Dan Gelber

FORMER Miami Beach @MayorDanGelber: federal prosecutor, State Senator/House Democratic Leader, U.S. Senate Staffer. Attorney at Gelber Schachter & Greenberg

[Dan Gelber @DanGelber]

Heck of a showing by GSG. Now let's go #USMNT !

[Dan Gelber @DanGelber]

What a terrible idea.
“The organizing principle for this map seems to be based more on hubris than Florida’s constitution,” said Dan Gelber, a former Democratic state lawmaker and a member of the legal team that successfully tossed a gerrymandered congressional map in 2015. “The governor so badly wants to impress 2028 national voters that he’s fully ignored his own voters who overwhelmingly supported non-partisan maps.”
https://t.co/90Hfi6gXxa

[Dan Gelber @DanGelber]

Must be Friday...

[Dan Gelber @DanGelber]

Boo Hoo! #FinsUp #finsnation #neverforgetsnowplowgame

[Dan Gelber @DanGelber]

Shameless text to my kids....

[Dan Gelber @DanGelber]

The questions about Ladd McConkey (Los Angeles Chargers) or Jauan Jennings (San Francisco 49ers) provided a modicum of normality. But Max stayed in that dark bathroom into the night, quietly texting for hours, wondering who had been injured or killed. Whether they were friends. Whether the gunman was outside his door. It was anything but normal.
My article: https://t.co/5eWebLJ3gd

[Dan Gelber @DanGelber]

At first blush, the federal response to the Minneapolis ICE agent shooting already appears to be a master class in what not to do after a police-involved homicide. Publicly prejudging the facts before they are known and refusing to coordinate in any meaningful way with local authorities, are obvious missteps. More troubling, however, is the appearance that these choices may functionally foreclose any independent review at all—an outcome that should concern Americans across the political spectrum who expect a justice system capable of fairly evaluating police conduct.

[Daily Business Review @dbreview]

From Dan Gelber of Gelber Schachter & Greenberg: "If premature commentary is disqualifying, it is difficult to see why federal authorities would be better positioned to conduct an impartial review."

🔗 https://t.co/Kg75kYGUSy

[Dan Gelber @DanGelber]

"Would Americans be so accepting if, instead of observing the detached remoteness of a missile from the clouds, we watched our servicemen board the vessels and simply execute everyone on board without asking a single question?"
Here is my recent oped discussing the summary execution of due process.
https://t.co/x2SLkh4YWE

[Dan Gelber @DanGelber]

My Dad was born the year before women received the right to vote. He served in a world war, was a prosecutor, professor, judge and mayor, a loving son and husband, and simply the best dad any kid could hope for. Miss you Dad and Happy Birthday. (at 4:00 he left his final and unmistakably Seymour farewell.
https://t.co/XwAzAwIvo3

[Dan Gelber @DanGelber]

The idea of commencing a mid-decade congressional redistricting in order to squeeze more Republican seats out of a state that is already considered the second most gerrymandered in the Nation is wrongheaded. It also runs afoul of Florida’s Constitution which expressly prohibits drawing districts to favor or disfavor a political party. One of our firm’s first clients was FairDistricts Florida, the group (led by the remarkable attorney Ellen Freidin) that crafted and stewarded those amendments so magnificently that 63% of the voters in 2010 supported their inclusion in our state’s Constitution. Our firm successfully defended the amendments before the Florida Supreme Court and, years later, were part of the legal team that represented the LOWV and others when we sued the state legislature and governor over their submitted partisan districts. Back then we fought tooth and nail to prove the partisan intent, and the Supreme Court agreed with us rejecting the legislature/governor’s gerrymandered maps. This time, given the President’s stated purpose of finding more Republican seats it won’t be too difficult to prove why this is being done. I hope the Governor and Legislature rethink this course of action as Floridians of all political stripes oppose partisan gerrymandering. Voters want to choose their congressmen, and not have congressmen choose their voters.
I joined Jim Defede and others this weekend to discuss this terrible idea.
https://t.co/K5IuWk2wU8

[Dan Gelber @DanGelber]

Law school exam question: The controlling shareholder of a national media company wants to sell her company (which will likely net her billions) in a transaction that requires FCC approval. Simultaneously, the President has sued the same media company because he felt that one of the shows edited an on-air interview of his political opponent in a way that was unfair. Most legal experts believe the lawsuit is without merit and even encroaches on important journalistic freedoms. What evidence would need to be developed to prove that such a settlement could violate federal corruption statutes? What is the most likely offense (and defenses) that might fit these facts?

First, let’s look at bribery. The gravamen of a bribery is the offering of something of value with intent to influence an official act (the famous “quid pro quo). Absent evidence that someone said “settle the lawsuit and we’ll approve your merger”, it’s a tough road. Even though both events (the lawsuit and the merger) are occurring simultaneously, parallel play (what my kids use to do when they were toddlers) is not sufficient; nor is settling the lawsuit with the hopes that the President’s appointees on the FCC hear about it and reward the windfall.

The same challenges apply to a Hobbs Act claim of extortion under color of official right, or in simpler vernacular, a shake down. In this instance, the evidence would need to show that the President essentially threatened to deny the merger unless the lawsuit was settled to his liking. Now if such a demand occurred, then he would satisfy the Hobbs Act requirements (and likely the bribery elements as well). I have had more than a few clients complain to me that they were victimized by a public official making demands of them in a public procurement that felt like a shakedown. I always advise them, that every shakedown is perilously close to a bribe since, ultimately, the victim of the shakedown gets the benefit of the contract.

For the “Honest Services Fraud” fanboys out there, not sure it offers anything better than the two offenses already referenced. Although it’s been narrowed recently by appellate decisions, it still works (see U.S. v Silver) so long as there is evidence proximate to a quid pro quo.

None of these defenses are present if there is any evidence that the President or his representatives tethered the two events to each other.

Now, the easiest federal felony to prove, and one that should cause the media company folks some measure of concern, would be the prohibition on offering/receiving an illegal gratuity. (18 USC 201c) which is also a felony with a 2-year maximum jail sentence. I prosecuted and defended gratuity cases and they are so much easier to prove than their big brother bribery because no quid pro quo is required. The “something of value” is simply offered “for or because” of an official act, meaning more as a gesture of goodwill perhaps intended to curry favor with the president and his minions who are deciding on the merger. It’s still not a clear path. The two events must have some relationship other than the coincidence of time.

While a gratuity is easier to prove, there are defenses. The media company could argue the payment was not to influence the merger approval but to avoid protracted and costly litigation. Ultimately, the prosecution would likely turn on whether a jury was able to determine the dominant intent of the settlement when there are mixed motives. This bears some similarity to the defense in the famous 2011 prosecution of presidential candidate John Edwards who orchestrated payments to cover up an extra marital affair. Was the money used to avoid personal embarrassment (not illegal) or to allow his campaign to avoid harmful press (illegal). The question was what was the “dominant intent” of the act (the donation). The jury acquitted.

Proving intent in this case might not be so hard given all that has been said by the parties. If a single person in the room says we settled to help out our merger chances…look out. Or if there is evidence that the controlling shareholder covertly influenced the decision, that might also reveal consciousness of guilt.

For extra credit: How does last year’s Trump v U.S. decision affording a president immunity for core official acts, impact the liability of the folks seeking and approving the lawsuit settlement. Can you illegally bribe or give a forbidden gratuity to someone who is immunized? I think the clear answer is yes because while the President’s status might arguably provide a bar to prosecuting him, it doesn’t make the offense less of a crime for those receiving the illicit benefit of the bribe/gratuity/extortion. Whether the FCC officials – as surrogates of the President – are clothed with his immunity, is an open question worthy of another too-long post
Grade?

[Dan Gelber @DanGelber]

Posse Comitatus - crime scene or war zone or just terrible idea?
The use of the National Guard and, potentially, the Marines to respond to California domestic unrest over the objection of the state’s Governor implicates a long-standing prohibition against giving our federal military a domestic law enforcement mission. The 150-year old Posse Comitatus Act (18 USC 1835) codified that prohibition by outlawing the use of federal forces in local law enforcement. The concern is entirely understandable. The U.S. military are not typically trained or practiced in protecting the civil liberties enshrined in our Constitution, namely search & seizure, arrest, interrogation and domestic surveillance, so we should rarely ever give them the responsibility to dispense duties that implicate those liberties. What are their rules of engagement? Have they been trained to arrest or in the use of force in a law enforcement context? Do they know the Miranda warnings? That’s why the exception to the PCA (the Insurrection Act 10 USC 251) is so rarely used. In the early 1990’s, I was the staff director/chief counsel of the U.S. Senate’s Permanent Subcommittee on Investigations. In the wake of the 1995 Murrah Building bombing, we issued multiple reports reviewing these very issues analyzing the intersection of a military versus a law enforcement mission. Our shorthand question was “is it a crime scene or a war scene.” Even a massive explosion that killed 168 people, like the Murrah bombing, was strictly a job for local and federal police with the Guard, at the request of the governor, given only traditional search and recovery type functions.

Because the Guard this weekend was activated by President Trump and not the California Governor, their use is governed by the PCA and whether it legally fits within then narrowly drawn Insurrection Act exceptions will likely soon be decided by the Supreme Court. But the wisdom of calling in the Guard or even the Marines over the objection of the Governor is not a close call as they will only inflame an already volatile situation. I remember 55 years ago when our Nation watched in horror when the National Guard was called to quell student protests at Kent State. While they were summoned by the Governor in that instance, the tragic outcome is impossible to forget. Guardsman, untrained in use of force, fired 67 rounds over 13 seconds into a crowd of 2000 students. Four young people died and nine were wounded. While the disorder in L.A. is real, there is no reason to believe a modern big-city police force the size of the LAPD lacks the resources to take appropriate action. And certainly, they are better equipped to treat the job as a police function rather than a military operation.

[Dan Gelber @DanGelber]

Inter Arma Silent Leges.
"Habeas corpus is a constitutional right that the president has to be able to remove people from this country," It’s hard to untangle these words to give Secretary Noem the benefit of the doubt as to what she meant to say, especially in light of the efforts by her Administration to fully torpedo this constitutional right of the people. But if you’re interested in a deeper dive into the Great Writ, I recommend “All the Laws but One,” a short read authored by former Chief Justice William Rehnquist. It’s an historical account of habeas in wartime, especially during the Civil War and WW II. I read it in the days after 9-11, when as a Florida legislator our body was poised to adopt measures that challenged so many of the civil liberties we take for granted. I shared copies of the book with the Republican leadership who started to quote it regularly at security meetings. Ultimately, an unlikely alliance between the liberals and the libertarians prevented adoption of some of the more overreaching measures. If there is one point applicable today that can be derived from the history of habeas in wartime, it’s that the threat to security needs to be real and pressing, and even then curtailed. It takes a true invasion (like WW II) or intense conflict (like the Civil War) to even begin the balancing test of what rights are to be suspended. Clearly, we have nothing close to that today to justify suspension of the Writ. The bluster of a President and his entourage fall far short of any test of history.

[Dan Gelber @DanGelber]

#hoyalawya Child #1 has launched! Sophie graduated #GeorgetownLaw this weekend. Lots of joy and tears. She’ll be working at #DemocracyForward where she’ll be fighting to protect our rights and preserve the rule of law. And, yes, they played H-o-t-t-o-g-o.

[Dan Gelber @DanGelber]

It is our obligation as Americans and as attorneys to stand up to pernicious government overreach as neutrality only empowers the transgressor. As Judge Howell noted in her Order, “[o]nly when lawyers make the choice to challenge rather than back down when confronted with government action raising non-trivial constitutional issues can a case be brought to court for judicial review of the legal merits, as was done in this case by plaintiff Perkins Coie LLP, plaintiff’s counsel Williams & Connolly, and the lawyers, firms, organizations, and individuals who submitted amicus briefs in this case.”

Our firm was proud to stand with the many attorneys, law firms, academics and other organizations that refused to bend the knee.

https://t.co/3ao8zxrbfz

[Dan Gelber @DanGelber]

So, let me get this straight, American consumers will be paying artificially inflated prices for goods, so that this Administration can pay for tax cuts to our wealthiest. Welcome to the birth of a new economic model… #Suckernomics.

[Dan Gelber @DanGelber]

Preparing for second night. Max has come a long way, from starting as an entry charoset-chopper all the way to table settings....

[Dan Gelber @DanGelber]

I guess one view could be that it was a brilliant plan to PRETEND to be fully uninformed of basic market principles, completely indifferent to the devastating impact it had on everyday Americans, uncaring of the destructive effect it would have on our standing in the world, and only willing to retreat when faced with obvious and immense economic destruction that even your most ardent supporters spoke out against (thank you, by the way). Of course, there is another, more obvious, interpretation. Maybe he wasn’t pretending.

[Dan Gelber @DanGelber]

Bill, I appreciate the utility of fawning over the emperor’s new clothes, but really?

[Bill Ackman @BillAckman]

This was brilliantly executed by @realDonaldTrump. Textbook, Art of the Deal.