Oh, the White House really doesn't like this image.
On November 15, 2010, thirteen LGBT equality activists chained themselves to the White House fence to protest the Don't Ask, Don't Tell policy. As I wrote this spring, the Justice Department charged the protesters with a crime that carried a six month jail sentence, an unprecedented charge given how such protests had been handled in the past. The judge also felt that the government was being overzealous and ordered the prosecutors to amend the charges. A plea deal was eventually struck with twelve of the thirteen protesters.
This morning, Jane Hamsher is reporting on shocking new evidence presented at the trial of the lone hold-out, Lt. Dan Choi. As it turns out, the governments efforts to make an example of the White House 13 didn't begin this spring in the courtroom. In fact, officials from the Department of the Interior were discussing how to prosecute the White House 13 before the protest even began.
Lt. Choi's attorney admitted into evidence the email below from Raldolph Myers, an attorney in the Department of the Interior, to officials at the Park Police. In this email, Myers advises that chaining oneself to White House fence could violate National Park Service regulations and suggests several different violations the protesters could be charged with.
From: Myers, Raldolph 11/15/2010, 10:50 am
To: Hodge, Timothy; Guddemi, Charles; MacLean, Robert
Subject: At least two CFR citations may be invoked against protesters who chain themselves to the White House fence
Sgt Hodge:
This follows up on our telephone conversation this morning, to confirm that the Solicitor’s Office believes that the act of chaining oneself to the White House fence violates at least two NPS regulations. First, it could constitute disorderly conduct under 36 CFR 2.34(a)(4), which prohibits anyone A with intent to cause public alarm, nuisance, jeopardy…or knowingly or recklessly creating a risk thereof that creates or maintains a hazardous or physically offensive condition. Second, it could constitute tampering under 36 CFR 2.31(a)(2), which prohibits [t]ampering or attempting to tamper with property …except when such property is under one’s lawful control or possession.
Indeed, while both NPS regulations provide the legal basis that make such chaining illegal, if the violator fails to obey a Park Police order to unchain, you may be free to cite the violator under another charge: NPS=s 36 CFR 2.32(a)(2) which prohibits failure to obey a lawful order. [The act of chaining oneself to the White House fence, in itself, may not technically violate 36 CFR 7.96(g)(5)(vii) insofar as it prohibits signs or placards being tied, fastened, or otherwise attached to or leaned against the White House fence, lamp post or other structures on the White House sidewalk]
The NPS’s regulatory history of its disorderly conduct regulation, found at 47 Federal Register 11598, 11607 (March 17, 1982), explain that [t]he concept of jeopardy is meant to apply to situations or hazards which threaten physical harm or injury. The term nuisance is meant to be construed in accordance with its commonly accepted legal definition. For purposes of this regulation the definition set forth in Blacks Law Dictionary is instructive: That class of wrongs that arise from the unreasonable, unwarrantable, or unlawful use by a person of his own property, either real or personal, or from his own improper, indecent, or unlawful personal conduct, working an obstruction of or injury to the right of another or to the public, and producing such material annoyance, inconvenience, discomfort, or hurt, that the law will presume resulting damage. Blacks Law Dictionary (5th ed. 1979) Public alarm is meant to prohibit actions which will produce an apprehension of danger or excite with sudden fear. Chaining oneself obviously works as an obstruction or injury to the right of another or to the public insofar as it hinders the views and reactions of security personnel to monitor and protect such an extremely important physical barrier of the White House complex, and may pose a hazard which threatens physical harm or injury, especially in this sensitive post-911 world where explosive-laden persons have breached governmental secured areas.
The NPS’s regulatory history of its tampering regulation, found at 48 Federal Register 30252, 30270 June 30, 1983), explained that this selection A is designed to address incidents where unauthorized manipulation of the property, real property or the component parts thereof has occurred or is occurring, and the elements of other criminal offenses such as theft, trespassing, burglary or vandalism have not been realized. The National Park Service views the utilization of this section as a means to prevent unauthorized activities from developing into more serious offenses. WE believe that chaining oneself to a fence constitutes such an unauthorized manipulation of Federal property.
This is consistent with Green v Lujan, No. 90-2293 (D.D.C. February 11, 1991 which cites Restatement (Second) of Torts “202, 821B (1965, 1979)’s public nuisance as an unreaonable interference with a right common to the general public including but not limited to conduct which is prescribed by a statute, ordinance or administrative regulation. Indeed, demonstrators who have chained themselves in public areas or on private property have been convicted under various state laws. In People of the State of New York v. Berardi, 690 N.Y.S.2nd 916 (N.Y. City Crim. Ct. 1999), the court held that New York’s disorderly conduct law applied where demonstrators chained themselves front of a department store’s doorway, finding that the chaining caused public inconvenience, annoyance or alarm. In Huffman and Wright Logging Co. v. Wade, 857 P.2d 101 (Oregon 1993) the court noted the earlier convictions of demonstrators, who chained themselves to logging equipment, in violation of the Oregon criminal mischief law that prohibits tampering or interfering with property of another with an intent to cause substantial inconvenience to another. In State of North Dakota v. Purdy, 491 N.W.2d 402 (North Dakota 1992), the court affirmed a conviction for physical obstruction of a government function funder North Dakota law, where the demonstrators used cryptonite locks to lock themselves together in an abortion clinic, finding that the act of locking themselves together was to impede or hinder police and where it took three hours for locksmiths to safely remove them.
While we believe that chaining oneself violates 36 CFR2.34(a)(4) and 36 CFR2.31(a)(2), we will defer to prosecutor’s assessment of the facts of the particular case as to what charge they proceed with. And if a prosecutor elects to go forward with some other charge, their changing of the charge can negate the legality of the officer’s initial charge, since it has been long recognized that “an arrest will be upheld if probable cause exists to to support arrest for an offense [even if] that is not denominated as the reason for the arrest by the arresting officer.” United States v. Joyner, 492 F.2d 655, 656(D.D. Cir.1974). See also Washington Mobilization Comm. v. Cullinane, 566 F.2d 107, 123 (D.C. Cir. 1977) (“A policeman on the scene cannot be expected to assay the evidence with the technical precision of a prosecutor drawing an information.”); Christensen v. United States , 259 F.2d 192, 193 (D.C. Cir. 1959) (“In determining wither there was probable cause for the arrest, we must view the situation as it appeared to ‘the eyes of reasonable, cautious and prudent police officer under the circumstances of the moment.’”).
I hope that this information is useful. I have no objections if you share this with prosecutors. If you share this with prosecutors. I you or they have any questions, please do not hesitate to contact me at (202) 208-4338.
Randy Myers
There are several interesting things in this email (which I have bolded). First, note the timestamp. The email was sent nearly three hours BEFORE the protesters chained themselves to the fence. At this point no public announcement about the protest had been made. In court, it was revealed that Myers had learned of the protest from the Secret Service, but it is not clear how the Secret Service could have known about the protest. The first public announcement of the protest was Dan Choi's tweet about a "Rally @WhiteHouse 2pm", and the tweet was sent at 10:55am, five minutes after Myers sent his email about how to charge the protesters.
Second, note the charges suggested in the second paragraph. Myers argues that the protesters could be charged with violating 36 CFR 2.32(a)(2) for failure to obey a lawful order from a government official. Indeed, this was the statute under which Park Service prosecutors charged the White House 13 in March.
Finally, note Myers comment at the end of the email that he doesn't object to Park Service officials sharing the email with prosecutors. An executive branch official is offering to work with prosecutors to issue unprecedented and overzealous charges against political protesters who embarrassed the president. Didn't we have an issue in the last administration with the White House and Justice Department have inappropriate conversations? Indeed,in the fall of 2007, after Alberto Gonzalez was forced to resign over the US attorneys scandal, his replacement, Michael Mukasey set in place strict rules about how the officials from the Justice Department discuss their work with other executive branch employees. Referring to any pending "criminal or civil-enforcement matter", Mukasey wrote
With the exception of national security related matters, 'which are discussed below. all initial communications between the White House staff and the Justice Department regarding any specific pending Department investigation or criminal or civil-enforcement matter should involve only the Counsel to the President or Deputy Counsel to the President and the Attorney General or Deputy Attorney General. Initial communications regarding civil-enforcement matters may also involve the Associate Attorney General. Initial communications regarding a matter on appeal may also involve the Solicitor General.
I have three questions for the Obama administration.
First, how did the Secret Service learn about this protest before any public announcement had been made? What kind of domestic surveillance is being conducted on political activists who are not friendly with the administration?
Second, why are attorneys for the Interior Department offering to discuss how to charge political protesters with prosecutors? Are these discussions ethical?
Finally, why don't we see such overzealous prosecution of the banks who committed mortgage foreclosure fraud?