Legal Creep and Moral Fortitude (Part 4)

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More Legal Issues

Bob Bauer is the Professor of Practice and Distinguished Scholar in Residence at New York University School of Law. Bauer clarifies what is meant by offering “substantial assistance”:

The relevant regulation suggests that something more is required: at least “substantial assistance” to the foreign spender in providing this “thing of value.” Does a presidential campaign render this substantial assistance to a foreign national engaged in influencing an election by endorsing the specific activity and confirming its strategic utility? When the Federal Election Commission (FEC) promulgated this ban on “substantial assistance,” it said little about its scope. It did make clear that the term was to be broadly construed. It offered the concrete example of a U.S. citizen acting as a “conduit or intermediary” for foreign spending, but noted that this was provided as only one example. It expressly left open other possibilities.

The President and others associated with the campaign made no bones about the value to them of the purloined email communications. The President told a rally of supporters he “loved” Wikileaks and read from the hacked communication to support his attack on his opponent for “a degree of corruption at the highest levels of our government like nothing we have ever seen as a country before.” He drew on the emails in the debates with Secretary Clinton. Notably, when he was asked during the debates to acknowledge the Russian program of interference and given the opportunity to openly oppose the actions, he wouldn’t do so. He also mentioned Wikileaks 124 times in the last month of the campaign. The Russians could only have been strengthened in the conviction that their efforts were welcome and had value. That covers the evidence in plain sight.

Of course, investigators will examine whether there were Trump campaign communications or private assurances to foreign nationals—including Russians and associates of Wikileaks acting as their “agents”—to encourage them or help coordinate the dissemination of these materials. Coordination at this level could well trigger the application of other provisions of the rules directed at the political campaign’s acceptance or receipt of the Russian assistance, or even its direct solicitation of it. But the “substantial assistance” prong would cover the more indirect of the Trump campaign activities—including public statements—that were conducted at more of a distance, and yet still intended to signal the Russians that help was needed and of “value.”

Bauer’s insights don’t end there. He argues that Trump Jr. may be legally liable under ordinary “aiding and abetting” principles of the criminal law:

It may be easier to appreciate the case to the contrary–that liability with the requisite intent could be imposed for these actions–by considering how the case could also be brought under ordinary “aiding and abetting” principles of the criminal law.

It is well understood that established “aiding and abetting” principles have wide, elastic application. The abettor is not required, of course, to have been “in on it” from the beginning. In Learned Hand’s classic formulation in United States v. Peoni, the law requires only “that he in some sort associate himself with the venture, that he participate in it as in something that he wishes to bring about, that he seek by his action to make it succeed.” The courts have defined in various terms this association, but what is required is “some affirmative conduct designed to aid in the success of a venture with knowledge that [the]actions would assist the perpetrator, the principal of the crime.” United States v. Cowart, 595 F.2d 1023, 1031(1979).

Note that the assistance constituting aiding and abetting does not have to be substantial. The accomplice liability provision of the federal campaign finance law, focused on “substantial assistance,” is, in that sense, stricter. ,So federal prosecutors proceeding on an “aiding and abetting” theory may have the latitude to reach a broader range of Trump campaign conduct in support of the Russian program.

It would not be the first time that Prosecutors would have enforced campaign finance law with an “aiding and abetting” charge. And they have evidence in the Trump/Russia case with which to work.

The campaign was fully aware of the Russian source of the stolen material and of the Putin regime purpose to intervene in an election. The hackers did not steal into the Podesta account for their private consumption and edification; they put the stuff out with fanfare, with the intention of generating sensational disclosures that would have the most impact possible on the presidential campaign. Understanding the foreign national aim, the campaign welcomed the intrusion and did what it could to advance its objectives. The national party over the course of the month of October issued multiple releases highlighting whatever it judged politically useful in the content of the Wikileaks disclosures. The President himself, who had openly invited the Russian hacking and declared that he “loved “ Wikileaks, cited this material in the closing weeks. His confidante Roger Stone has made various and inconsistent statements about whether he had advance knowledge of the Wikileaks document releases, and there remains an open question of what he knew and how he came to know it; but he certainly amplified the disclosures by promoting them in advance and afterwards.

The possibility of legal action against senior members of the Trump administration is steadily creeping forward.

Legal Creep and Moral Fortitude (Part 3)

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We recently learned that Natalia Veselniskaya was not the only Russian in the meeting. A man who worked “counterintelligence in the Soviet military” was present as well. Rinat Akhmetshin was an intelligence officer in the Soviet Union. Akhmetshin is a lobbyist and his clients include governments and members of private industry.

We also learned there may be documents that were left with Jared Kushner and Paul Manafort. Were these documents left? Where are they now?

Legal Issues

Some people think the email and meeting was simply an effort to obtain opposition research. Put this way, the meeting is politics as usual. Do the emails or the meeting make Donald Trump Jr. legally vulnerable?

One area of vulnerability is statute 52 U.S.C. 30121, 36 U.S.C. 510 which says:

(b) Contributions and donations by foreign nationals in connection with elections. A foreign national shall not, directly or indirectly, make a contribution or a donation of money or other thing of value, or expressly or impliedly promise to make a contribution or a donation, in connection with any Federal, State, or local election.

(g) Solicitation, acceptance, or receipt of contributions and donations from foreign nationals. No person shall knowingly solicit, accept, or receive from a foreign national any contribution or donation prohibited by paragraphs (b) through (d) of this section.

(h)Providing substantial assistance.

(1) No person shall knowingly provide substantial assistance in the solicitation, making, acceptance, or receipt of a contribution or donation prohibited by paragraphs (b) through (d), and (g) of this section.

What does “solicitation” and “contribution” mean in this statute. Brendan Fischer of Campaign Legal Center said a contribution doesn’t simply refer to money. “It could mean anything of value provided to a campaign, and opposition research does appear to be something of value.” It certainly appears to be solicitation when Trump Jr. says he loves it and asks “Could we do a call first thing next week when I am back?”

Norman L. Eisen is an attorney and a senior fellow with Governance Studies at the Brookings Institution. Richard W. Painter is the S. Walter Richey Professor of Corporate Law at the University of Minnesota Law School and served as a chief White House ethics lawyer under George W. Bush. Eisen and Painter laid out the potential legal case against Donald Trump Jr., Paul Manafort and Jared Kushner in an opinion piece in the New York Times:

It raises a host of potential criminal and other legal violations for Donald Jr. and others involved, including his brother-in-law Jared Kushner; Paul Manafort, the campaign chairman at the time; and perhaps the president himself. These new facts are a critical inflection point in the Trump-Russia matter. But they should not be exaggerated: The investigation has much further to go before Donald Jr.’s liability, or that of others, can be finally assessed.

The defense that this was a routine meeting to hear about opposition research is nonsense. As ethics lawyers, we have worked on political campaigns for decades and have never heard of an offer like this one. If we had, we would have insisted upon immediate notification of the F.B.I., and so would any normal campaign lawyer, official or even senior volunteer.

That is because of the enormous potential legal liability, both individually and for the campaign. The potential offenses committed by Donald Jr., his colleagues and brother-in-law who attended the meeting, and the campaign itself, include criminal or civil violations of campaign finance laws. These laws prohibit accepting anything of value from a foreign government or a foreign national. The promised Russian “documents and information” would have been an illegal campaign contribution from a foreign government — and a priceless one.

Then there is the question of whether the statements of enthusiasm in the emails about the meeting (“I love it,” Donald Jr. wrote) constituted assent on behalf of the Trump campaign to continuing Russian help. Welcoming the information and taking the meeting can reasonably be understood to signal a broader receptivity to Russian aid. This is even more serious than the campaign finance violation because it brings conspiracy law into play. That could make Donald Jr. and others liable for all of the Russian dirty tricks that followed, including any Russian cybercrimes or other crimes targeting the Clinton campaign.

Although we do not yet have enough facts to judge, Donald Jr. and others may also be liable for conspiracy with respect to espionage, depending on how any illicit information was obtained and the level of their awareness of any spying. Because the Russian campaign that followed was nothing less than an assault on our democracy, we understand why some are raising issues of treason as well. Prosecution under the federal treason statute is ultimately unlikely because we are not at war with Russia. But during the Cold War, treasonous conduct was often prosecuted under other statutes. (Alger Hiss was sentenced to four years in prison for “forgetting” in sworn testimony that he had met with Whitaker Chambers, an American working for the Russians.)

Legal Creep and Moral Fortitude (Part 2)

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Review

Let’s add one more voice to the Trump administration’s story about Russia. Mike Pence was asked about contacts between Russians and the Trump administration by Chris Wallace on FOX News Sunday on January 15, 2017. Here is the content of that exchange:

Wallace: “I’m asking a direct question: Was there any contact in any way between Trump or his associates and the Kremlin or contacts they had?”

Pence: “I joined this campaign in the summer, and I can tell you that all the contact by the Trump campaign and associates was with the American people. We were fully engaged with taking his message to make America great again all across this country. That’s why he won in a landslide election.”

Wallace: “… if there were any contacts, sir, I’m just trying to get an answer.”

Pence: “Yes. I — of course not. Why would there be any contacts between the campaign? Chris, the — this is all a distraction, and it’s all part of a narrative to delegitimize the election and to question the legitimacy of this presidency. The American people see right through it.”

The Facts 

On June 3, 2016, Donald Trump Jr. received an email from Rob Goldstone, a former British tabloid reporter and music publicist. The email said the “Crown prosecutor of Russia met with his father Aras this morning and in their meeting offered to provide the Trump campaign with some official documents and information that would incriminate Hillary and her dealings with Russia and would be very useful to your father.” Donald Trump Jr. responded by writing “…I appreciate that. I am on the road at the moment but perhaps I just speak to Emin first. Seems we have some time and if it’s what you say I love it especially later in the summer. Could we do a call first thing next week when I am back?”

Let’s take note of what transpired here. The “Crown prosecutor of Russia” offers to “provide the Trump campaign with some official documents and information that would incriminate Hillary.” Donald Trump Jr. was delighted to hear about the documents and took steps to learn more about them. This means Donald Trump Jr. had knowledge of the who, the Crown prosecutor of Russia, and the what, incriminating documents about Hillary Clinton, of the meeting. It seems that Donald Trump Jr. saw these documents as having some value when he wrote, “especially later in the summer.” This phrase specifies a time when this information can help the campaign.

To be clear, the emails say the purpose of the meeting is to bring together a Russian attorney and Donald Trump Jr. in order to reveal information that could cast Hillary Clinton in a negative light so that the American people would not vote for her. This correspondence amounts to an effort by Russians to interfere with our election. Donald Trump Jr., and as we’ll see, Paul Manafort, and Jared Kushner coordinated a meeting with a Russian official to obtain documents that would, in effect, further the aims of the Trump campaign and Russia.

Rob Goldstone said the documents are “very high level and sensitive information but is part of Russia and its government’s support for Mr. Trump.” How could Donald Trump Jr. interpret this portion of the emails as anything other than confidential information Russia obtained by illegal means?

Apparently, the men set up the meeting with only the subject of incriminating documents as the topic to be discussed. Here are the emails that support this claim:

7 June 2016
Goldstone to Trump Jr
Hope all is well. Emin asked that I schedule a meeting with you and the Russian government attorney who is flying over from Moscow for this Thursday. I believe you are aware of the meeting – and so wondered if 3pm or later on Thursday works for you? I assume it would be at your office.

Trump Jr to Goldstone
How about 3 at our offices? Thanks Rob appreciate you helping set it up.

Goldstone to Trump Jr
Perfect … I won’t sit in on the meeting, but will bring them at 3pm and introduce you etc. I will send the names of the two people meeting with you for security when I have them later today.

Notice again, how Rob Goldstone explicitly states the meeting will be attended by the “Russian government attorney.” If this is not enough, Rob Goldstone’s subject title of the emails was “Russia – Clinton – private and confidential.”

Who else will attend the meeting? Donald Trump Jr. writes,

Trump Jr to Goldstone
Great. It will likely be Paul Manafort (campaign boss) my brother in law [Jared Kushner] and me. 725 Fifth Ave 25th floor.

So, campaign manager Paul Manafort and Jared Kushner were scheduled to meet with the “Russian government attorney.” In fact, both men were cc’d in the email sent on Wednesday, June 8, 2016 titled “Russia – Clinton – private and confidential.” You can see this information in the original emails Donald Trump Jr. tweeted out. Is it reasonable to believe that Paul Manafort and Jared Kushner had no knowledge of what the meeting was about or who they were meeting?

On June 9, 2016, Donald Trump Jr., Paul Manafort and Jared Kushner met with Russian lawyer, Natalia Veselnitskaya.

Legal Creep and Moral Fortitude (Part 1)

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The Russian collusion investigation has moved into a serious phase with the release of Donald Trump Jr.’s emails. All of the emails Donald Trump Jr. released so far can be found here. Let’s get caught up on the details.

The Trump Administration’s Original Story 

A meeting took place in June of 2016 that piqued the interest of journalists. CNN’s Jake Tapper asked Donald Trump Jr. about Russia trying to help his father’s campaign:

JAKE TAPPER: So, I don’t know if you were hearing earlier, but Robby Mook, the campaign manager for Secretary of State Hillary Clinton, I asked him about the DNC leak. And he suggested that experts are saying that Russians were behind both the leak — the hacking of the DNC emails and their release. He seemed to be suggesting that this is part of a plot to help Donald Trump and hurt Hillary Clinton. Your response?

TRUMP JR.: Well, it just goes to show you their exact moral compass. I mean, they will say anything to be able to win this. I mean, this is time and time again, lie after lie. You notice he won’t say, “Well, I say this.” We hear “experts.”

You know, ‘His house cat at home once said that this is what’s happening with the Russians.’ It’s disgusting. It’s so phony. I watched him bumble through the interview, I was able to hear it on audio a little bit. I mean, I can’t think of bigger lies, but that exactly goes to show you what the DNC and what the Clinton camp will do. They will lie and do anything to win.

You hear it with the DNC where they’re leaking emails about Bernie Sanders and his Jewish heritage, to be able to try to destroy him in the South. It’s a rigged system. It’s disgusting and the people who should be fed up because when I heard it I certainly was.

One can counter by saying Donald Trump Jr. is not an official member of the administration.

Here is what Kellyanne Conway, the White House counselor, said December 18, 2016 when questioned by John Dickerson on CBS’s Face the Nation:

JOHN DICKERSON: “Did anyone involved…in the Trump campaign have any contact with Russians trying to meddle with the election?”

CONWAY: Absolutely not, and I discussed that with the president-elect just last night. Those conversations never happened. I hear people saying it like it’s a fact on television. That is just not only inaccurate and false but it’s dangerous.

CONWAY: And it does undermine our democracy.

Is the claim that Russia hacked our elections in an effort to help Donald Trump win the presidency a “lie?” Is it a “phony” claim? Should the American people be disgusted by the claim? Was Kellyanne Conway right when she said “the only people who had information about Russia meddling, in say, summer of 2016 did not work in the Trump campaign, they worked in the Obama White House”? Is it true that there was “absolutely” no contact between Russians who were trying to meddle with the election and members of the Trump administration?

Let’s see if their statements are supported by the facts.

Political Corruption Marches On

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The Intercept published a helpful story exposing political corruption. Mark Penn is a political strategist who promoted both Bill and Hillary Clinton. He is urging Democrats to move their policies closer to the political center.

Perhaps the reader is thinking this observation is not newsworthy. Democrats were decimated in the last election cycle, something has to change. The reason this story is newsworthy is that Penn’s statement appears to be built on the foundation of financial gain, an unshakable foundation in contemporary politics.

Mark Penn is the Managing Partner at the Stagwell Group, an investment group that recently bought a minority stake in a Targeted Victory, a major Republican digital consulting company. In fact, Targeted Victory boasts about their partnership with Stagwell Media on their website. Targeted Victory provided consulting assistance for Donald Trump’s presidential campaign against Hillary Clinton and Republican Karen Handel’s campaign against Democrat Jon Ossoff, a campaign we analyzed on this blog.

This means Penn stands to gain if Targeted Victory is a successful company. Targeted Victory is ultimately successful if their consulting efforts result in campaign wins. Penn also owns SKDKnickerbocker, a company that develops policy campaigns for “for-profit colleges, AT&T, and Herbalife.” This means Penn stands to gain if these policies are ultimately implemented. Penn has inserted himself in the Democratic Party’s discourse rather than recuse himself. Why not? He stands to win, a least a little, if Democrats cave on their core principles.

Lessons from Georgia’s 6th District

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The race for the 6th district Senate seat between Republican Karen Handel and Democrat Jon Ossoff is over and it’s time to take stock. We are engaging in this exercise because many people see this race as a bellwether for future elections. I won’t make any statements about Republicans because I think they are more politically competent than Democrats. Here are the lessons Democrats should learn:

1. Spending more money does not necessarily result in winning elections.
2. News surrounding the Russia investigation cannot replace a winning platform.
3. You still have a deep communications problem. You still don’t know how to connect with everyday Americans.
4. Use of negative ads is not necessarily detrimental to a campaign.
5. Negative poll numbers for Trump will not necessarily translate to a loss for Republican candidates in local elections.
6. You don’t know southern voters. You must draft a strategic plan that is active between elections.
7. Democrats need to draft counter-legislation and reveal them at the same time as Republicans.
8. The Democratic party must become a legislative factory even if they cannot synchronize the release of the bills with Republican bills. Democrats must draft their own jobs bill, a revised healthcare bill, and a tax bill. They should have the CBO score each bill. Democrats should also draft a plan to arrive at a solution to the Syria crisis and ISIL. Democrats must present themselves as a viable alternative and give candidates in local races a platform of substance to run on.
9. Democrats should stop being corporate pawns. Democrats continue to do the bidding of corporations against the will of their constituents.

I waited to offer this evaluation until I heard from Democratic leadership. They reacted to the loss predictably. A number of them praised Ossoff’s gains, but didn’t take the blame. Democrats should take this as their loss. You are losing elections in the Trump era!

Climate Change makes Hurricanes Stronger: Showcasing the Best in Journalism (Part 5)

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We continue our series on excellent journalism by featuring an article by the Tampa Bay Times newspaper. The Tampa Bay Times is the winner of 12 Pulitzer Prizes. This news outlet is also an independent, international organization that is published in Saint Petersburg, Florida. The Tampa Bay Times is the news agency that funds the fact-checking site Politifact.

Here is how one of their articles starts:

Scientists: Climate change made Hurricane Matthew stronger

By Craig Pittman

You can’t blame climate change for creating Hurricane Matthew. But two Florida scientists say you can blame a warmer world for making the storm get so strong so fast.

Hurricanes and tropical storms gain their power from absorbing the heat of warm water. That’s why hurricane season runs from June to November, when the Atlantic Ocean, the Caribbean Sea and the Gulf of Mexico are at their warmest.

This year, global temperature readings are setting new records every month, so that 2016 is on track to be the warmest year ever.

“Ocean temperatures are playing a big role in that,” said David Zierden, Florida’s state climatologist.

This summer, the waters around the Bahamas and off Florida’s southeastern coast has been running at least 1 degree Celsius warmer than normal, he said.

“The warmer ocean temperatures surely helped fuel Matthew,” Zierden said.

James Elsner, the chairman of Florida State University’s geography department, has done an extensive study of how climate change affects hurricanes. There’s no evidence that climate change is affecting the number of tropical storms and hurricanes that develop, he said, but there is evidence to show that it makes those storms stronger.

He explained the general rule: “The warmer the ocean, the greater the intensity.”

October storms aren’t generally all that powerful, but Matthew rapidly intensified to a Category 4 hurricane. That, he said, shows the effects of an ocean that’s been heated up.

In his 2007 book Storm World: Hurricanes, Politics, and the Battle Over Global Warming, author Chris Mooney wrote that trying to link hurricanes to climate change had sparked “the biggest meteorological argument of the decade.” The lack of adequate records for hurricanes prior to the development of satellite tracking made it difficult to find enough data to make a persuasive case, he found.

But further studies, including the one led by Elsner, have shown greater likelihood for the connection.

Climate change is producing another change in hurricanes, too. Rising sea levels — produced by a combination of melting Arctic ice and the higher temperatures making the water expand — is resulting in bigger storm surges. In Florida, the sea has risen an average of 8 inches over the past century, Zierden said.

The Tampa Bay Times has done the world a great favor in creating and maintaining Politifact. This is certainly a news outlet that seeks to combat fake news.

You can read the rest of the article here.

Violence in South Sudan: Showcasing the Best in Journalism (Part 4)

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We continue our series on excellent journalism by featuring an article by the Associated Press. This news outlet is also an international organization that is headquartered in New York City.

Here is how one of their articles starts:

South Sudan Ethnic Violence hits New High as Civilians Flee

“He told me not to be afraid,” Evelyn Juma says, remembering her husband. Tears stream down the young woman’s face as she sits on her unmade bed, her newborn nursing at her chest. “That’s the last thing he ever said to me.”

On the morning of April 10, when South Sudan government soldiers broke into Juma’s house in the northwestern town of Wau, the 24-year-old never dreamed it would be the last time she’d see her husband alive.

“They kept asking him if our neighbors were Nuer and which tribe we were from,” she says. When her husband refused to turn over their friends, the soldiers forced him outside and shot him in the head.

“I heard the gunshot,” Juma says, staring at her tiny daughter. She gave birth to the child, her first, just three days later.

At least 16 civilians were killed in Wau that day in what Human Rights Watch has called an “act of collective punishment, with soldiers taking revenge against unarmed civilians based on their ethnicity.”

What happened in Wau is not an isolated incident, according to human rights groups. Across South Sudan, accounts of government soldiers killing civilians based on their tribe are driving the country deeper into despair.

The world’s youngest nation in May reclaimed the number one spot on the world’s Fragile States Index, compiled by the Washington-based non-profit The Fund for Peace. Violence in April escalated to its highest level in more than three years, according to ACLED, a non-profit focused on armed conflict and data collection.

South Sudan’s civil war, now into its fourth year, has killed more than 50,000 people and plunged parts of the nation into famine. It’s being called a man-made disaster, and civilians and aid groups are largely holding government soldiers responsible.

A doctor who has worked at one of Wau’s hospitals since the beginning of the conflict says the only casualties he’s ever treated are civilians. A wounded government soldier has never walked through the door, he says. He spoke on condition of anonymity for fear of reprisals.

According to South Sudan’s independent Human Rights Observatory, 473 civilians were unlawfully killed across the country in April alone. Accounts of execution-style murders, the burning of bodies and revenge attacks were the most common. While opposition forces also have been blamed for some killings, the report concluded that the majority of deaths were caused by government forces and allied militias.

People from minority ethnic groups say they regularly lie to men in uniform when asked about their ethnicity, for fear of being killed.

Panicked communities are seeking refuge in United Nations-protected camps or fleeing to neighboring countries. Wau’s streets are now eerily bare. Shops are boarded shut, while rows of houses sit deserted.

The Associated Press often breaks exclusive news stories and keeps its readers abreast on what is happening around the world.

You can read the rest of the story here.

Negative Consequences of Trump’s Immigration Crackdown: Showcasing the Best in Journalism (Part 3)

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We continue our series on excellent journalism by featuring an article by Reuters. This news outlet is an international organization headquartered in London, England. Reuters has a wide readership and it is published in Japanese, Arabic, French, Portuguese, Urdu, Russian and more.

Here is one of their short stories:

Fed Official says U.S. Immigration Crackdown could hit Economy

Reporting by Jonathan Spicer; Editing by Chizu Nomiyama

The Trump administration’s crackdown on illegal immigrants will likely weaken overall U.S. consumer spending and economic growth as those targeted for arrest increasingly choose to stay home and save more, a Federal Reserve policymaker said on Wednesday.

Millions of immigrants “are not going out and shopping, they are staying home, they are afraid if they go out they are not coming home,” Dallas Fed President Robert Kaplan said when asked about U.S. President Donald Trump’s months old directive.

“On the margin – and it’s too soon for the data to pick it up, but you hear it anecdotally – I believe we are going to see it, I believe those people are more likely to save than to spend,” he added at the Council on Foreign Relations. “And those two effects have some muting effect on consumer spending and therefore GDP growth.”

Reuters cuts through the political noise and highlights a lesser known issue with Trump’s immigration policy.You can read this article here.

Bias against Blacks in Criminal Risk Assessments: Showcasing the Best in Journalism (Part 2)

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We continue our series on excellent journalism by featuring one more article by ProPublica.

Here is how another one of their excellent stories starts:

Machine Bias: There’s software used across the country to predict future criminals. And it’s biased against blacks.

by Julia Angwin, Jeff Larson, Surya Mattu and Lauren Kirchner, ProPublica

On a Spring Afternoon in 2014, Brisha Borden was running late to pick up her god-sister from school when she spotted an unlocked kid’s blue Huffy bicycle and a silver Razor scooter. Borden and a friend grabbed the bike and scooter and tried to ride them down the street in the Fort Lauderdale suburb of Coral Springs.

Just as the 18-year-old girls were realizing they were too big for the tiny conveyances — which belonged to a 6-year-old boy — a woman came running after them saying, “That’s my kid’s stuff.” Borden and her friend immediately dropped the bike and scooter and walked away.

But it was too late — a neighbor who witnessed the heist had already called the police. Borden and her friend were arrested and charged with burglary and petty theft for the items, which were valued at a total of $80.

Compare their crime with a similar one: The previous summer, 41-year-old Vernon Prater was picked up for shoplifting $86.35 worth of tools from a nearby Home Depot store.

Prater was the more seasoned criminal. He had already been convicted of armed robbery and attempted armed robbery, for which he served five years in prison, in addition to another armed robbery charge. Borden had a record, too, but it was for misdemeanors committed when she was a juvenile.

Yet something odd happened when Borden and Prater were booked into jail: A computer program spat out a score predicting the likelihood of each committing a future crime. Borden — who is black — was rated a high risk. Prater — who is white — was rated a low risk.

Two years later, we know the computer algorithm got it exactly backward. Borden has not been charged with any new crimes. Prater is serving an eight-year prison term for subsequently breaking into a warehouse and stealing thousands of dollars’ worth of electronics.

Scores like this — known as risk assessments — are increasingly common in courtrooms across the nation. They are used to inform decisions about who can be set free at every stage of the criminal justice system, from assigning bond amounts — as is the case in Fort Lauderdale — to even more fundamental decisions about defendants’ freedom. In Arizona, Colorado, Delaware, Kentucky, Louisiana, Oklahoma, Virginia, Washington and Wisconsin, the results of such assessments are given to judges during criminal sentencing.

Rating a defendant’s risk of future crime is often done in conjunction with an evaluation of a defendant’s rehabilitation needs. The Justice Department’s National Institute of Corrections now encourages the use of such combined assessments at every stage of the criminal justice process. And a landmark sentencing reform bill currently pending in Congress would mandate the use of such assessments in federal prisons.

In 2014, then U.S. Attorney General Eric Holder warned that the risk scores might be injecting bias into the courts. He called for the U.S. Sentencing Commission to study their use. “Although these measures were crafted with the best of intentions, I am concerned that they inadvertently undermine our efforts to ensure individualized and equal justice,” he said, adding, “they may exacerbate unwarranted and unjust disparities that are already far too common in our criminal justice system and in our society.”

The sentencing commission did not, however, launch a study of risk scores. So ProPublica did, as part of a larger examination of the powerful, largely hidden effect of algorithms in American life.

We obtained the risk scores assigned to more than 7,000 people arrested in Broward County, Florida, in 2013 and 2014 and checked to see how many were charged with new crimes over the next two years, the same benchmark used by the creators of the algorithm.

The score proved remarkably unreliable in forecasting violent crime: Only 20 percent of the people predicted to commit violent crimes actually went on to do so.

When a full range of crimes were taken into account — including misdemeanors such as driving with an expired license — the algorithm was somewhat more accurate than a coin flip. Of those deemed likely to re-offend, 61 percent were arrested for any subsequent crimes within two years.

We also turned up significant racial disparities, just as Holder feared. In forecasting who would re-offend, the algorithm made mistakes with black and white defendants at roughly the same rate but in very different ways.

• The formula was particularly likely to falsely flag black defendants as future criminals, wrongly labeling them this way at almost twice the rate as white defendants.

• White defendants were mislabeled as low risk more often than black defendants.

Could this disparity be explained by defendants’ prior crimes or the type of crimes they were arrested for? No. We ran a statistical test that isolated the effect of race from criminal history and recidivism, as well as from defendants’ age and gender. Black defendants were still 77 percent more likely to be pegged as at higher risk of committing a future violent crime and 45 percent more likely to be predicted to commit a future crime of any kind.

ProPublica once against shows you how they analyzed the data and arrived at their conclusions. While other news outlets are chasing the latest tweets, ProPublica is producing interesting stories that are relevant to the everyday people.

You can read the rest of the article here.