senators Bill Burt and Jeff Steinborn, NMFOG board member Tom Johnson, and Walt Rubel from the Sun-News all spoke. I had wondered, among other things, whether Hicks would admit that the final bill was tougher on the Spaceport than the original version, or try to gloss over the differences; he was frank, which I appreciated. 

 

Though attendance was down from previous years, the event shed light on a significant public issue. It was streamed live and will be telecast by KRWG. Citizens participated by asking questions.

Thanks to the NMSU Library, its staff members who helped organize this, and Dean Elizabeth Titus, and to Tim Parker, whose generous support makes this annual event possible.

Even the supper afterward was insightful – as well as fun. I still have no idea whether the Spaceport will prove a wonderful boon, as Hicks and so many political leaders predict, or will turn out a magnificent failure that blew money New Mexico could have used more wisely – as some pretty savvy friends of mine seem certain. 

 

But I see why others I respect, such as Heath Haussamen and Rubel, have viewed the thing a whole lot more positively after talking with Hicks.

                                                                -30-

[The above column appeared this morning, Sunday, 1 April 2018, in the Las Cruces Sun-News, as well as on the newspaper's website and KRWG's website.  During the week a spoken version will air at times on KRWG and on KTAL, 101.5 FM.]