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By Pete Williams

WASHINGTON — When Tyson Timbs was convicted of selling heroin to undercover police officers in Indiana, he was sentenced to a year of home detention and five years of probation. But the state also took away his expensive car.

On Wednesday, he’ll urge the U.S. Supreme Court to rule that the same provision of the U.S. Constitution that prevents the federal government from imposing excessive fines also applies to the states.

One of the central reasons for adopting the Constitution was to restrict the power of the federal government. For that reason, though it may seem surprising, the Bill of Rights applied only to the federal government when it was enacted.

Over time, the Supreme Court has ruled case-by-case that most of those protections also apply to the states. The most recent example came in 2010 when the court said the Second Amendment restricts state gun control efforts as well as federal ones.

Even so, the court has yet to apply a few remaining provisions to the states, and the Eighth Amendment’s ban on excessive fines is one of them. The amendment’s other two restrictions, forbidding cruel and unusual punishment and banning excessive bail, have been declared to restrict state authority as well.

Both sides in Wednesday’s case agree on the facts: Timbs became addicted to an opioid prescription for persistent foot pain. When that supply ran out, he turned to drug dealers and eventually to heroin. To pay for his addiction, he began dealing heroin and was arrested after he twice sold to undercover police officers.

The police said he used his car to facilitate the drug deals — a $42,000 Land Rover that he bought with money he received from his father’s life insurance policy — and the state instituted a forfeiture lawsuit to take it away from him.

Timbs fought to keep the vehicle, and the judge said the punishment of losing his car would be “grossly disproportionate” to the seriousness of his offense, given that the value of the Land Rover was more than four times the maximum fine for the drug conviction. But the Indiana Supreme Court reversed, holding that the Constitution’s ban on excessive fines doesn’t apply to the states.

The lawyers for Timbs say it should apply, for the same reasons the Supreme Court has cited in applying other constitutional provisions to the states — that the right is a fundamental liberty interest and is deeply rooted in the nation’s history and traditions.

Indiana argues in response that even if the ban on excessive fines applies to the states, the restriction should involve only personal fines that a person has to pay, not on the seizure of property used to commit a crime.

Civil liberties groups, led by the ACLU, urge the court to rule for Timbs. They say the past 30 years have bought an unprecedented rise in fines, fees and forfeitures “driven by a quest to generate revenue and to fund state and local justice systems.”

The penalties have hit low-income people especially hard, often causing them to lose their jobs and their homes, the groups say.

After hearing courtroom argument on Wednesday, the court will issue its decision by the end of the term in late June.



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Michael Cohen tries to walk back parts of guilty plea in recorded phone call, report says

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By Tom Winter and Dareh Gregorian

Michel Cohen, President Donald Trump’s former lawyer and fixer, said he was taking full responsibility for all of his actions when he testified before Congress, but he reportedly claimed he was innocent of some of the charges he pleaded guilty to in a private phone conversation with comedian Tom Arnold.

“There is no tax evasion,” Cohen told the “True Lies” actor in a March 25 phone call, according to The Wall Street Journal reported. The paper said Arnold taped the conversation and gave the paper the recording, in which Cohen also denied the bank fraud charges he pleaded guilty to. “It’s a lie,” he said.

Cohen told Arnold he copped a plea with federal prosecutors because “they had me on campaign finance” for covering up hush money payments for two women who claimed they had affairs with his former boss, Donald Trump. Trump has denied he had affairs with the women, former Playboy Playmate Karen McDougal and porn star Stormy Daniels.

Cohen — who is supposed to begin serving a three-year prison sentence for his crimes next month — told Arnold in the recording that he’d gotten a raw deal, The Wall Street Journal reported.

“I’m a man all alone, right, and I shouldn’t be alone anymore,” he said in the recording, according to the paper, noting that he cooperated with prosecutors and Congress.

“You would think that you would have folks, you know, stepping up and saying, ‘You know what, this guy’s lost everything. I mean everything.’ My family’s happiness, my law license. I lost my business, everything, my insurance, my bank accounts, all for what? All for what? Because Trump, you know, had an affair with a porn star? That’s really what this is about,” he groused, according to the paper.

Cohen also reportedly told Arnold he took the deal because he was worried his wife could face legal exposure if he didn’t.

Tom Arnold on Megyn Kelly Today on Sept. 25, 2018.Nathan Congleton / NBC

“I love this woman. I am not going to let her get dragged into the mud of this crap. And I never thought the judge was going to throw a three year fricking sentence,” he said, according to the paper.

The judge who sentenced Cohen did cut him slack for his cooperation — federal sentencing guidelines had called for him to get between 4 years and 3 months to 5 years and 3 months.

In their sentencing memorandum, prosecutors said Cohen was pleading guilty because he was guilty.

They noted that Cohen did not inform his accountant of $2.4 million in interests payments made to accounts in his or his wife’s name from 2012-2016 from a loan he made to a taxi operator. Prosecutors say Cohen never provided statements for that and other income to his tax preparer in what they described as an intentional effort to avoid paying income tax.

The bank fraud charge stemmed from a home loan where Cohen had told the bank he had a negative net worth, and then updated his financial statement to say he had a net worth of $17 million after investigators executed search warrants at his home and office.

Cohen lawyer Lanny Davis said Cohen’s statements were in line with what his client had said previously, and touted that the Mueller report had found Cohen to be a “credible” witness.

“Nothing said by Mr. Cohen to Tom Arnold contradicts Mr. Cohen’s previous defense attorney, Guy Petrillo, in his sentencing memorandum to the presiding federal US District Court Judge William H. Pauley III back in December. I would also add the important words used by Special Counsel Robert Mueller, and others, in describing Michael Cohen’s cooperation and testimony as “credible” addressing the ‘core’ issues involved in his investigation,” Davis said.

Trump lawyer Rudy Giuliani tweeted that the story was a continuation of Cohen’s “many deceptions.”



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Theresa May targets June 30 to get a Brexit deal agreed

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THERESA May has set herself a new Brexit deadline of June 30 to ensure that British MEPs elected next month never take up their seats, Whitehall sources revealed last night.

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Trump goes to war for power over Congress

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By Jonathan Allen

WASHINGTON — President Donald Trump is trying to show Congress that he’s boss.

The release last week of special counsel Robert Mueller’s report on Russian interference in the 2016 election and possible obstruction of justice by Trump has unleashed the president’s fury — as evidenced by a steady stream of angry tweets and threats of retribution against adversaries real and perceived — and his willingness to thumb his front tooth at Congress.

The result is an escalating assertion of the presidency as the dominant branch of government in a war over the balance of power. The battle has implications for the rest of Trump’s first term, his re-election bid and the institutional authorities at the heart of American democracy.

There’s even some thought that Trump is now baiting the House to impeach him.

“I think it’s entirely possible he’s pursuing a briar-patch strategy, like bring your impeachment because you will be punished for it — not by me, but by the voters,” said Michael Caputo, a GOP strategist and former Trump adviser.

Increasingly, constitutional experts say Trump is providing evidence to conclude that there are grounds outside Mueller’s findings that he has crossed the Constitution’s loosely defined “high crimes and misdemeanors” threshold for impeachment.

Most recently, for example, Trump has instructed subordinates to deny Congress access to witnesses and documents that House leaders have demanded for their investigations. The Washington Post reported that the White House plans to block a subpoena for former White House counsel Don McGahn to testify by exercising executive privilege, though Trump told the paper in an interview that he had not “made a final, final decision” to do so.

But some longtime analysts of the Washington power balance say Trump’s latest moves are the most contemptuous in a full-scale effort to stretch the bounds of his office.

“Trump is not inventing executive intransigence out of whole cloth,” said Heidi Kitrosser, author of “Reclaiming Accountability: Transparency, Executive Power, and the U.S. Constitution” and a professor at the University of Minnesota law school. “At the same time, this is not same-old, same-old. He is taking longstanding pathologies in terms of an increasingly imperial executive branch and ratcheting it up many times over.”

In recent months, Trump has declared a national emergency so he could re-appropriate money to build a border wall — a move congressional Democrats and several state attorneys general say is an unconstitutional encroachment on Congress’ spending authority — and his administration has routinely denied lawmakers’ requests for basic information from federal agencies.

It’s not just Congress that has found Trump’s regard for the rule of law wanting; the courts have also weighed in.

In a review of more than five dozen instances in which courts blocked actions by the Trump administration, The Washington Post found a common thread: judges ruling that officials had implemented policies without following the rules.

In his report to Attorney General William Barr, Mueller identified 10 instances in which Trump’s behavior could be viewed as obstruction of justice. While Mueller declined to conclude the president had, in fact, obstructed justice — he said that Justice Department policy precluded him from recommending a prosecution of the president whether or not he believed it was warranted — he also said his report did not exonerate Trump.

Trump’s angry reaction to the release of the redacted Mueller report, his ongoing commentary about witnesses and his demand that the White House fight congressional efforts to interview Mueller’s witnesses has been taken by some critics as fresh evidence that he continues to obstruct justice.

Increasingly, constitutional experts say that Trump’s actions, both within the context of the just-released special counsel report and outside it, represent abuses of office so serious they could rise to the constitutional impeachment standard of “high crimes and misdemeanors.”

“The report’s details add to an existing body of information already in the public domain documenting the president’s violations of his oath, including but not limited to his denigration of the free press, verbal attacks on members of the judiciary, encouragement of law enforcement officers to violate the law, and incessant lying to the American people,” several members of the group Checks and Balances, co-founded by conservative lawyer George Conway, wrote in a statement released Tuesday. “We believe the framers of the Constitution would have viewed the totality of this conduct as evidence of high crimes and misdemeanors.”

In any event, Trump is demonstrating a resistance to the constraints on his office — and a disrespect for the powers of the other “co-equal” branches of his government — that is both familiar in nature and unfamiliar in degree to those who have watched authority ceded to the presidency in recent decades.

“I think this is an extension of a trend that has been occurring over the past several presidencies,” said Mack McLarty, who served as President Bill Clinton’s chief of staff. “President Trump has pushed the limit and that may be putting it diplomatically.”

Kitrosser, the University of Minnesota law school professor, said the response to Trump will be important for the future of the balance of power.

“The big question is, will the Trump administration be a turning point that leads us to address some of these longstanding pathologies, particularly executive imperialism and Congress’ abdication, or whether it is going to lead us to accept ever greater imbalance of power?” she said. “I think we’re at a real turning point and it can go one way or the other.”

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