Wednesday, October 24, 2018

The D.C. Circuit Court of Appeals Wants to Hear From Me?!

Image result for dc circuit court of appealsI was very surprised this week to learn that the U.S. Circuit Court of Appeals for the District of Columbia Circuit accepted my request to file an Amicus Curiae brief in the case of Miller v. United States of America.  Andrew Miller, who once worked as an aide to Trump ally Roger Stone, has been held in contempt of court for refusing to testify before a grand jury in special counsel Robert Mueller’s Russia investigation. Miller attempted to quash his subpoena, but a judge ruled this month that he would have to testify.  Oral arguments in the matter are scheduled for November 8, two days after the midterm elections.

What makes this curious is that it is unusual to allow amicus curiae briefs in a criminal matter.   Yet, by an Order entered October 11, 2018, that is exactly what the Circuit Court did and now I have filed my Amicus Curiae brief.  Here is what is more curious:

  • Jeannie S. Rhee of the Department of Justice -- who represented Hillary Clinton during the 2015 lawsuit regarding her private emails and the Clinton Foundation in a racketeering case --  agreed to my filing of the brief; and
  • The issue I raise -- that has not been raised on appeal by either the government or counsel for Andrew Miller -- is arguably dispositive:  Regardless of whether Mr. Mueller initially had the authority for his investigation into Russian Collusion, by statute found at 5 U.S. Code §3346 Mr. Mueller's authority ended 210 days after he was appointed by Mr. Rosenstein.  That date was December 17, 2017, and every action taken by him thereafter is void. See: 5 U.S.C. §3348(d)("any function or duty of a vacant office’ performed by a person not properly serving under the statute shall have no force or effect.”)
  • Will I be allowed to argue orally? What does all this mean?  
You tell me.


Wednesday, September 5, 2018

I am not alone in arguing Robert Muller is operating extra-Constitutionally

WASHINGTON - FBI Director Robert Mueller testifies during a hearing before the House Judiciary Committee July 26, 2007 on Capitol Hill in Washington, DC. The hearing was held to examine whether the FBI have misused their power. (Photo by Alex Wong/Getty Images)

In a recent post, I published a letter to President Trump arguing that Robert Muller is acting without Constitutional authority and hence all his actions are void.  I am not alone in making this argument but am joined by respected legal authorities Steven Calabresi, one of the founders of the Federalist Society and a law professor at Northwestern and Douglas Kmiec, who teaches constitutional law at Pepperdine University:


Sunday, August 19, 2018

The National Labor Relations Board, CarMax and Me

The NLRB has five Members and is presently controlled by a Republican majority. The NLRB primarily acts as a quasi-judicial body in deciding cases on the basis of formal records in administrative proceedings. Board Members are appointed by the President to 5-year terms.

Under the President Obama-controlled National Labor Relations Board (“NLRB”), a rule was promulgated in 2014 know as the Purple Communications rule. That rule said that Employees who have been given access to their Employer’s email system for work-related purposes have a presumptive right to use that system for Section 7–protected communications on nonworking time. Enacted in 1935, Section 7 refers to the National Labor Relations Act, §7 which guarantees Employees the right to engage in “concerted activities for the purpose of . . . other mutual aid or protection".

It was under that Purple Communications rule that I, on May 1, 2016, when employed at CarMax, sent out seven thousand, five hundred (7,500) emails to CarMax Sales Associates spread out over 159 stores in 38 states.  The email raised wage and working conditions concerns and produced a remarkable response to a Google Forms questionnaire.  Of course, CarMax fired me five days later on May 6, 2016.  My firing is a story for another day.

Why all this is relevant now is this:  Under the President Trump-controlled NLRB, a case has arisen which the Republicans on the NLRB are using to repeal the Purple Communications rule.  This would allow Employers to block use of company email systems for Employee communications regarding union or other protected concerted activity.

Graciously, the NLRB has requested Amicus briefs on whether to repeal the Purple Communications rule.  As I, due to my unique experience at CarMax, have a singular perspective on the inestimable value of maintaining the Purple Communications rule, I have told my CarMax story in my Amicus brief. Through the Exhibits to the Brief are long, the Brief itself is short and makes for an illustrative story of the corrosive power of soulless corporations using Employee-controlling technology to maintain their unfair hegemony which renders the 1935 NLRA virtually meaningless today. Caveat Operarius!