Caroline Fredrickson

  • June 28, 2017

    by Caroline Fredrickson

    On June 23, hours before a midnight deadline, the Department of Justice filed a petition for a writ of certiorari with the Supreme Court asking them to review a case that may define the territorial reach of U.S. warrants.

    In U.S. v. Microsoft, the U.S. Court of Appeals for the Second Circuit held that Microsoft had no obligation to produce to the government customer emails stored on an overseas server. In so ruling, the Second Circuit held that the Electronic Communications Privacy Act (ECPA) did not apply extraterritorially and that the Department of Justice had to rely on the processes outlined in the United States-Ireland Mutual Legal Assistance Treaty should they want to access the information.

    As Judge Susan Carney on the U.S. Court of Appeals for the Second Circuit correctly pointed out in her written concurrence in the order denying rehearing en banc: “It is overdue for a congressional revision that would continue to protect privacy but would more effectively balance concerns of international comity with law enforcement needs and service provider obligations in the global context in which this case arose.” Notably, Carney was also part of the original Second Circuit panel decision.

    Since the Second Circuit’s decision both the House and the Senate have held hearings to update the Electronic Communications Privacy Act

    Read the Department of Justice’s June 23 petition. And here is a link to Microsoft’s response.

  • May 31, 2017

    by Dan Froomkin and Caroline Fredrickson

    As the reported connections between Jared Kushner and the Russian government become more suspicious -- and the possibility that he simply forgot to report those contacts on his security clearance application becomes more remote -- calls are mounting for Kushner's access to the U.S.'s top secrets be suspended.

    But who would do that? The granting and revocation of security clearances is the exclusive prerogative of the executive branch, currently headed by Kushner's father-in-law.

    So is there anything at all the legislative or judicial branches can do to overrule him?

    Do any of the executive-branch entities with control over security clearances have enough quasi-independence to defy the commander in chief's wishes?

    Essentially, no. When it comes to security clearances, there is no legal check on a president's power at all. The legislative and judicial branches have no role -- other than possibly creating political pressure to act.

    It turns out that many executive-branch powers that most people until recently considered unlikely to be abused are now looking awfully unilateral in the context of a Trump presidency. Control over security clearances is certainly one.

    "That is understood to be purely an executive function," said Steven Aftergood, who runs the Project on Government Secrecy at the Federation of American Scientists in Washington and writes the Secrecy News blog.

  • May 24, 2017
    Guest Post

    by Dan Froomkin and Caroline Fredrickson

    Robert Mueller's appointment as a special counsel to oversee the Justice Department's investigation of Russia's interference in the 2016 presidential election does not in any way preclude muscular congressional oversight into the matter.

    Nor does it give congressional witnesses carte blanche to duck questions they do not feel like answering in public.

    Within hours of the announcement about Mueller, Republican members of Congress started using his leadership of the investigation as an excuse to stand down.

    “You’ve got a special counsel who has prosecutorial powers now, and I think we in Congress have to be very careful not to interfere," Sen. Lindsey Graham (R-S.C.) told reporters on Thursday. "Public access to this is probably going to be very limited now. It’s going to really limit what the public will know about this.”

    And one of several congressional witnesses-in-waiting cited Mueller as an excuse not to answer even basic questions from his ostensible congressional overseers. Deputy Attorney General Rod Rosenstein, who played a highly controversial role in Comey's firing, briefed Senate and House members last week -- in a closed session, despite the lack of any discussion of classified material.

    “Basically any question of any substance, it was, ‘I can’t comment because it may be the subject of an investigation by Mueller,’ ” Sen. Jeff Merkley (D-Ore.) told the New York Times.

    Rep. Lloyd Doggett (D-Teaxs) said in a statement that "the most frequent answer I heard to questions from members of either party was 'I cannot answer that question.' He declined to answer any question concerning his personal conduct, motivation, or the circumstances of the firing of FBI Director James Comey, indicating that even this could be within the scope of the Mueller investigation."

  • April 10, 2017

    by Caroline Fredrickson

    Soon after President Donald Trump nominated Judge Neil Gorsuch to the Supreme Court, the Judicial Crisis Network (JCN)—a conservative secret-money group that spends millions of dollars on ads attacking judges—promised to spend up to $10 million in support of his nomination. Representing a major attack on the fairness and impartiality of our judicial branch, this same group, among many other organizations, has been increasingly involved with big-money efforts to help elect or attack their favored state supreme court judges—all behind a curtain of secrecy.

    When asked directly by Sen. Whitehouse about why these groups are so interested in supporting his nomination, Gorsuch responded, “You’d have to ask them.” For a Supreme Court candidate, this betrays an inexcusable lack of understanding and concern for the menacing role that secret money has played in this Supreme Court nomination process and in many of our state judicial elections. “We don’t know because it is dark money,” Sen. Whitehouse countered a frustrated Judge Gorsuch about the secret money group, “I can’t [ask them]. I don’t know who they are. It’s just a front group.”

    The $10 million was in addition to the $7 million that JCN already spent in its effort to distort the record of Chief Judge Merrick Garland, Obama’s Supreme Court nominee who Republicans and JCN itself previously praised.

    At the state level, the group recently spent big to help persuade Arkansas voters to reject judicial candidates who JCN argued would favor injured individuals over corporate defendants. JCN spent far more money than any of the candidates. One of its ads criticized the Arkansas Chief Justice for a unanimous ruling to strike down a voter ID law, which JCN claimed could lead to “illegal immigrants voting.” Arkansas Business said the JCN ads should be “categorized as lies.” And in 2012, JCN ran a revolting last-minute ad attacking a Michigan Supreme Court candidate, exploiting the tragic death of a U.S. soldier to lie about the judicial candidate’s record. A recent report from the Michigan Campaign Finance Network found that $3.4 million was spent on the 2016 supreme court race there, with 50 percent of the money from secret sources.

  • March 31, 2017

    by Caroline Fredrickson

    Next week, Senators will vote on Trump’s most enduring legacy as president. Lawmakers will vote up or down on Judge Neil Gorsuch, the president’s nominee to be associate justice of the Supreme Court. 

    To fulfill their advice and consent duties, members of the Senate Judiciary Committee held a four-day confirmation hearing to question Gorsuch, including his 10-year record of 2,700 appeals on the 10th Circuit Court of Appeals in Denver. As a witness, the nominee shared center stage with the looming presences of Chief Judge Merrick Garland and Trump. Sen. Patrick Leahy’s (D-Vt.) opening statement put the three competing interests in perspective:

    The Judiciary Committee once stood against a court-packing scheme that would have eroded judicial independence. That was a proud moment. Now, Republicans on this Committee are guilty of their own “court un-packing scheme.” The blockade of Chief Judge Merrick Garland was never grounded in principle or precedent.

    While Senate Republicans were meeting in back rooms to block President Obama’s nominee, extreme special interest groups were also meeting in private – to vet potential Supreme Court nominee for then-candidate Donald Trump. I do not know of any other Supreme Court nominee who was selected by interest groups, rather than by a president in consultation with the Senate, as required by the Constitution.