Tag Archives: Jay Gaskill

Former public defender on FBI not prosecuting Hillary Clinton; 54% of Americans disagree

Jay B. Gaskill is an attorney; former Public Defender of Alameda County, CA (1989-1999); former Democrat and now a political Independent. He is also my friend and one of the smartest and fairest-minded men I know.

In the following essay, Gaskill employs his legal knowledge and experience to analyze FBI Director James Comey’s decision not to seek a criminal indictment against Hillary Clinton, notwithstanding the FBI’s findings that she is at fault by using a private, unsecured email server when she was secretary of state. (My comments are in italics, colored teal.)


Analysis by Jay B Gaskill

Hillary Clinton has dodged a legal bullet. FBI Director James B. Comey is recommending “no prosecution” following Secretary Clinton’s email scandal investigation. By all accounts, Director Comey is a straight shooter. Yet for many, Tuesday’s no-prosecution announcement was a disappointment.

After a detailed recitation of the evidence of the Top Secret and other highly sensitive resident on Secretary Clinton’s private, unsecured email servers and devices, Comey’s “no-go” decision was a puzzle. In my opinion, the evidence that Director Comey summarized is probable cause that Secretary Clinton crossed the line into a criminal security breach. Yet not every probable cause case is charged. Reasonable prosecutors can and do differ on such charging decisions.

Why did Comey cut Hillary Clinton a break?

There were a large number of secret and top secret documents kept in hackable, non-secure private servers under her control. And, yes, Clinton and her staff were “extremely careless” in doing this – these are Director Comey’s words.

Comey revealed that “52 e-mail chains have been determined … to contain classified information at the time they were sent or received. Eight of those chains contained information that was Top Secret at the time they were sent; 36 chains contained Secret information at the time; and eight contained Confidential information.”

And it was Director Comey’s judgement that “any reasonable person in Secretary Clinton’s position … should have known that an unclassified system was no place for that conversation.”

He put it bluntly: “None of these e-mails should have been on any kind of unclassified system,

… these e-mails were housed on unclassified personal servers not even supported by full-time security staff, like those found at Departments and Agencies of the U.S. Government—or even with a commercial service like Gmail.”

Was Secretary Clinton’s unsecured email system hacked?

Director Comey pointed out that “…we would be unlikely to see … direct evidence” of that. Then he added that “Secretary Clinton’s use of a personal e-mail domain was … readily apparent. She also used her personal e-mail extensively while outside the United States, including sending and receiving work-related e-mails in the territory of sophisticated adversaries.”

My translation: She visited more than 60 countries including Korea, China, Egypt, Iraq, Russia, Pakistan, Saudi Arabia, among other sensitive spots, all while using unsecured email to and from her wide-open private server.   Of course her emails were hacked. But the United States’ security community has obviously decided not to confirm that Hillary’s server was hacked, or even to publically talk about the issue. I can’t blame them. And I suspect that Director Comey was not read in on the full scope of the damage that Clinton’s security breaches may have caused.

Director Comey bluntly reminded everyone that “it is a felony to mishandle classified information either intentionally or in a grossly negligent way.”

So… Hillary was spared because of the difference between “extremely careless” and “grossly negligent?”

…A fine line indeed. That difference is in the eyes of the beholder. It might appear differently to a Grand Jury member, than to a trial juror.

Why did Director Comey gave Hillary Clinton a pass? Let me count the reasons:

A political trial of this magnitude would be messy and divisive. As a practical matter, it could not take place before the presidential inauguration in 2017. Remember O J Simpson? The word “circus” comes to mind. How difficult would it be to find twelve impartial jurors for Hillary’s case? Note that “grossly negligent” is essentially a subjective test, the application of which allows jurors very wide discretion.

Moreover, the prosecution would be complicated because of the shifting roles and responsibilities of Clinton’s staff. I can readily imagine the defense using the computer-challenged grandmother defense. …And I can readily imagine one more loyal staff members falling on their swords for Hillary.

In other words, Comey’s reasons were political/practical, instead of legal or in the interest of justice. -Dr. Eowyn

The bottom line: Secretary Clinton was not exonerated. Her security breach investigation was an authentic, full-on professional FBI investigation, not a political stunt. Had any lesser employee done the same thing, that employee would have lost his or her security clearance and would have been terminated.

The bottom line as I see it: Clinton was not punished, whereas “any lesser employee” who did what she did “would have been terminated” and prosecuted.

For that matter, less than a year ago, the FBI did exactly that to Bryan H. Nishimura, a Naval reservist deployed as a military engineer in Afghanistan (2007-2008). Nishimura had access to classified briefings and digital records that could only be retained and viewed on authorized government computers. But he downloaded and stored the classified materials on his personal, unclassified electronic devices and storage media. Nishimura pleaded guilty to precisely what the FBI concluded Hillary had done — “unauthorized removal and retention of classified materials” without malicious intent — and was sentenced to two years of probation, a $7,500 fine, the surrendering of any currently held security clearance and to never again seek such a clearance. -Dr. Eowyn

This is the moment where I and millions of other patriotic Americans devoutly wish that we had better choices this November. I think of Teddy Roosevelt, Franklin Roosevelt, Harry Truman, Dwight Eisenhower, John Kennedy, and Ronald Reagan, among others. Neither party’s presumptive candidate is in the same league with American history’s solid, admirable presidents.

The settle-for election continues…


Hillary for Prison 2016

Meanwhile, most U.S. voters disagree with Comey not prosecuting Hillary.

A Rasmussen Reports national telephone and online survey conducted on the evening of July 5, 2016, found that:

  • A majority of “likely U.S. voters” — 54% — disagree with the FBI, and believe instead that Hillary should have been indicted.
  • Only 37% agree with the FBI’s decision not to indict; 10% are undecided.
  • Opinions on this are clearly partisan:
    • Among Democrats, 64% agree with the FBI decision; only 25% disagree.
    • In contrast, 79% of Republicans and 63% of Independents disagree.
  • 33% of all voters say if Hillary were indicted, a fair trial would not have been possible. 46% think it would have been possible for her to get a fair trial; 21% are not sure.

FBI Director James Comey has been summoned to Capitol Hill to explain why his agency is not recommending charges be filed against Hillary Clinton in the email scandal. Expect fireworks, but I predict that in the end, Congress will do nothing.

H/t FOTM‘s Ken Russell



Why are they so afraid of Donald Trump?

The GOP Establishment has gone beyond issuing death threats via “consultants” and “jokes” against Donald Trump. See:

The GOP is now bringing out the big guns:

(1) Mitt Romney

2012 Republican presidential nominee Mitt Romney has now come out publicly against Trump, although Romney went out of his way to secure Trump’s endorsement in 2012.

At the Washington Ideas Forum on March 2, Romney said he doesn’t think the Republican nominee is “going to be Donald Trump” because the GOP “has historically nominated someone who’s a mainstream conservative and someone who has a foundation in foreign policy that gives people confidence that they can guide the ship of state in troubled waters.” Trump said Chris Christie, Marco Rubio, John Kasich, Jeb Bush, Lindsey Graham, and Carly Fiorina are might qualify as a “mainstream conservative”. Since Christie, Bush and Fiorina have all dropped out of the race, that leaves Rubio and Kasich.

(2) John McCain & Paul Ryan

A day later on March 3, as reported by the APRomney intensified his attack, now joined by 2008 Republican presidential nominee Senator John McCain and Romney’s 2012 running mate House Speaker Paul Ryan, calling Trump unfit for office and a danger for the nation and the GOP.

McCain called Trump’s statements on national security issues “uninformed and indeed dangerous,” while Romney declared Trump “is not the temperament of a stable, thoughtful leader” and called Trump “a phony” who is “playing the American public for suckers,” a man whose “imagination must not be married to real power.” Romney said that “Given the current delegate selection process, this means that I would vote for Marco Rubio in Florida, for John Kasich in Ohio and for Ted Cruz or whichever one of the other two contenders has the best chance of beating Mr. Trump in a given state.”

As the AP and under political analysts observe, the GOP is now in a panic because “there is little they see to stop Trump’s march toward the presidential nomination. Party leaders are poring over complicated delegate math, outlining hazy scenarios for a contested national convention and even flirting with the idea of a third-party effort.”

(3) Rush Limbaugh

On his radio talk show on March 2, Rush Limbaugh after outlining three ways to defeat Trump: (1) waiting for Trump to implode; (2) splitting the Republican convention delegates so Trump won’t have the 1,237 needed to secure the nomination on the first vote; and (3) uniting behind Florida Sen. Marco Rubio, Limbaugh proposed that the GOP unite behind Ted Cruz as “their smartest move.” But Limbaugh predicted that the GOP “will not do that” and that “Rubio is the desired candidate because that’s where the moneyed people want to go. He’s closer to the establishment, this whole Gang of Eight business.”

So what exactly are the reasons for why GOP elites and conservative pundits so object to Trump? 

(1) A Trump nomination ensures a Hillary victory

That’s the conventional “wisdom”. As The FT reports, many mainstream Republicans believe Trump would struggle to beat Hillary Clinton and are urgently rallying around their man Rubio. Some senior Republicans, e.g., Bill Kristol, are even saying privately that they might consider voting for Hillary if Trump were to end up as their party nominee.

Let me get this straight: The GOP objects to Trump because they think he will lose to Hillary, and so their solution is to vote for Hillary, thereby ensuring precisely what they say they fear — that Trump will lose to Hillary. Does anyone understand their twisted circular logic?

So the question is: Will Trump lose if he goes against Hillary Clinton?

As the following RealClearPolitics chart shows, it’s far too close to call. More importantly, the gap  between Clinton and Trump is closing. (H/t ZeroHedge)

Clinton vs. Trump polling data

Tantalizingly, as reported by the New York Post on Feb. 28, 2016, confidential polling data actually show that in heavily democratic New York, Hillary could lose the presidential election to Trump, even without former New York mayor Michael Bloomberg in the race (Bloomberg is hinting he might enter the race as a third party candidate). Support for Trump is strong even in Westchester and on Long Island, the key suburbs often viewed as crucial swing bellwethers on how statewide elections will turn out.

The polls found that Hillary often had higher negative ratings with voters than did Trump. Some of the polls also found a greater degree of intensity among Trump’s potential voters than among Clinton’s, a finding that mirrors the stronger GOP turnouts that have been registered in the presidential primaries.

It’s not just confidential polling data that find surprisingly strong support for Trump in New York. A recent publicly disclosed Siena College poll of Long Island voters found Trump narrowly beating Clinton among Long Island voters, 41% to 38%, while he was crushing his two nearest GOP primary opponents, Marco Rubio and John Kasich, by 37 percentage points each.

(2) Thoughtful anti-Trump Reasons

I have found two individuals who have articulated thoughtful and thought-provoking reasons for why Donald Trump should give us pause. Both express empathy for the frustrations that so many of us have with the dysfunctional U.S. political system and politics.

Senator Ben Sasse

In an “Open letter to Trump supporters,” Senator Ben Sasse (R-Nebraska), who calls himself not an “establishment Republican” but a “movement conservative who was elected over the objections of the GOP establishment” who is against open borders and will vote for neither Hillary nor Trump if those are the choices, conveys his misgivings on Trump not respecting the U.S. Constitution. (Note: Sen. Sasse, whom Sarah Palin endorsed in 2014, has the 4th most conservative record in the Senate, and the endorsement of Sarah Palin in 2014.) Sasse gives two reasons for being concerned about Trump:

  • Trump’s “relentless focus” on dividing Americans and on “tearing down rather than building back up” our country.
  • Trump is not a Constitutionalist because he seems to think a president of the United States is a king, instead of a servant of the people: “Much like President Obama, he displays essentially no understanding of the fact that, in the American system, we have a constitutional system of checks and balances, with three separate but co-equal branches of government. And the task of public officials is to be public ‘servants.’ The law is king, and the people are boss. But have you noticed how Mr. Trump uses the word ‘Reign’ – like he thinks he’s running for King? It’s creepy, actually. Nebraskans are not looking for a king. We yearn instead for the recovery of a Constitutional Republic…. The president’s job is not about just mindlessly shouting the word “strong”…. No, the president’s core calling is to “Preserve, Protect, and Defend the Constitution…. So let me ask you: Do you believe the beating heart of Mr. Trump’s candidacy has been a defense of the Constitution? Do you believe it’s been an impassioned defense of the First Amendment – or an attack on it?…. I believe a sizable share of Christians – who regard threats against religious liberty as arguably the greatest crisis of our time – are unwilling to support any candidate who does not make a full-throated defense of the First Amendment a first commitment of their candidacy. Conservatives understand that all men are created equal and made in the image of God, but also that government must be limited so that fallen men do not wield too much power. A presidential candidate who boasts about what he’ll do during his ‘reign’ and refuses to condemn the KKK cannot lead a conservative movement in America.”

To illustrate his concerns, Senator Sasse points to these quotes by Trump:

  • “We’re going to open up libel laws and we’re going to have people sue you like you’ve never got sued before.”
  • “When the students poured into Tiananmen Square, the Chinese government almost blew it. They were vicious, they were horrible, but they put it down with strength. That shows you the power of strength. Our country is right now perceived as weak…”
  • “Putin, who has killed journalists and is pillaging Ukraine, is a great leader.”
  • The editor of National Review “should not be allowed on TV and the FCC should fine him.”
  • On whether he will use executive orders to end-run Congress, as President Obama has illegally done, Trump said, “I won’t refuse it. I’m going to do a lot of things” and “I mean, he’s [Obama] led the way, to be honest with you.”
  • “68% [of illegal immigrants?] would not leave under any circumstance. I think that means murder. It think it means anything.”
  • On the internet: “I would certainly be open to closing areas” of it.
  • Trump’s lawyers to people selling anti-Trump t-shirts: “Mr. Trump considers this to be a very serious matter and has authorized our legal team to take all necessary and appropriate actions to bring an immediate halt…”
  • Similar threatening legal letters to competing campaigns running ads about his record.

Sasse signed his open letter as “Humbly, Ben Sasse, Nebraska”.

For his part, attorney Jay Gaskill, writing in The Out*Lawyer’s Blog, is troubled by the absence of Trump’s presidential staff, i.e., named policy advisers who may make up the cabinet of a Trump presidency. In Gaskill’s words:

For now, “The Donald” is enjoying a Halo-Effect…. The Halo is always a mirage…. Anyone who has followed “The Donald’s” career knows that he is a very shrewd operator….

Trump is the known, unknown candidate. For most Americans he’s the self-confident image of success, the millionaire (or billionaire?) of Celebrity Apprentice, brazenly charming enjoying the guilt-free glamour of a “self-made” rich man. He is a savvy manipulator with a gift for publicity. And – for most people – he is a likeable character, someone that people like Bill and Hillary liked to be seen with. His glamour is a projected image – a screen….

Whatever policy differences one might have, and whatever the ultimate verdict of history on the Reagan presidency, his presidency proved decisively that a good staff is absolutely essential to good governance. Reagan’s staff was first rate. Bill Clinton’s first term floundered because the former Arkansas Governor had poor staff support.

The contrast between Ronald Reagan and Donald Trump is stark….

“The Donald” appears to be the hollow candidate in the race, the walking, talking mirage, the one POTUS aspirant without experts, without even a detailed policy outline – other than his trademark fogball slogans….

Donald Trump is seeking the highest executive position in the free world, standing on a high wire without a strong policy portfolio, and with no visible presidential staff.  Presumably Mr. Trump thinks he can hire the necessary people at the last minute. One wonders if it has dawned on him yet that he will be legally required to put all his business ventures into a blind trust for the duration of his service. Of course, there are a number of reasons why someone in Donald Trump’s position would want to remain vague and fluid on concrete proposals, and to refrain from identifying specific experts and key staff members – assuming he has yet figured out who he even wants. But most of those reasons (still working on it, not ready yet, having recruiting issues) are no longer defensible.

The real reason to me stems from Trump’s shrewdness.

As soon as a candidate in his position starts to flesh out the prospective governance picture, to color in the lines, to fill the blanks, that candidate will pierce the bubble of unreasonable expectations. And with that “pop,” the fake halo is exposed. Donald Trump will then risk becoming that TV personality and real estate developer guy who wants us to trust him with the future of the United States of America. And based on what? Trump Tower? A few slogans? An honest face?

Former Congressman and House Speaker Newt Gingrich, who was a presidential candidate in the 2012 primaries, said he thinks the opposition of Republicans like Mitt Romney is because Trump is “an outsider” who’s “not part of the club,” did not go through the “initiation rites” of “the secret societies” (like George W. Bush’s Yale Scull and Bones?), and is therefore “uncontrollable”. “They have no idea how to relate to him.”

H/t FOTM‘s MomOfIV and bongiornoc


Trayvon Martin’s father says not his son’s voice in 911 call

In the first day of the Defense in George Zimmerman’s trial for the second-degree murder of Trayvon Martin, a major blow was dealt against the Prosecution.

Last Friday, Trayvon’s mother and brother had testified that the voice in the 911 call was that of Trayvon screaming for help. But Zimmerman’s mother and uncle also testified last Friday that it was Zimmerman screaming in the 911 call.

Today, however, the lead detective in the Zimmerman-Martin case testified that Trayvon Martin’s father had told him it was NOT his son screaming for help in the 911 call.

The 911 call captured the confrontation between Zimmerman and Martin shortly before Zimmerman fatally shot the teen. as such, the call is a crucial piece of evidence because it could determine who the aggressor was in the confrontation last year.

Testimony: Talking about the moment he played the tape to Tracy Martin the night after his son was shot, Serino told the court he asked him if the voice was Trayvon's and he said 'no'Matt Blake and Rachel Quigley report for the Daily Mail, July 8, 2013, that detective Chris Serino (above) took the stand for the second time in the trial. He was called after seven of Zimmerman’s friends told the court it was the neighborhood watch volunteer, not Martin, who was crying for help in the 911 call.Serino told the court that one or two days after the shooting, he had played the tape of the 911 call to Tracy Martin, Trayvon’s father, and his girlfriend. Serino asked Martin if the voice belonged to Trayvon. “‘He looked away and under his breath as I interpret it, said ‘no’,” Serino recalled.
Parents: Tracy Martin and Sybrina Fulton arrive today. Mother Sybrina testified on Friday that the calls for help belonged to her son

Trayvon’s parents: Tracy Martin (l) and Sybrina Fulton (r).

The Sanford, Florida detective’s testimony will further harm the state’s case against Zimmerman.

Seven of Zimmerman’s friends and coworkers also told the court this morning that the screams for help in the 911 tape belonged to Zimmerman.

After the call was played for Sondra Osterman (pic below) in the courtroom, defense attorney Mark O’Mara asked who it was. “Yes, definitely. It’s Georgie. I just hear it. I hear him screaming,” Osterman said. She testified she had first met Zimmerman in 2006 while working with him at a mortgage company. Osterman and her husband, Mark, describe themselves as the best friends of Zimmerman and his wife.

When asked by O’Mara if she detected ill will, spite or hatred in his voice when he said to the 911 dispatcher: “F***ing punks. These a*******. They always get away,” she answered no.

Prosecutors must show that Zimmerman acted with ill will, spite or a depraved mind in order to get a second-degree murder conviction.

Under cross-examination, prosecutor Bernie de la Rionda implied that Sondra Osterman and her husband, Mark, had a stake in the outcome of the trial because they had written a book about Zimmerman’s case and were donating the proceeds to their friend.

“I wouldn’t lie for him or for anybody,” Sondra Osterman said, adding that she was unsure how many copies her husband’s book, Defending our Friend: The Most Hated Man in America, has sold.

Another friend of Zimmerman, John Donnelly (below), also testified that the voice screaming for help in the 911 tape was that of Zimmerman.

He said he thinks of Zimmerman “as a son” and had spent $4,700 — donating to Zimmerman’s defense fund, his personal website, and buying him suits, shirts, and ties for the trial.

Donnelly became quite emotional after listening to the screams. “There’s absolutely no doubt in my mind that is George Zimmerman,” Donnelly told the jury while wiping his eyes. “And I wish to God I did not have the ability to make the determination.”

Emotional: John Donnelly, a friend of George Zimmerman, dries his eyes after listening to screams on the 911 tape entered in evidence, which he said belongs to the 29-year-old
Zimmerman’s best friend, Mark Osterman (pic below), testified about how Zimmerman had chosen and purchased his firearm and revealed that he could shoot with both hands and had recommended keeping the gun loaded.
Best friend: Mark Osterman testified about how Zimmerman had chosen and purchased his firearm and revealed that he could shoot with both hands

Another friend and former coworker of Zimmerman, Geri Russo, also testified that the yelling heard on the 911 tape is Zimmerman. She told the court, “I recognize his voice, I’ve heard him speak many times. I have no doubt in my mind that’s his voice.”

Yet another former coworker, Leanne Benjamin, also identified Zimmerman as the screaming voice on the 911 call.
“I know his voice,” Benjamin told jurors. “I know what his voice sounds like when he gets excited or loud.”

Today’s testimony supports speculation which emerged over the weekend that Zimmerman will walk free amid claims the prosecution’s case has crumbled. Experts say that lawyers acting on behalf of the State of Miami have failed to show that Zimmerman did not reasonably believe the gunshot was ‘necessary to prevent imminent death or great bodily harm’ to himself.

ABC News’ legal expert Dan Abrams said while parts of Zimmerman’s account lack credibility, the prosecution has not done enough to convince a jury: “‘Now that the prosecution’s case against Zimmerman is in, as a legal matter, it is difficult to see how jurors find proof beyond a reasonable doubt that it wasn’t self defense.”

It is a notion shared by Fox NewsJon Lott, former chief economist at the United States Sentencing Commission, who claims the prosecution’s argument is so thin that it should “never have been brought” to court, “but they let politics influence their decision.”

That is also the opinion of former California Alameda County Public Defender Jay Gaskill. See his analysis of the trial here.


Democrat public defender: Zimmerman acted in self-defense

Jay Gaskill is a licensed attorney who was the Public Defender of Alameda County in the San Francisco Bay Area.

Gaskill is also a registered Democrat who, despite his party ID, is my friend. LOL

It is therefore significant that, based on the trial testimonies thus far, Gaskill believes that George Zimmerman was acting in justified self-defense when he struggled with and then shot Trayvon Martin. Gaskill also believes that, given the facts, the prosecution should never filed and pursued a murder charge against Zimmerman. That the prosecution did do that suggests they’re acting from PC pressure, in a case that Obama, as the President of the United States, had unseemly and irresponsibly politicized with his incendiary remark: “If I had a son, he’d look like Trayvon.”

FOTM is grateful for Mr. Gaskill’s permission to republish his essay from his Out*lawyer’s Blog.


ht_george_zimmerman_head_dm_120419_wmainZimmerman’s head wounds from his “encounter” with Martin.

Martin versus Zimmerman or Politically Correct Prosecution vs. Justice

Legal commentary & OPINION

By Jay B. Gaskill, Attorney at Law

June 28, 2013

Trayvon Martin died in a struggle, not – as one breathless media-bot proclaimed just before trial – from being “gunned down.”

The evidence now unambiguously shows that, at the time of the fatal shot, Mr. Zimmerman was down; and Mr. Martin was on top of him, administering a first class beating.

The following is a reasonably accurate summary of the general law as it applies to self-defense cases –

“The circumstances under which he acted must have been such as to produce in the mind of a reasonable prudent person, similarly situated, the reasonable belief that the other person was then about to kill him or to do him serious bodily harm. In addition, the Defendant must have actually believed that he was in imminent danger of death or serious bodily harm and that deadly force must be used to repel it. If evidence of self-defense is present, the State must prove beyond a reasonable doubt that the Defendant did not act in self-defense.”

On the face of it – and from the prosecution’s case so far – it appears that Mr. Zimmerman has a strong self-defense case right out of the box.  Few prosecutors I know would – except in extremis and under relentless political pressure –file and pursue a murder charge in a case like Mr. Zimmerman’s.

If the prosecution can salvage anything from this disaster it might be a manslaughter case based on the doctrine of “imperfect self-defense”, on the notion – so far unproven – that Mr. Zimmerman provoked the struggle and then acted with unnecessary and unreasonable force when he began to lose the fight.

This probably won’t work.  No evidence has surfaced that Zimmerman initiated the use of force and the legal test of his response to being pummeled is what a reasonable person would do if similarly situated. 

Were it my defense case, I would argue – and this can be done very persuasively – that Mr. Zimmerman faced a deadly threat because he was carrying a firearm against a crazed opponent who could not be counted on to use restraint if he (Martin) got control of it during the struggle.

When violently attacked, there is no duty to flee or to turn the other cheek.

I know it is premature to comment, but as the facts have so far unfolded, it would appear to be a grave miscarriage of justice if Mr. Zimmerman were convicted of murder (absent some compelling new evidence, so far not even hinted at).  A manslaughter conviction would be more of a misfire, than a miscarriage, a repellant sop to those fevered souls who had hoped to turn this tragedy into some kind of racial cause-celeb.

I am deeply sorry the Mr. Martin died and that Mr. Zimmerman must go through this nightmare parody of a political trial.

Or so it seems from my remote viewing platform.


Why a Democrat Public Defender is for gun rights

Jay Gaskill is a licensed attorney who retired from 10 years as Public Defender of Alameda County in the San Francisco Bay Area.

Gaskill is also a registered Democrat who’s my friend and among a handful of people whom I consider the smartest I’ve met. I am grateful for his permission to republish this essay.


self reliance

By Jay B Gaskill

As published on the Policy Think Site at — http://jaygaskill.com/GunsGermsAndStealing.htm

Those still in the grip of the “use a gun, go to your room” criminal justice model are puzzled why so many unenlightened Americans cling to their firearms and churches when civilized people are beyond all that.  For these naïve minds, crime is a sort of flu, and guns operate as the disease vector, the medieval plague rats, if you will, of the modern urban era. And morality is what nice people do to gain approval and advancement among other nice people in a nice world that would by almost perfect if there weren’t so darn many firearms in private hands.

This will not be some armchair Op Ed by an academic or drawing room criminologist who “has taken a lot of classes.”

“My three decade career (as a public defender of Alameda County, based in Oakland, CA) ended in a final decade as the boss, when I served as the head Public Defender for that county, supervising 140 lawyers and professional investigators, reporting to country bureaucrats and five elected officials.  Over that period, I estimate that I had conducted considerably more than 14,000 confidential, in-depth encounters with crooks of all ages. I spent enough time behind bars (excluding nights, of course) to serve a term for car theft.  No sociologist or criminologist has been able replicate that experience.  No typical public defender was paying attention in quite the same way that I was, because I was a student of the human condition. What a field study!”

{Excerpt from my essay/speech, A journey Inside the Criminal Mind.  Go to this link for more about the thug mindset… http://www.jaygaskill.com/InsideTheCriminalMind.htm }

Most violent crime, including the armed thefts we call robbery and carjacking, are opportunistic, and most street crime is impulsive.  Almost all armed criminals are carrying illegal firearms, most of which have already been used at another crime scene.  My investigators remarked at the fact that a firearm is almost never recovered from an Oakland crime scene because “it never even gets dropped to the pavement before another crook has run off with it.”  Oakland’s police department has been thrice decimated by budget cuts.  The result is a catastrophic under-policing of a high crime prone subpopulation that includes several thousand parolees in a city of only a few hundred thousand.  To keep the lid on, I believe that Oakland needs at least 1,400 street cops (hint – high police ratios were instituted in NYC by Mayor Giuliani and wisely retained by Mayor Bloomberg, and as a direct result the big Apple is one of the safest cities in the world).  Oakland has fewer than 600 cops on the street at the moment (slightly more on the payroll), and crime is busting out all over.

No one in Oakland is talking civilian gun control.  Why? Here is a thought experiment.  You are an able bodied family man or woman, and you live in a place like Oakland, CA.  You qualify for a handgun, after appropriate training.  You are not firearm phobic. You can afford it.  Your neighbors have been terrorized.  You can’t afford to move away or hire a private security service.  You look up the average 911 emergency wait times for your area. Assume one of these is the average wait time for you:

[  ] 10 minutes

[  ] 20 minutes

[  ] 30 minutes

[  ] 60 minutes

[  ] 90 minutes

At which delay point (check the box) would you seriously consider getting a firearm to defend your family?  In the Bay Area, a staunchly progressive-liberal culture, there are several subgroups that are very much into self-defense training and technologies, including personal firearms: The group includes gays, single women and elders.  Why?  Because they are vulnerable targets.

Chip Johnson is an Oakland based columnist for the San Francisco Chronicle.  He usually writes about Oakland, and he never pulls his punches.  Yesterday, Oakland officials held a press conference to brag about how they, with limited resources, had gotten a handle on the crime problem.  Not. Johnson’s piece, “Oakland officials have lost grip on violence”, is worth a full read.  Here’s a sample:

“Across the street from the spot where the news conference was to take place on the windswept 6400 block of International Boulevard, Alexander Brown, a 22-year-old student, talked about his run-ins with violence. He has been robbed and beaten, and had a gun stuck in his face two years ago.

“He relies on his deep religious faith to see him through. “I put my faith in my creator,” said the young man.

“Literally 5 feet down the block, brothers Boogie and Antwan Johnson, who were walking home, also had a story of violence to tell.

“Antwan, 37, caught a stray bullet in the left thigh from an assault rifle last November. Boogie, 23, reeled off the names of five friends lost to gun violence in the last four months. Right next to the Johnson brothers, a store owner who asked not to be named pointed to a hole where a bullet had pierced his front door.

“Finally, a group of high school students from Aspire Academy, a public charter school, walked past – all of them in school purple.

“I asked what they do when they feel threatened by someone or see something sketchy happening close by.

“We run,” said Armando Alajandre, 15.”

{LINK– http://www.sfgate.com/bayarea/johnson/article/Oakland-leaders-have-lost-grip-on-violence-4194028.php  }

Some citizens of this still-free republic would rather not run.  Some object to those who advocate a state monopoly on the technologies of self-defense, especially of the handgun, the great equalizer that gives a 75 year old grandmother, trained in its use, to power to deter a thug four times her size.

It still deeply irritates me that poor people, who make up the overwhelming majority of crime victims in America’s inner cities, are offered all kinds of entitlements by the modern welfare state, except the one that really matters the most: the right to be safe and secure from the predator thugs they are forced to live with.  When we fail at providing this essential protection, who are we to deny our citizens the right to prudent self-help?

In 2010, the U S Supreme Court ruled in McDonald versus City Of Chicago that the right to self-defense protected by the Second Amendment is fundamental to the American conception of ordered liberty and must be applied to limit not only federal power but also that of state and local governments.

Almost any thug in Oakland who is on parole or probation can be repeatedly searched for firearms without a warrant, at times and places determined by law enforcement, not by the criminal. Such sweeps should be conducted every week, and can be expanded to include areas under the subject’s control, including vehicles and other stash places. Catching a thug with an illegal gun is a win-win – the miscreant is off the street and the gun is out of circulation.  Instead, the “use a gun, go to your room” set chooses to grandstand, by holding no-questions-asked guy buybacks, netting a few under -used weapons, like those owned by Granny before she was sent to the rest home, and Uncle Bill’s WWII 45, that was found in the garage.

Mass murders are another matter.  Read my Piece on Evil, Insanity and Dead Children, written in the aftermath of the Connecticut massacre.

{LINK –  http://jaygaskill.com/outlawyer/2012/12/17/evil-insanity-dead-children/   }

If you feel like jumping on a bandwagon, try supporting local police staffing levels, push for tough firearm home storage laws, faster, more complete and sophisticated background checks for firearms purchases, and repeated searches of the convicted criminals living among us.

We are not going to disarm the good guys anytime soon.  No should we.


Copyright © 2013 by Jay B Gaskill, Attorney at Law

Democrat lawyer calls Obama’s Executive Order “martial law lite”

My friend, Jay Gaskill, is a practicing attorney, a former Public Defender, a registered Democrat, and one among a handful of the smartest men I know.

He brings all that to this instructive analysis of the new Executive Order (EO) that Obama dumped on America last Friday, which Gaskill calls “a template for the imposition of martial law lite.”

I thank Jay for allowing FOTM to reproduce his analysis (you can also read his article on his own blog, here). To read Obama’s EO in full and my initial observations, click here.


Do you trust this man with that much power?


The March 16, 2012 POTUS Executive Order


By Jay B Gaskill

On March 16, the White House issued an Executive Order that creates and consolidates sweeping powers to acquire, redirect and control a whole range of private resources and activities in the name of defense preparedness.

On the face of it, this piece of work would have been in active development for about 6 months. It replaces at least two earlier specifically referenced executive orders that I haven’t yet read and it will undoubtedly change a number of others, unnamed.

Executive Order 12919 of June 3, 1994, and sections 401(3) (4) of Executive Order 12656 of November 18, 1988, are revoked.  All other previously issued orders, regulations, rulings, certificates, directives, and other actions relating to any function affected by this order shall remain in effect except as they are inconsistent with this order or are subsequently amended or revoked under proper authority.  Nothing in this order shall affect the validity or force of anything done under previous delegations or other assignment of authority under the Act.

(b)  Nothing in this order shall affect the authorities assigned under Executive Order 11858 of May 7, 1975, as amended, except as provided in section 802 of this order.

The Order derives its core rationale from the Defense Production Act of 1950 as amended, which Harry Truman attempted to use when he seized a private steel plant in 1952, but was rebuffed by the Supreme court in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).

One provision in the March 16th Order seems tailor made for the Truman seizure attempt

The head of each agency engaged in procurement for the national defense is delegated the authority of the President under section 303(e) of the Act, 50 U.S.C. App. 2093(e), to:

(a)  procure and install additional equipment, facilities, processes, or improvements to plants, factories, and other industrial facilities owned by the Federal Government and to procure and install Government owned equipment in plants, factories, or other industrial facilities owned by private persons;

(b)  provide for the modification or expansion of privately owned facilities, including the modification or improvement of production processes, when taking actions under sections 301, 302, or 303 of the Act, 50 U.S.C. App. 2091, 2092, 2093; and

(c)  sell or otherwise transfer equipment owned by the Federal Government and installed under section 303(e) of the Act, 50 U.S.C. App. 2093(e), to the owners of such plants, factories, or other industrial facilities.


Here are some excerpts from the 1950 law (recently amended) –

Critical and Strategic Materials

The powers granted in this section shall not be used to control the general distribution of any material in the civilian market unless the President finds (1) that such material is a scarce and critical material essential to the national defense, and (2) that the requirements of the national defense for such material cannot otherwise be met without creating a significant dislocation of the normal distribution of such material in the civilian market to such a degree as to create appreciable hardship.

 Domestic Energy; Materials, Equipment, and Services

 (1) Notwithstanding any other provision of this Act [50 U.S.C. App. § 2061-2171], the President may, by rule or order, require the allocation of, or the priority performance under contracts or orders (other than contracts of employment) relating to, materials, equipment, and services in order to maximize domestic energy supplies if he makes the findings required by paragraph (3) of this subsection.

(2) The authority granted by this subsection may not be used to require priority performance of contracts or orders, or to control the distribution of any supplies of materials, services, and facilities in the marketplace, unless the President finds that—

(A) such materials, services, and facilities are scarce, critical, and essential—

(i) to maintain or expand exploration, production, refining, transportation;

(ii) to conserve energy supplies; or

(iii) to construct or maintain energy facilities; and

(B) maintenance or expansion of exploration, production, refining, transportation, or conservation of energy supplies or the construction and maintenance of energy facilities cannot reasonably be accomplished without exercising the authority specified in paragraph (1) of this subsection.

(3) During any period when the authority conferred by this subsection is being exercised, the President shall take such action as may be appropriate to assure that such authority is being exercised in a manner which assures the coordinated administration of such authority with any priorities or allocations established under subsection (a) of this section and in effect during the same period.


Presidential Executive Orders, by their very nature, operate only within and on the Executive Branch; therefore they cannot override congressional enactments, like statutory law, or the rulings of the courts (when interpreting the laws and the constitution).

For the friends of liberty in this republic, this is small comfort, indeed, because the vast regulatory powers of the federal government are almost totally within the scope of this order, and those very powers have vastly been expanded since the time of Harry Truman’s steel seizure case. 

Anything that the executive has been heretofore allowed to do, acting through any agency, commission, bureau, can be controlled by an executive order, because POTUS is the chief executive.  This Presidential Order does not attempt to rely on the Commerce Clause for its authority, instead relying on the heavy boots of “national emergency”, “national defense”, “national defense preparedness”, and so on –

 (j)  “National defense” means programs for military and energy production or construction, military or critical infrastructure assistance to any foreign nation, homeland security, stockpiling, space, and any directly related activity.  Such term includes emergency preparedness activities conducted pursuant to title VI of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5195 et seq., and critical infrastructure protection and restoration.

Because of the emphasis on “preparation” the scope of the claimed authority is breathtaking.

(m)  “Strategic and critical materials” means materials (including energy) that (1) would be needed to supply the military, industrial, and essential civilian needs of the United States during a national emergency, and (2) are not found or produced in the United States in sufficient quantities to meet such need and are vulnerable to the termination or reduction of the availability of the material.

(n)  “Water resources” means all usable water, from all sources, within the jurisdiction of the United States, that can be managed, controlled, and allocated to meet emergency requirements, except “water resources” does not include usable water that qualifies as “food resources.”

There are at least three developments on the presidential radar (other than his ongoing reelection campaign) to which this package obviously relates.

  1. China has been actively locking up the world’s supply of rare earth elements, the arcane but indispensable magic ingredient of the entire computer/electronics industry.  The US has scattered and undeveloped sources for some, but by no means all rare earths elements.
  2. Pending trouble in the Middle East could cripple oil supply lines for months, driving up fuel oil and gasoline prices and creating critical shortages, even a partial breakdown in the national transportation system.
  3. The reliable flow of the more mundane essential materials on which the US industrial capacity (such as it is) critically depends (think steel, titanium, copper, aluminum), not to mention various critically important offshore manufacturing arrangements (think i-Pads, jet cockpit displays, GPS devices) for which we have no effective domestic counterparts, could be dramatically disrupted by economic and international political developments.
  4. Domestic terrorism theoretically could disrupt agriculture by interdicting rail transport, even via some biological agent that, say, poisons water supplies, but that set of scenarios is a bit too theoretical to be taken as seriously as the first three.


Industrial Policy is the full-on, top-down imposition of politically imposed objectives (for the “national good”) on the major producers in the private sector, often concealed under the rubric, “patriotic cooperation”.  The virtual cheek-to-jowl cooperation between Krupp, the German industrial giant, and the Nazi government is the paradigm example.  Industrial Policy crosses a number of lines of concern to those of us who value freedom.  As of March 16, 2012 in the USA, we’ve crept over several such lines and are poised to jump the rest.

Under the umbrella of defense preparedness, the President’s newest Executive Order reeks of creeping Industrial Policy.  Here are some samples that might raise eyebrows:

The domestic industrial and technological base is the foundation for national defense preparedness.  The authorities provided in the Act shall be used to strengthen this base and to ensure it is capable of responding to the national defense needs of the United States.

be prepared, in the event of a potential threat to the security of the United States, to take actions necessary to ensure the availability of adequate resources and production capability, including services and critical technology, for national defense requirements;

…perform industry analyses to assess capabilities of the industrial base to support the national defense, and develop policy recommendations to improve the international competitiveness of specific domestic industries and their abilities to meet national defense program needs.

The Secretary of each agency delegated authority under subsection (a) of this section (resource departments) shall plan for and issue regulations to prioritize and allocate resources and establish standards and procedures by which the authority shall be used to promote the national defense, under both emergency and non-emergency conditions. 

To create, maintain, protect, expand, or restore domestic industrial base capabilities essential for the national defense, the head of each agency engaged in procurement for the national defense is delegated the authority of the President under section 303 of the Act, 50 U.S.C. App. 2093, to make provision for purchases of, or commitments to purchase, an industrial resource or a critical technology item for Government use or resale, and to make provision for the development of production capabilities, and for the increased use of emerging technologies in security program applications, and to enable rapid transition of emerging technologies.

(b)  Materials acquired under section 303 of the Act, 50 U.S.C. App. 2093, that exceed the needs of the programs under the Act may be transferred to the National Defense Stockpile, if, in the judgment of the Secretary of Defense as the National Defense Stockpile Manager, such transfers are in the public interest.


Another concern -Does this Order contemplate a shadow, emergency government, consisting of NDER units??? 

I’ve read and reread the following provisions of the Order and I remain unsettled. Read it carefully, yourself.

Sec. 501.  National Defense Executive Reserve.  (a) In accordance with section 710(e) of the Act, 50 U.S.C. App. 2160(e), there is established in the executive branch a National Defense Executive Reserve (NDER) composed of persons of recognized expertise from various segments of the private sector and from Government (except full time Federal employees) for training for employment in executive positions in the Federal Government in the event of a national defense emergency.

(b)  The Secretary of Homeland Security shall issue necessary guidance for the NDER program, including appropriate guidance for establishment, recruitment, training, monitoring, and activation of NDER units and shall be responsible for the overall coordination of the NDER program.  The authority of the President under section 710(e) of the Act, 50 U.S.C. App. 2160(e), to determine periods of national defense emergency is delegated to the Secretary of Homeland Security.

(c)The head of any agency may implement section 501(a) of this order with respect to NDER operations in such agency.

(d)  The head of each agency with an NDER unit may exercise the authority under section 703 of the Act, 50 U.S.C. App. 2153, to employ civilian personnel when activating all or a part of its NDER unit.  The exercise of this authority shall be subject to the provisions of sections 501(e) and (f) of this order and shall not be redelegated.

(e)  The head of an agency may activate an NDER unit, in whole or in part, upon the written determination of the Secretary of Homeland Security that an emergency affecting the national defense exists and that the activation of the unit is necessary to carry out the emergency program functions of the agency.

(f)  Prior to activating the NDER unit, the head of the agency shall notify, in writing, the Assistant to the President for Homeland Security and Counterterrorism of the impending activation.



It’s all about the teeth.

In routine practice, much of this Executive Order is designed to streamline and expedite procurement processes already in place, bypassing bidding and providing emergency purchase loans.  And it imposes an overall strategic plan that is aimed primarily at preventing spot shortages and supply disruptions.  So far, this is in the nature of an incremental fix.  But we need to consider the players, the not-so-hidden agendas and the potential for abuse.

Because there are no meaningful disclaimers or limitations, constitutional or otherwise. 

By design rather than innocent omission, I suspect that the architects of this Order have produced a template that works quite well in connection with the imposition of “martial law lite”. As to that notion I invite you to imagine a condition in which the acquisition by the government of otherwise private resources and the redirection of domestic civilian priorities is rapidly and expeditiously accomplished using a combination of loans, fine and outright takings.

Think of it, if you will, as if we were living in exposed tents on a large plain.  A few feral predators wander about, usually keeping out of sight.  But one day, we wake up to notice that things have changed overnight.  The predators are now lining up rank by rank with great discipline. They surround your encampment.  They have purpose.

We’ve been led into complacency by government inefficiency.

We wake up in an era when a single administrative agency (one of hundreds operating within the executive branch) has the power to write regulations that have the force of the criminal law, the power to prosecute and even to adjudicate.

One such agency has recently declared the very carbon dioxide you are exhaling when you read this to be a dangerous pollutant.

Given the gradual stealth power grab by the federal regulator bureaucracies over the last half century, with scarcely a whimper of protest, are we entitled to be gravely concerned when the Executive seeks to consolidate all that power for the noble purpose of “preparedness”?

You bet we are.