Congress – R&R – Reachout and Rebuild

“Hyper-partisan and hypocritical nonsense” (Katie Vincentz, Zeldin Spokesperson)

David Posnett — Sat, 30 Jan 2021 22:36:34 +0000

Excellent reports on the topic:

Rep. Zeldin’s Backtrack on Fraud Claims Fails to Silence His Critics
EH Star: Attorneys urge investigation of ZELDIN.
Twenty-two lawyers file ethics complaint against Zeldin in connection with presidential election:

By Denise Civiletti – Jan 26, 2021, 8:29 am. RIVERHEAD LOCAL

Lee Zeldin speaking on the House floor during debate on objections to Arizona election results. Image: C-Span screenshot

Twenty-two New York lawyers have filed a complaint against Rep. Lee Zeldin, accusing him of violating “the most fundamental ethics rules, including participating in frivolous litigation, making false statements regarding the presidential election, and committing, arguably, a criminal act that reflects on his trustworthiness.”

The complaint asks the Attorney Grievance Committee of the Supreme Court, Appellate Division, Third Department, where Zeldin was admitted to the New York Bar in 2004, to initiate an “immediate investigation of Rep. Zeldin’s actions and consider sanctions for his conduct, up to and including revocation of Rep. Zeldin’s license to practice law in New York.”

The complaint says Zeldin participated in “frivolous” litigation and engaged in “professional misconduct” involving “dishonesty, fraud, deceit or misrepresentation” by signing on to an amicus brief in support of a lawsuit brought in the U.S. Supreme Court by the State of Texas Dec. 8 that sought to invalidate the election results in Georgia, Michigan, Pennsylvania and Wisconsin — four battleground states won by Joe Biden in the 2020 presidential election.

Zeldin was one of 126 House Republicans who signed the amicus brief in support of the Texas lawsuit, which was rejected by the Supreme Court on Dec. 11 for lack of standing, the legal right to sue.

The complaint to the grievance committee, a copy of which was obtained by RiverheadLOCAL Monday night, says Zeldin signed on to the brief “despite the fact that numerous courts in eight different states, including the Third Circuit Court of Appeals, had already dismissed such meritless claims.”

Beyond that, the complaint states, “In the absence of any evidence of systemic malfeasance or fraud, he made public statements questioning the results of the presidential election and has spent weeks undermining confidence in the credibility and integrity of our election process.”

Zeldin — a staunch, outspoken supporter of President Trump — continued to question the presidential election results “without proof,” despite the Electoral College’s ratification of the results, the complaint states.

The Trump campaign and Trump supporters brought a series unsuccessful legal challenges to the results of the election in those states.

In a series of about two dozen tweets since Election Day, Zeldin has questioned the election results, calling changes to election procedures in battleground states “unconstitutional irregularities.” He has tweeted frequently — most recently two days ago — about the need to protect “ballot integrity,” criticizing, as Trump has, mail-in voting.

Some states, including New York, changed voting procedures in 2020 to allow, as Zeldin put it in his tweet on Monday, “no excuse mail in balloting” because of the pandemic. Some of those changes, including New York’s, were made by executive orders during the state of emergency declared in the states in response to the coronavirus pandemic.

Zeldin and others object to changes made to voting procedures established by state legislature — by what they characterize “executive fiat” and settlements of “friendly lawsuits” — as unconstitutional.

On Jan. 2, Zeldin tweeted: “Some insist everything President Trump & his supporters claim about the 2020 election is ‘evidence free’. That lie may be easy to rattle off, but it’s still a massive, destructive lie that will haunt them on Jan 6th & far into the future.”

On the afternoon of Jan. 6, the lawyers’ complaint states, Zeldin announced on Twitter that he would formally object to the Electoral College’s determination.” By making that announcement, according to the complaint, “Zeldin not only engaged in dishonest conduct, but also contributed to the incitement of the Jan. 6 insurrection.”

On the House floor on Jan. 6, Zeldin spoke in support of objections to the election results in Arizona in a statement he labeled in a Jan. 6 tweet was made “in defense of the republic.” He voted to sustain objections to the election results in both Arizona and Pennsylvania.

His statement and both votes came on Jan. 6 after a large mob of Trump supporters violently attacked the Capitol while Congress was in a joint session to certify the Electoral College, as required by the Constitution.

The mob stormed the Capitol following a 90-minute “Save America” rally in the Ellipse park at which Trump aired his grievances about the election he claimed was stolen by Democrats and “weak” Republicans. Trump urged the crowd to go to the Capitol, where Congress was beginning to count and certify the Electoral College ballots.

The Trump mob stormed the Capitol, breaching barricades, overwhelming Capitol Police, breaking doors and windows and entering the building as lawmakers met in both chambers. The sessions were cut short as the mob could be heard in the corridors. The lawmakers were evacuated and staff members and reporters barricaded themselves in offices.

The chaotic scenes were broadcast live on television and circulated on social media, capturing Trump supporters chanting “Hang Mike Pence” — someone had erected a gallows outside the Capitol during the riot — and searching for House Speaker Nancy Pelosi and other Democrats. Members of the mob broke into offices and into both chambers of Congress.

Zeldin issued a statement that afternoon urging “everyone to please cooperate with the Capitol Police who need to gain control of this situation immediately.” He said the violence being witnessed by America “should never be the scene at the US Capitol” and said there should be “ZERO tolerance for violence in any form!”

The riots resulted in the deaths of five people, including a uniformed Capitol Police officer who was beaten to death by the mob. Scores of other officers were injured, some seriously.

Seven hours later, after the building was secured and the crowd was dispersed, Congress resumed its constitutionally mandated count. Some shaken Republican senators withdrew their support for objections after the riot, which left only two objections supported by senators to be brought to the floor of each chamber for a vote. (Without support in the Senate, there is no vote in either chamber.) A planned objection to Georgia’s results was withdrawn, and no senators signed onto the House’s objection to results in Michigan and Nevada.

“Even after the bloodshed and terror at the Capitol, Rep. Zeldin again asserted his baseless objections to the election results,” the lawyers complaint to the grievance committee states.

“He took to the floor of the House of Representatives, and in a speech riddled with misinformation and misrepresentations, challenged the results of the Arizona and Pennsylvania elections…” the complaint states.“Disregarding the will of the people, Rep. Zeldin sought to disenfranchise tens of millions of voters, which is particularly egregious conduct for an attorney who has been elected to high office and sworn an oath to uphold the constitution,

In a brief interview Monday following a news conference he held in Manorville, Zeldin said he had not heard anything about the complaint and could not comment on it.

Asked if he was willing to state that the 2020 presidential election was a free and fair election and constitutionally valid, Zeldin replied, “This was a free election. And we did go through the entire constitutional process.” That process includes a certification of the Electoral College vote, he said.

“After every Republican presidential win over the last generation, there have been objections that have been followed,” Zeldin said.

“At the end of that constitutional process, the first thing I did was put out a statement that says, regardless of whether you supported President Biden or or President Trump, regardless of your the opinions and passions everyone has, once Congress certifies the results, it’s over,” Zeldin said.

On the evening of Jan. 7, Zeldin issued a statement acknowledging Biden’s election.

“Moving forward, there will be continued debate and there will be disagreement, but out of that must be a healthy, guarded and even thriving republic,” he said in the Jan. 7 statement. “Right now, I am not going to dwell on any doubt, but to recommit to working towards a vigorous defense of lady liberty at all costs, and the pursuit of unity whenever possible,” he said.

The congressman reiterated Monday he still has “an issue with” changes made by executive order or otherwise to the electoral process established by state legislatures.

The lawyers’ complaint was filed with the court in Albany, where Zeldin was admitted to the New York bar in January 2004. The Shirley resident earned his law degree at Albany Law School in 2003.

The lawyers in the complaint urge the New York bar to “send a powerful message to the public that the legal profession is committed to the defense of our democratic institutions and will not tolerate the conduct of attorneys who seek to subvert the will of the people, undermine our elections, and recklessly contribute to the incitement of violence.”

RiverheadLOCAL provided Zeldin’s office with a copy of the complaint Tuesday morning, seeking additional comment from the congressman. Tuesday night, Zeldin spokesperson Katie Vincentz dismissed the complaint as a partisan attack.

“Nearly every single one of these attorneys is a registered Democrat and half have donated to Congressman Zeldin’s opponents,” Vincentz said in an email. “One even ran as a Democrat in the Town of Brookhaven and another was chairman of the East Hampton Town Democratic Committee for almost 20 years,” she said.

“The eagerness of these partisan Democrats to further divide our community and country is despicable,” Vincentz wrote.

She reiterated Zeldin’s statements Monday that Democrats have raised objections to Electoral College vote counts after the election of Republican presidents.

“It’s an incredible double standard that if Republicans object as well on the same date in the same place as part of the same process, then that makes them all seditious traitors,” Vincentz said.

“Anyone who wants to call out a Congressional Republican for supporting an objection on January 6th needs to put up their past statements calling out every Congressional Democrat who objected in the past,” she said. “If those public calls don’t exist, their calls now are just hyper-partisan and hypocritical nonsense.”

Editor’s note: This article was amended post-publication to add further comment from Rep. Lee Zeldin’s office provided Tuesday night.

The Trumpist from Suffolk County

David Posnett — Thu, 08 Mar 2018 13:44:49 +0000

Perry Gershon, Democratic Candidate for New York’s First Congressional District

Published by Medium.com March 7th 2018

Traveling across Suffolk County, I’ve seen how disappointed and frustrated people are with Congressman Lee Zeldin. I’m hearing how they want someone in Washington who fights to grow the middle class on Long Island, make our communities safer, and ensure everyone has access to affordable health care — someone who fights for what’s right. But that’s not what Rep. Zeldin is focused on. He’s backing an agenda that’s out of touch with of Suffolk county, beyond that of even a “regular” Republican representative.

Zeldin’s 9% grade from the League of Conservation Voters, his opposition to consumer protection, and his radical anti-choice views are not representative of our community. But Zeldin’s frightening extremism, however, is on display in his politicized attacks on the Mueller Investigation, the DOJ, and FBI, and his unconditional alliance with the NRA. And he bears responsibility for the Trump tax plan and its destructive effects on Long Islanders. Luckily, we can defeat him in November.

The Mueller Probe:

Zeldin has led the effort to delegitimize the country’s law enforcement — simply because Mueller’s investigation is going after the truth. Zeldin has joined with Rep. Devin Nunes leading the criticism of the FISA warrant process and even holds the absurd position that we need a special counsel to investigate the special counsel. Mueller’s probe is doing the job and has already led to 22 indictments against Russians and other conspirators for meddling in the US elections in 2016. And the investigation is nowhere close to finished!

In the face of these indictments, Zeldin has not called for congressional efforts to combat the threat Russia poses to our elections. He has not taken any affirmative steps to protect the 2018 and future elections. And he fails to even recognize that Russian hacking was an effort to discredit US elections and played a role in Donald Trump’s victory. Simply put, our Congressman has refused to acknowledge that our democracy is under attack because he is putting Party over Country.

Zeldin’s crusade culminated on Feb. 28 when he issued a formal letter to Attorney General Sessions requesting appointment of a new Special Counsel to investigate the FBI and DOJ. Co-signed by 12 other far-right congressmen, the letter was so extreme that even Devin Nunes, himself, did not co-sign it. A week later, he even claimed that: “Donald Trump & family being investigated for winning election w/no evidence they committed any crime to win the election. Sick, crazy & wrong!” Seriously? Zeldin has become a conspiracy theorist, using the words “transparency” and “accountability” to describe an effort to politicize law enforcement and undermine the rule of law in the defense of a potentially corrupt president.

The Tax Plan:

Republicans in Congress pushed a tax plan that’s good for corporations and special interests and devastating for Long Island families. Their plan benefits the richest one percent of Americans, at the expense of Brookhaven, Smithtown, Westhampton, and all our other communities. The tax plan eliminated the State and Local Tax deduction(SALT), which will hit Long Islanders hard by raising taxes and causing property values to decline.

Zeldin’s claim that he stood up for Long Island by opposing the final version of the tax plan simply is not good enough. He voted to empower Paul Ryan, who, in his role as Speaker of the House, led the tax fight. He hasdoing nothing to restore the SALT deduction that Suffolk County relies on. He has repeatedly supported and defended Donald Trump, who has prided himself on the bill. Worse yet, Zeldin stated that his objection to the bill was not its elimination of SALT, but to the limits being imposed all at once. Zeldin even claimed he would fully support a phase in of all of the injurious provisions if they occurred over 3–4 years. It’s clear that for Zeldin, it is ideology first and Long Island last.

Gun Control and the NRA:

Zeldin’s reaction to the Parkland shooting is shameful. He has resisted all calls for common sense gun safety laws, has refused to back a ban on weapons of war, and even thinks its smart to arm teachers.

Unfortunately, this comes as no surprise. He is not only proud of his A rating from the NRA but has taken more money from the NRA than any other congressperson from New York. He has a long history of supporting fringe positions that threaten New York residents’ safety. In 2015, he co-sponsored a bill that allows the transportation of firearms in locked containers across state lines, effectively facilitating gun-trafficking into New York State. Just last year, he co-sponsored another bill that would allow gun owners to carry concealed weapons across state lines. Both bills would essentially render New York State’s gun safety laws null and void.

We deserve a Congressman who will protect the Mueller probe and support our law enforcement agencies, do everything in his or her power to restore the full deductibility of state and local income taxes, and fight for effective and commonsense gun safety. Long Islanders are fed up with Donald Trump and his enablers in Congress like Rep. Zeldin. People are looking for bold ideas and real solutions. It’s time Long Island had a strong voice to fight for high-paying jobs, affordable health care, and safer communities. If we’re going to change Washington, we’ve got to change the people we send there. Come November, let’s fight, together, and make sure Rep. Zeldin doesn’t have another term in Congress.

Perry Gershon

Trump backs permanent snooping powers he once criticized as abusive

David Posnett — Tue, 13 Jun 2017 14:37:11 +0000

We Have Good Reasons to Be Concerned About the Impact of Section 702 on the Criminal Justice System

Posted on Just Security

By Sarah St.Vincent
Wednesday, June 7, 2017

In a recent analysis for Just Security, I explored some concerns about how warrantless surveillance under Section 702 of the Foreign Intelligence Surveillance Act (“FISA”) may be undermining the U.S. criminal justice system. While many of those concerns would apply to the government’s potential reliance on warrantless Section 702 data as part of any criminal probe, I expressed a worry that such data might conceivably be making its way into investigations of relatively low-level suspected offenses (for example, suspected drug-related violations).

Partly in reply to Dean Asha Rangappa’s letter to the editor, I would like to expand on a few of the problematic practices I had mentioned—all of which should be at the forefront of legislators’ minds during the upcoming debate about whether Section 702 should be renewed before its scheduled sunset at the end of this year. These include “incidental”collection, warrantless querying of Section 702 data by the FBI, and parallel construction.

“Incidental” collection: A “subset” can still be a large pool of private information—including on U.S. persons

Under the law, the executive branch must “target” non-U.S. persons outside the United States when it carries out warrantless monitoring of Internet or telephone communications under Section 702. These targets need not be suspected of any wrongdoing: as long as “a significant purpose” of the surveillance is to obtain “foreign intelligence information,” a term FISA defines broadly, any non-U.S. person outside the country’s borders is fair game. In 2016, the government had an estimated 106,469 such targets—a number that had steadily increased for several years. Foreign Intelligence Surveillance Court (“FISC”) amicus, Amy Jeffress, who served as an impartial adviser, has confirmed that “not all Section 702 targets are international terrorists,” and the executive branch has yet to explain who else might be singled out. Then-chair of the Privacy and Civil Liberties Oversight Board (“PCLOB”) David Medine told Congress in 2016 that a Section 702 target could be “anyone with foreign intelligence value,” including, for example, “a completely innocent businessman.”

While this monitoring has considerable human rights implications for the foreigners who are targeted, it is likely that the dragnet is also capturing large numbers of U.S. persons’ communications. The government likes to describe this seizure of Americans’ private correspondence under Section 702 as “incidental.” However, as PCLOB has pointed out, “[s]uch ‘incidental’ collection … is not accidental, nor is it inadvertent.” FISA requires that Section 702 surveillance be “reasonably designed” to minimize such collection, but it happens anyway. The President’s Review Group on Intelligence and Communications Technologies even suggested in 2013 that the executive branch may have an incentive “to use section 702 in an effort to gather evidence against United States persons in a way that would circumvent the underlying values of both FISA and the Fourth Amendment.”

This pool of warrantless Section 702 information on U.S. persons is probably sizeable. Medine testified explicitly that “the government is collecting large quantities of Americans’ communications” under the law. In her FISC amicus brief, Jeffress referred to “a potentially very large … scope of incidental collection of communications between lawful targets and U.S. persons that are not the type of communications Section 702 was designed to collect”—including communications with “no foreign intelligence value.” These statements indicate that while it is probably literally true that U.S.-person information is a “subset” of the data gathered under Section 702, this subset may be substantial and may include such troublingly private content as—in Medine’s words—“family photographs, love letters, personal financial matters, discussions of physical and mental health, and political and religious exchanges.”

Therefore, I do not share Dean Rangappa’s confidence that warrantless Section 702 data is unlikely to include information on “[w]holly domestic” U.S. crimes—let alone crimes (such as drug-related offenses) that the government may regard as having some kind of foreign nexus, however remote. The fact is that when a government grabs untold reams of private communications belonging to thousands or millions of people, there is simply no knowing what kind of information might be in there, available to be searched.

Once the National Security Agency (“NSA”) has obtained data through Section 702, including on U.S. persons, it may distribute or report on that data in several ways that may ultimately have implications for criminal cases—including by sharing data it “reasonably believe[s] to contain evidence of a crime” with the FBI or other law enforcement bodies. While it has not been publicly confirmed that such knowing NSA sharing of Section 702 data believed to contain evidence of a crime is feeding into non-terrorism prosecutions, in my view the risk is real.

FBI querying: “Fishing” in the pool is probably not so unusual

The current Section 702 regime allows the FBI to obtain unknown amounts of raw Section 702 data without a warrant. PCLOB has said it does not obtain all such data, but the actual amount remains unclear; the Office of the Director of National Intelligence’s statementthree years ago that the data constitutes “a small percentage of NSA’s total Section 702 collection” did little to illuminate this.

The Bureau then has the power to carry out warrantless searches—or “queries”—of these communications, a practice that has prompted strong expressions of concern from independent evaluators. Medine testified that the FBI “routinely looks into 702 databases, and not just in investigations, but even in assessments where the FBI has absolutely no suspicion of wrongdoing … they’re just sort of entitled to poke around and see if something is going on.” Jeffress, too, flagged that the FISC has described these FBI queries as “routine and encouraged,” that the Bureau may conduct them even at the pre-investigation “assessment” stage, and that “there is no requirement that the matter be a serious one, nor that it have any relation to national security.”

It is difficult to reconcile the claim that it is “extremely unlikely” that FBI agents would “fish” in Section 702 data for evidence of crimes with Medine’s and Jeffress’ statements, which suggest the Bureau has the power to do just that. As Dean Rangappa emphasizes, FBI procedures require that “[t]o the extent reasonably feasible,” queries of raw Section 702 data must be designed to “find and extract foreign intelligence information or evidence of a crime.” That latter phrase, however, essentially captures the problem: Agents may carry out warrantless searches of warrantlessly seized communications in order to find something the government could use to put someone in jail.

A recent FISC opinion indicates that the executive branch has reported only one instance to the Court in which the FBI, using a query that was not designed to find “foreign intelligence information,” found Section 702 information on an American. As highly unsympathetic as that case is (it involved an e-mail containing a description of child abuse), the fact that the government did use Section 702 to find such information without a warrant should give us all pause. Footnote 53 in the opinion also gives rise to concern that the FBI’s self-reporting processes for such cases may not be fully reliable—and one wonders how expansive queries that are seeking “foreign intelligence information,” which would not even result in such reporting, may be.

The FBI’s adoption of internal procedures that, in some ways, regulate access to this pool of warrantlessly collected data (for example, by requiring agents to have authorization before they can view Section 702 data they have found) does not take these concerns off the table. First, as Chief Justice Roberts observed in Riley v. California, law enforcement’s development of internal rules to assuage concerns about warrantless searches is “[p]robably a good idea, but the Founders did not fight a revolution to gain the right to government agency protocols.” In other words, even the best and strictest FBI procedures cannot undo any constitutional or other violations inherent in these programs.

Second, the FISC expressed a stark concern in its recent opinion about the FBI’s “apparent disregard” of rules the FISC had approved, and recorded at least three serious episodes in which the Bureau improperly provided access to raw Section 702 data to its own employees or to groups of private contractors. The Court also raised fears that “the FBI may be engaging in similar disclosures of raw Section 702 information that have not been reported.”

Parallel construction means the use of this data in criminal investigations may never come to light

If the NSA, FBI, or other entities are employing warrantless Section 702 data in non-terrorism criminal investigations, this practice might never come to light. Historical documents suggest that the government may have devoted a significant amount of time over the years to pondering the question of how to use intelligence information in investigations without disclosing this fact at trial. Among other things, a declassified document from 1983 shows the executive branch seeming to embrace the idea of deliberately “build[ing] a firebreak” in evidentiary trails by encouraging law enforcement to develop independent evidence in a way that would prevent defendants from discovering that information originally came from intelligence activities. Thirty years later, Reuters reported that the DEA was engaging in just such an activity, known as “parallel construction,” to avoid disclosing its use of tips from intelligence.

The government’s decidedly belated notice of Section 702 surveillance in at least a few known criminal cases provide reason to be concerned about the use of parallel construction to conceal such monitoring; it is also worrying that even defense attorneys who fight determinedly to find out if Section 702 or other intelligence monitoring was employed in their clients’ cases may face stiff resistance. (For civil rights defenders, it is worth reading the hearing transcript and related motion in an unusual 2013 Texas drug case to see some of the challenges confronting such attorneys.) It also seems possible, as at least one declassified record as well as the Reuters article suggest, that the prosecution could simply drop cases if defendants appeared likely to succeed in forcing the disclosure of Section 702 surveillance.

* * *

Particularly since the discussion above draws on some materials that had not yet been released at the time of our original exchange, I hope Dean Rangappa will take this as an invitation to a continuing dialogue.

This analysis of how Section 702 data may be quietly making its way into criminal investigations is one aspect of a larger story: I am just as concerned about information the U.S. has warrantlessly obtained under Executive Order 12333 or intelligence-sharing agreements with foreign governments and hope to write further on those topics in the future. However, Section 702 presents an immediate opportunity to restore civil liberties in this area—something Congress should not pass up.

Image: Getty/Chip Somodevilla

Tags: Congress, FBI, FISA, FISC, NSA, Section 702

ABOUT THE AUTHOR

Sarah St.Vincent is a researcher and advocate on national security, surveillance, and domestic law enforcement for the US Program at Human Rights Watch. You can follow her on Twitter (@SarahStV_HRW)