Andrew Weissmann on Trump’s Legal Woes
Andrew Weissmann is one of many legal analysts that MSNBC has turned to for legal discussions involving Donald Trump’s legal woes. Let’s explore some of Mr. Weissmann’s misguided analyses.
State Prison Term?
One assertion that Andrew Weissmann puts forth over Donald Trump’s state legal woes is that Donald Trump won’t be able to “get out of” any state convictions. While on its face, this assertion may seem valid, but not if you take into account a second presidency of Donald J. Trump. While a “standard bearer” President wouldn’t be able to get out of it, at least someone who actually respects the Constitution and the rule of law, we already understand that Donald Trump respects nothing but himself.
We already know that Donald Trump intends to retaliate against his political rivals. He’s already stated this. Exactly what that means or how that retribution may come is unclear. However, one thing is crystal clear. If Donald Trump is capable of an insurrection against the United States, complete with inciting his followers into violence, then Trump is absolutely 100% capable of any action against any government authority.
Should Donald Trump be found guilty of any state crimes that require incarceration in a state prison and assuming his guilty sentencing involves such incarceration, you can bet Donald Trump as President won’t serve a day of that state prison sentence. Why? Retribution.
Military Might
The President of the United States is the commander over the United States Military. Trump knows that. We know that. What this means is that instead of simply making calls to heads of state using nebulous language that might or might not sound guilty, Trump’s gloves will come fully off. Donald Trump can and will use the military to retaliate against his foes, including those in state power. He will use the military to stop anyone who attempts to collect him for any state incarceration.
Not only will Trump play the innocent victim card as hard as possible on all media outlets and call out state officials by name so his followers will seek them out, he will also send in the military to collect and then detain and/or jail anyone who tries to bring him in, placing these people into federal prisons. Will these people get trials? No. Why? Because Trump will have unraveled the need to use the judicial system to find anyone guilty. Indeed, he will make himself judge, jury and executioner (such that that term means) over all Federal legal actions. All he will need to do is pen a missive that someone is guilty and off to Federal prison they go without a trial.
You might be thinking that these ideas are all far fetched, that Trump will never be able to assert that type of authority. If Trump gets back into power as President, he will have that authority because the voters who voted him in willed that power to him. This folks is what a dictator looks like. This is how a dictator acts.
It Doesn’t Affect Me!
Yes, absolutely it does. If Trump becomes arbiter over all federal legal matters effectively disbanding the courts, even the tiniest of federal infractions could lead to federal prison time and/or death, all at his or his assign’s whims… yes, for any citizen. Even if you haven’t managed to commit any federal infractions, but you wrote something Trump disliked on social media, this could land you in prison. Think of Alexei Nivalny being placed in prison because of Vladimir Putin didn’t like what Nivalny was saying…. you’ll quickly get the idea of where Donald Trump will take America.
Weissmann’s Delusion
Andrew Weissmann is under the incredible delusion that the judicial system will hold and somehow continue to work as it normally has after Donald Trump regains power as President. Weissman’s rationale and thinking is so incredibly wrong. Donald Trump has already stated he will gut the Constitution and its powers. He will fully take the gloves off and begin systematically dismantling the U.S. Constitution at its core including the Legislative and the Judicial branches of government. Trump will usurp the powers of both the Legislative and Judicial branches and make them his own, probably disbanding all courts and Capitol Hill. Trump will become all three branches in one.
Cabinet
Will Trump’s cabinet allow this? Sure. Trump is filling his little black book with names of those people who are fully willing to do his bidding. In his last term, he failed to find people willing to make these hard choices. If Trump manages another Presidential term, he will most certainly surround himself this time with people fully ready, willing and able to fulfill Trump’s every wish and desire… no matter the cost to America, to the Constitution or to you, the voters.
State Powers
Once the Constitution is gutted, the idea that States have any say under his dictatorship will evaporate. Congressional representatives? Nope. They’re history. Trump will then make it so that if the state authorities don’t immediately bow to his wishes, they won’t remain state authorities. In fact, I fully expect that Trump will immediately remove any state authorities who don’t agree with his Presidency. In fact, I then further expect Trump to reassign his own cronies to operate those same state authorities under federal purview.
That means that once Trump begins running not just the Federal government, but also every State government, he can commute any sentence he likes, including any state sentences that might be pending against him.
State Legislatures
What does this mean for states, state voting and state legislatures? It means they’re gone, history, expunged from existence. Donald Trump absolutely cannot allow states any manner of power that overrides his own authority.
Thus, Weissmann’s analysis of Donald Trump’s state legal woes is incredibly premature and could even be considered incredibly naive. The only way Donald Trump manages to become incarcerated under state law (assuming he is found guilty) is if he is NOT reelected as President in 2024. Only at that point will Donald Trump be forced to surrender to authorities under this current legal and constitutional system. If Donald Trump becomes President again, there will be no Constitution or, indeed, any state law under which to hold Donald J. Trump accountable for anything; not now, not ever.
Vote as if your life depends on it
If you still don’t believe Donald Trump is capable of the above, then you’re even more deluded than Donald Trump. However, if you’re invested in your current way of life, in your family and indeed, the current system, constitution and rule of law, then you need to vote as if your life depends on it; because it does. A vote for Donald J. Trump is a vote to dismantle the United States.
If you want your children to have a future in the same way that you had a future when you were a child, then you need to vote to maintain our current way of life. What that means is NOT voting for Donald J. Trump. Further, you shouldn’t vote for ANY GOP candidates because they are all tainted by Donald Trump’s ideals… and wish the same harm to America that Trump does.
In the 2024 Election, that leaves voting for Independents, Libertarians and Democrats. Whatever you do, DO NOT vote for anyone in the Republican party unless you want to see America, your current way of life, your family and any money that you have saved all end.
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A gag order won’t work on Trump
Trump is quite the chatterbox! This guy has about as much respect for the law and the judicial system as a cat has for water. Trump genuinely thinks he’s the star of his own show, that rules simply don’t apply to him.
Judges might as well be invisible, because their orders go in one ear and out the other! If you’re thinking a gag order will shut him up, you might as well try silencing a parrot with a whisper. Let’s dive into the delusional world of Trump and his disregard for legal boundaries. Grab your popcorn, folks, let’s explore!
What is a gag order?
A gag order is an order, typically a legal order by a court or government, restricting information or comment from being made public or passed onto any unauthorized third party.
In other words, a gag order is a legally binding order against an individual by a judge that if breached will cause the judge to apply penalties against the person who breached the order. The penalites could include fine and/or jail time. If the gagged person is indicted and out on bond pending trial, that bond could be rescinded and the person could be remanded into custody, then placed into jail and detained until the trial.
Donald Trump’s Mouth
The difficulty is that Donald Trump cannot shut up. He’s a voluminous talker and will not allow anyone to prevent him from speaking, least of all people who work for the agencies he believes to be corrupt.
What exactly does that mean for a gag order from the Department of Justice? It doesn’t mean a gag order will work. It does mean that that the government will have to end up making some hard choices. The only thing that issuing a gag order will do is cause Trump to breach it, thus the reason for those hard decisions.
From Trump’s so-called “raid” on Mar-A-Lago (which wasn’t a raid at all), we already know Trump doesn’t respect such legal matters and simply won’t abide. The question is not whether Trump can respect a gag order, it’s whether Jack Smith and the Justice Department are willing to rescind Trump’s bond after Trump breaches the gag order to then place him into protective custody until the Justice Department’s trial. Yeah… unlikely.
Why rescinding Trump’s bond is important!
The only way Trump can truly be gagged is to place him into protective custody until the DOJ (or any other) trial commences. Additionally, while in protective custody, Trump must be forced to surrender all of his electronic devices and have no contact with anyone until the trial begins. Unless (or until) this step is taken, Trump will not stop attempting to interfere with the trial including tampering with evidence, destroying evidence, tainting or coercing witnesses, threatening judges and threatening or tainting the jury pool.
Trump’s being under 4 indictments for many different alleged criminal activities has not cooled Trump at all in performing even more criminal activities. The average person placed under criminal indictment would stop doing whatever it was that got them there. Not Donald Trump.
Why is he continuing? Because Trump absolutely 100% wants to ensure that he will not receive a fair trial. Trump is doing everything in his power to ensure that his trial is entirely problematic and unfair from the start. That means that during trial or even after it, he will have sufficient evidence to prove that the trial wasn’t handled in a fair and equitable manner claiming that the jury judgement must be thrown out. It doesn’t mean that a judge will agree with Trump, but he’ll keep appealing all jury decision (assuming guilty) all the way to the Supreme court (where Trump has a lot of “friends” who will likely rule in his favor).
Presidential Election
As we should already know, Trump is again running for President in 2024. The difficulty is that Trump seems intent on using his campaign as a crutch to keep himself out of prison… or more specifically out of detainment before trial. That doesn’t mean he doesn’t want to be President again. He does. But… that won’t stop him from using his campaign as a means of preventing his detainment in jail pending trial.
As it is now, Trump is out on bond for all of his pending trials. Bond agreements stipulate that any further violation of laws or of court orders may result in rescinding that bond which means remanding the person into custody.
Trump’s Legal Woes
Just to be crystal clear, Trump is now facing 4 criminal trials, two of them federal. Let’s enumerate each of them now:
- Jack Smith’s Federal trial involving Classified Documents. This indictment contains 37 felony counts.
- Jack Smith’s Federal trial involving the January 6th Insurrection. This indictment contains 4 felony counts.
- Fani Willis’s trial involving Georgia State Election Interference. This RICO indictment contains 13 felony counts against Donald Trump, but also includes more counts against 18 other co-conspirators.
- Alvin Bragg’s trial involving Falsifying Business Records in New York State. This indictment contains 34 felony counts.
For more information on each of these trials, Politico has a good article on this.
Daring the Courts to Take Action
Trump is intentionally taunting the justice department, every judge and every prosecutor presiding over his court trials by inciting his cabal into action. By taunting, I mean calling out his cabal of goons to dox and death threaten these officials performing their jobs. There is also no sign of him stopping this behavior.
In fact, if Trump is given a true gag order, there is zero doubt he will breach that gag order, not once, but many, many, many times. It’s not a matter of if, it’s a matter of when… but that’s not what matters.
What matters is how each trial judge will handle the breaches and what decision they will make involving those breaches. There are 4 pending trials, but only one trial judge can put him behind bars until their trial. If that judge is the one presiding over the federal trial, how will the 3 other trials proceed if he’s stuck in federal detainment?
It’s worse than simply just detaining him. Trump is absolutely begging the judges to attempt to gag him because he knows they won’t detain him in jail pending trial. They know that these judges do not have the spine to place a Presidential candidate behind bars pending trial. If the gag orders don’t work, and they most certainly will not, then what besides protective custody? Fining Trump again is fruitless. Not only will he not pay that bill, he won’t stop talking.
Gag orders won’t work because they simply can’t work on Donald Trump. With anyone else, a breached gag order for someone indicted would instantly lead to detainment in jail pending trial. With Trump, that’s not easily possible.
Again, it’s not what Trump does after he breaches a gag order, it’s what will each of the trial judges and the indicting prosecutors do when he does… and he most definitely will.
Will they attempt to detain him? Likely not.
Will a fine work? Definitely not.
Will Trump stop talking? No.
Where do we go from here?
Clearly, the prosecuting attorneys and the judges will have some intense soul searching to do. How do you reign in a person in this situation? Either they’ll need to devise a creative new solution or they’ll have to let Donald Trump slide.
I’d love to see these judges remand Trump into custody pending trial. However, I just don’t see that happening. No judge is likely willing to put their own career on the line to jail a former President… especially when he’s the purported front runner of the GOP. I personally don’t think that makes any difference. If a person has committed an alleged crime, then they need to be treated as any other person, regardless of their present role or aspirations.
The only clear choice for penalities is to move the trial up after each breach. Just as Judge Chutkin warned Trump, so too must Jack Smith and every other trial judge. For each breach Trump makes against a gag order, the trial gets moved earlier by one month. It’s the only solution to this dilemma. If they can’t or won’t jail him and take away his voice, then they must penalize him in other ways that hurt his chances at trial.
Trump should be sitting in pretrial detainment today. He shouldn’t even have been given a bond. On the campaign trail? Too bad, so sad, not my (or anyone else’s) problem other than Trump. If Trump wanted to be on the campaign trail, he should have ensured he didn’t break any laws prior to getting there. Pretrial detainment is the only answer to get Trump to comply with a gag order. Unfortunately, it will likely never happen.
Overall, these judges must make some hard choices if they wish to retain civility in their courts. Trump is intent on turning every trial into an unfair circus. It is the judges who must determine the best way to reign in Trump, but it is also crystal clear that Trump will not abide by any traditional legal approaches.
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Should I install Instagram’s Threads?
If you’re looking for guidance on installing any new software, you should always review the privacy policies, data retention policies and methods of deleting that data for any company providing a service. Let’s explore.
Instagram and Meta
Meta, the parent company of Facebook, wholly owns Instagram and now the new companion app released for Instagram called Threads. Threads is not a new app. It is, in fact, an old Instagram app that was discontinued in 2021… only to be born anew in 2023 with a new Twitter-like interface.
The problem with this app isn’t that it looks and feels like Twitter, but that is a problem which might born legal issues for Meta. No, the problem with Threads is who owns and operates this app.
If you already have an Instagram account and you enjoy using it, adding on Threads is likely not a problem. You likely already understand the pitfalls of owning an Instagram account.
On the other hand, if you have dropped using Facebook and Instagram and WhatsApp and all other apps produced by Meta, then downloading Threads is out of the question.
Data Retention and Data Removal
We already know that Meta never removes any data on request. The best that Meta will ever do is disable an account. That’s it. Data stored on Meta’s servers remains there forever. Meta never purges data not even upon request.
What that means is that if you’re on the fence about installing Meta’s new Threads, you should be extremely cautious about installing this app and agreeing to those services. Threads may look like Twitter and act like Twitter, but the data you input into Threads will be stored and collected by Meta forever.
Even users who have attempted to delete Threads data or their account have already run into a roadblock over this issue.
Another, who already apparently signed up, was similarly displeased: “We can’t delete our threads account without deleting our Instagram? They knew people would instantly hate it so they made it a saw trap.”
Source: Fortune
What that means is that if you already have an established Instagram account, you cannot delete anything you write into Threads without also deleting your Instagram account. Be cautious when thinking about installing Threads.
Knowing Who You Are
Because Meta acts much like LexisNexis in data gathering involving its users both on and off Meta’s sites, Meta can easily correlate all of their stored data and know exactly who you are just by having their app installed on a specific phone device. This means that there is no way to hide who you are from Meta. Meta’s data aggregation and collection goes way beyond normal and into the frighteningly dangerous territory.
It’s even worse than it sounds. Meta collects data on everyone it possibly can, whether they have an account on Meta’s platforms or not. What this means is that if you become a new user to Facebook, Meta will find and link any previously collected data about you to your new Facebook profile. You may think your account is new, but in reality Facebook might have years worth of purchase history, web browsing history and other rather creepy, stalking data about you now attached to your brand new account profile. All of this data you have absolutely no control over. You might not even know that it’s attached as Meta is great at hiding the fact that they perform data collection and aggregation in the first place.
What does this mean for Threads?
Threads may seem like an innocent application to install, but because of the sheer ugly way that Meta handles its user’s data, it could actually turn into a nightmare for you. It only takes one “problematic” Threads message and you may end up with real world consequences. Attempting to delete your Thread data seems impossible at the moment.
Deactivation
What Meta typically tends to offer is hiding of data. What that means for you is that if you deactivate your account, the best that Instagram offers at this moment is that your Threads data should no longer remain visible to the Internet through Meta’s interfaces. However, your data still sits on a Meta server somewhere for a data breach to occur and be leaked to the public.
What deactivation means is no security at all. It simply covers Meta’s method of wanting to retain all data it collects, but at the same time attempts to placate users by hiding that data from prying eyes, at least for this moment in time.
Data Value and Threads
Unfortunately, Meta values its storage and aggregation of data more highly than it does user privacy. This means that should you choose to install and use Threads, you’re at the mercy of Meta’s lack of data privacy. As I said above in the deactivation area, it’s all about placating the user instead of actually doing the correct thing and expunging data on request.
It’s clear that Meta never expunges data. In fact, asking to have your Facebook account deleted doesn’t work. A Facebook account is never deleted. It is simply deactivated. Even if you fill out the correct forms and request a total data purge from Meta’s servers, Meta simply won’t do it.
How do I know? Because I still, to this day, receive emails from Meta requesting that I reactivate my Facebook account. If Meta had actually purged all of my data, that would include purging my email address from their system. Yet, they STILL haven’t done so in the 8 years since I requested my Facebook account deletion. Facebook still sends me emails!
Threads
What exactly is Threads? Threads is a reincarnated and redesigned version of an older app that Instagram had formerly released, but that shut down in December of 2021. This older Threads app was pulled from the platform and, or so we thought, was gone until today. Today, July 6th, 2023, Threads has been reborn as a Twitter clone.
I have never used the older Instagram version of Threads, so I cannot tell you how it worked or how close it might have been to Twitter’s interface. However, this 2023 version of Threads, by all accounts, mimics Twitter far too closely. Threads is actually so close to working like Twitter that Elon Musk is now threatening Meta with lawsuits over the release of Threads. I have no sympathy for Elon or Twitter as of now. I dumped Twitter months ago and haven’t looked back. If Elon is suffering at the hands of Meta’s Threads app, that’s really a problem of Elon’s making.
If Elon had continued to produce a robust, safe, trustworthy social networking application, Threads couldn’t succeed. Clearly, Elon’s Twitter is completely failing at being a “safe space.” Thus, Threads is taking off like wildfire.
This statement about Twitter’s lack of safety is not meant to imply that Threads is a “safe space”. Oh, no no no. It’s way too early to know exactly where Threads will land on the safety spectrum as yet, but I have my doubts.
Data Grab Twitter Clone
Twitter clones are not a new thing. Truth Social looks and acts far too much like Twitter. I don’t know why Musk hasn’t chosen to sue Donald Trump over Truth Social. Yet, Elon Musk feels the need to throw down the gauntlet on Meta? Unfortunately, since Musk’s takeover, Twitter has become a toxic cesspool of hate with right wing MAGA extremists.
Further, it also seems that Musk has slowly fallen into the MAGA right wing extremist camp himself, to the detriment of Twitter remaining a “safe space”. Musk had originally proclaimed to be mostly center politically, but his MAGA conspiracy actions have spoken far louder than any of his hollow words when claiming Twitter is a safe social space. To be honest, Twitter will remain an unsafe social space so long as Musk remains at the helm.
Twitter Killer?
Will Threads be the Twitter killer? Perhaps in a short term. Users flock to anything that’s new, particularly when the current mainstay is so completely toxic, inappropriately managed and is effectively being run into the ground. Anything that seems more stable and less toxic is likely to garner a lot of attention. Unfortunately, toxicity exists everywhere, including within Meta’s app spaces.
Jumping out of Elon’s Twitter dumpster fire and into Threads; this is simply just another dumpster fire in the making. It’s new, yes, but it’ll just as quickly become a toxic cesspool of hate speech. It remains to be seen if that toxic cesspool becomes a liberal hate ground or a conservative hate ground. The only way Threads can avoid the hate speech outcome is to ban political speech entirely on Threads.
If people want to talk politics, they would need to go somewhere else. Unfortunately, Meta doesn’t have the ambition to do that. Removal of political speech would remove too many people from their platform. Meta can’t afford to alienate that many people. Thus, it’s only a matter of time before Threads becomes the new place for political hate speech. That kind of hate speech is likely to come to Threads sooner rather than later. It’s highly unlikely that the Instagram team is prepared for the onslaught of garbage speech, moderation and removals required for what will become the new toxic application to hang out on.
Dumpster Fire
Unfortunately, Threads is already a dumpster fire and it doesn’t even yet know it. Meta understands what it takes to operate a large platform, but it clearly doesn’t understand how to properly manage social discourse. If the moderation tools in Threads are anything like Twitter… moderation which requires involvement of an Instagram staffer, then Threads will fail as spectacularly as Twitter.
The only way Twitter, or at least a platform like Twitter, can survive is to change the entire way it handles microblogging. Instead of requiring Meta’s staffers to handle removal requests, Meta should push the burden and consequences of moderation success or failure onto the thread creator. What this means is that as soon as a person creates a top level thread, it becomes that producer’s responsibility to police what’s said in that thread.
Of course, there will be reporting options to report clearly violating speech to Meta. However, the thread creator will need to handle the burden of dealing with any comments. If a user in the thread begins spewing hate speech, the thread creator should be responsible for taking care of that user’s speech and removing it, not Meta. If the thread creator fails to manage the thread, then the thread creator will get penalized for that lack of management… meaning, throttling, banning and ultimately suspension.
If you write microblog texts that elicit such negative user interactions and you choose to do nothing about those responses, then you as thread creator take equal blame when those comments are reported and removed by Meta. This forces the burden onto you, the thread creator, to limit who can comment on your threads to avoid such negative engagements.
Additionally, moderation tools need to drastically improve. Meaning, if a user comments, the comments should be held in a moderation queue until the thread creator can approve, delete or report the comments. If the thread creator must take the burden of comments in a thread, then moderation tools are required to help the thread creator manage those comments.
Unfortunately, I’m fairly certain that Threads didn’t design their app this way. Instead, it likely works just like Twitter, where Meta staff are required to manage bad actors.
Real Names
One thing that Meta does that Twitter doesn’t do is require the use of real names on its platforms. This means that if you sign up for any Meta service, you are required to supply your real name. This means that when using Meta’s services, your real name is easily seen. Whether Threads allows the user to hide this information is currently unknown, but I’d guess not.
Will this blog author sign up for Threads?
No. I’ve already pulled myself out of Meta’s universe of apps. I have no intention of signing up for Instagram simply to use Threads…. only to put myself right back into Meta’s garbage system all over again? No, I will not sign up for Threads.
Would I recommend anyone else to sign up for Threads?
No. Meta’s application universe is so majorly problematic (you can’t delete your Threads account without deleting your Instagram account), I can’t recommend anyone to sign up for or use any services that Meta supports, especially if you value your family’s privacy. Meta’s top apps to avoid include:
- Threads
- OculusVR
- Onavo
- Beluga
It’s also worth noting that Meta owns many, many small subsidiaries that you should avoid as well. Check out this list to see what other apps you should avoid. If you’re really, really interested in testing what Threads is all about, then I’d strongly recommend signing up for a brand new Instagram account under a different email address. Unfortunately, Instagram may determine that you already have another Instagram account and link them together. Be careful.
However, it should now be crystal clear that Meta’s newest Threads is a must avoid.
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Did Elizabeth Holmes get the correct sentence?
As we should already know, now-disgraced and convicted CEO Elizabeth Holmes operated Theranos. Theranos was to offer the world a fantastical new way of testing people’s health concerns for all manner of blood diagnostics all with the tiniest drop of blood. It’s fantastical because Elizabeth Holmes’s Theranos was never able to make this testing technology actually work (the entire basis for the fraud). Ms. Holmes has now been convicted of wire fraud and defrauding investors, a federal crime. More than this, Ms. Holmes has now been sentenced to serve 11 years in a federal prison.
NBC News Opinion
One NBC opinion piece, written by a former federal prosecutor and current attorney, Andrey Spektor, contends that Elizabeth Holmes’s 11 year sentence is too harsh. This author does not agree. Why? Because of the nature of and, more importantly, the real dangers posed by the device she failed to create.
Andrey’s contention is:
But that calculation was the least important component of determining Holmes’ sentence because the judge ultimately disagreed with the probation estimate and, anyway, no rational judge would have sentenced her to anything approaching life in prison. Among other things, she is a first-time, nonviolent offender whose crime did not lead to anyone’s death.
I contend that this highlighted statement is, at best, inaccurate and is, at its worst, false. There may actually have been illness and death as a result of Theranos’s deception, when the Theranos “Edison miniLab” machine (pictured)
, did not work as purported and likely impacted medical treatments needed (or weren’t needed, as the case may be) for medical patients. For Andrey to contend that no one died (or by extension, weren’t injured or hurt), that’s incredibly wrong thinking.
Ms. Holmes’s deception impacted many people’s health; health which relied on accurate testing results from Theranos’s Edison miniLab machine. Without accurate testing results, the wrong medications could have been prescribed, the wrong treatment plans could be implemented, up to and including not prescribing medications which could save people’s lives… or indeed the opposite may have occurred; the wrong prescription may have been prescribed causing injury or potentially death. Claiming her fraudulent testing equipment couldn’t cause harm is fallacious and disingenuous. Worse, according to the whistleblowers, Ms. Holmes knew that her miniLab testing equipment didn’t work!
Dangers to Society
The fact that the Edison’s machine’s deception was “caught early” is of no consolation to those who received inaccurate test results from Theranos’s intentional equipment deception. In other words, you can’t just play “god” with people’s lives and health and expect to get away with it.
To claim that her defrauding and misleading and intentional deception about her alleged testing methodology, which clearly did not work properly (or at all), didn’t impact people’s health and lives is insulting to those who could have lost their lives to Theranos’s medical fraud. Even still, some still could lose their lives early because of Theranos.
That the fraud was caught early because of two conscientious whistleblowers within Theranos employee ranks is more a testament to those two individual’s forthright and upstanding conscience than of Elizabeth Holmes coming clean about the dangers the Theranos Edison ultimately posed to society. Elizabeth Holmes would likely have continued to play this dangerous game if those two whistleblowers hadn’t come forward. It wasn’t Elizabeth Holmes who “came clean” on the wrongness of her equipment. It was those two Theranos whistleblowers who put their careers in jeopardy to save the lives of others.
11 Year Sentence
For all of these reasons above, I vehemently disagree with Andrey Spektor’s opinion. Elizabeth Holmes’s 11 year sentence is not at all inappropriate or too long. In fact, I’d say her sentence was downright lenient considering the danger she, Theranos and her fraudulent testing equipment posed to society as a whole. If her equipment’s fraud had not been found early, we could have gone perhaps a year or two or longer without knowing how many people might have been misdiagnosed, given the wrong medical treatments or, indeed, given no treatments at all for preventable, but fatal illnesses if left untreated. In short, Elizabeth Holmes (and her fake testing equipment) was (and is) a danger to society.
I contend that 11 years is way too lenient for that level of danger and risk that she and Theranos posed to the world. She doesn’t deserve leniency for having committed this level of medical malfeasance against the public at large. While one can try and argue that the trial wasn’t about her medical malfeasance specifically, the fraud fully stemmed from that malfeasance. Thus, any malfeasance must be considered as part of the sentencing. It can’t be “distanced” or “separated” as though it didn’t exist. That malfeasance was the entire reason Elizabeth Holmes’s machine was found to have caused the defrauding of investors. Eye on the ball, people.
While a trial for the affected patients was not allowed to move forward, that doesn’t preclude the absolute sheer negligence and willful malfeasance Holmes performed against an unsuspecting public. Elizabeth Holmes knew her machine didn’t work. Yet she STILL went ahead with placing it into Walgreens knowing its problems. That’s not innocent happenstance; that’s willful malfeasance and, at worst, malevolence. Conscientious people don’t put other people in harm’s way intentionally. Elizabeth Holmes put people in harm’s way. One might want to call that blind ambition. Call it what you will. Blind ambition can still result in someone doing the wrong things for the wrong reasons, even knowing that the outcome might cause harm to others. That can’t be dismissed with an 18 month sentence (as Ms. Holmes has requested), a mere slap on the wrist.
No, the 11 year sentence by federal sentencing Judge Edward Davilla was definitely of a sufficient length as to give her pause AND send her a solid message for what Theranos and she had done to the public… even if not specifically stated by judge Davilla; this judge knew the stakes.
Babies as Shields?
One thing Elizabeth Holmes appears to also be shrewd at is trying to get out of her 11 year sentence. She’s now attempting this by getting pregnant. There’s absolutely nothing wrong with starting a family… but on the heels of beginning an 11 year federal criminal sentence? I get that her biological clock is ticking, but it primarily says she’s using an infant as a shield. That’s not a good look and it fully supports the above malfeasance. She’s putting her baby in harm’s way to protect herself from going to prison, or at least so she hopes. It’s a crude and crass way to begin prison… and it leaves her kids in the lurch without a parent for 11 years.
She knew she had been convicted, yet she chose to get pregnant anyway? A judge should have held her in contempt of court over that. When Holmes’s first child was born, her trial had not yet begun. Thus, there was no way to know which way her trial might go. Her second child, however, is simply being used as a pawn against incarceration. That’s both a nasty and very vile reason to have a child. It doesn’t show compassion for the child, it shows self-preservation by Holmes. It’s an incredibly uncaring and self-centered tactic, especially for a baby that’s now caught in her manipulative crossfire. As I said, distasteful.
She’s now delivered her second child, but it’s almost certain she’s working hard to conceive a third as yet another shield. Enough’s enough here. If she pops up pregnant again, cite her for contempt of court, let her carry that child to term in prison and give birth to that child behind bars. The sentence was issued and it must be carried out. Having a baby shouldn’t become a “get out of jail free” card… not for her, not for anyone. Worse, babies should never be used as incarceration blockers.
Judges should make it perfectly clear to any convicted felon who decides to conceive a baby after conviction means possible contempt of court and that neither the pregnancy nor the birth will stop the incarceration from occurring. Playing these games with the court should always mean contempt of court and possible longer incarceration time.
Did Elizabeth Holmes get the correct sentence?
No, but not for the reasons Andrey Spektor proposed. In fact, Ms. Holmes got a far more lenient sentence than she should have been given considering the real medical dangers both she and her testing machine imposed on society. Ms. Holmes should count herself lucky at receiving only 11 years. Let’s hope that when she gets out of prison, she doesn’t try to start yet another dangerous “medical testing” company.
As for those 11 years Ms. Holmes faces? This amount of incarceration also sends a clear message to other would-be CEOs not to play with people’s lives using untested medical technologies in the goal of gaining personal fame, wealth or for any other reason.
Editor’s Update: Elizabeth Holmes began her 11 year sentence as of May 30th, 2023 at the minimum security facility for females Federal Prison Camp (FPC) located in Bryan, Texas. Her final bid to remain out on appeal was denied. Elizabeth Holmes’s federal inmate register number is 24965-111.
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Are Trump’s final Pardons legal?
The United States Constitution has very specific language defining how and when the Presidential power of pardons and reprieves can and cannot be used. Let’s explore.
Constitutional Language
From Article II, Section 2, here is the language that defines the President’s powers. Note, styles have been added for clarification purposes.
The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States; he may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices, and he shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.
U.S. Constitution => Article II => Section 2
At the end of this paragraph, we have an exception to and limitation of the previous power, “grant reprieves and pardons”. Some might argue that this exception covers the entire paragraph describing his powers as a whole, but this exception immediately follows the definition of the President’s aforementioned “grant reprieves and pardons” power. While the exception may cover all of his power in a logical sense after full impeachment AND conviction and having been removed from power, it doesn’t make sense to cover all of his powers while he still holds office after impeachment, but before the trial. He must still remain commander in chief of the Army and Navy of the United States, for example.
Instead, I believe that this specific language, because it appears directly after the “grant reprieves and pardons” language is intended to narrowly apply solely to the power of granting reprieves and pardons, not to the entire paragraph.
Logically, this interpretation makes the most sense because you wouldn’t want a President who is in the process of being impeached to flurry pardon both himself and those who might have been involved, thus nullifying the entire impeachment proceeding. Meaning, the power given to Congress to impeach the President must not be allowed a loophole by the President to avoid impeachment.
Trump’s Pardons and Reprieves
While the language of the constitution is clear on what powers the President has, it has exclusions when specific powers are unavailable to the President as defined just above.
Let’s examine Trump’s flurry of pardons on the way out of office. Because of the way the constitution language is written, it seems that Trump’s final flurry of reprieves and pardons on the way out, but which occurred after his second impeachment on January 13, 2021 may not be constitutionally valid or legal. According to the constitution, the President forfeits the power of reprieves and pardons “in cases of impeachment” or, more specifically, during impeachment proceedings.
One can argue that Trump lost this power during his first impeachment. He did. However, that impeachment ended in acquittal… thus restoring all powers to him that he would have lost between the House’s impeachment, but before the Senate trial concluded in acquittal. If he had made any pardons during that impeachment period in 2019, those would also be constitutionally invalid.
Our Framers’ Logic
The framers of the constitution would have logically understood the impeachment process fully. After all, they designed it. The framers understood that impeachment is a two step process requiring both the House and the Senate to participate. They also understood that because these two houses must work together to complete the process, there could be delays between the time the House approves their impeachment resolution and the time the Senate begins and concludes the impeachment trial.
These same framers also understood that because of the time required to complete the impeachment process in full, the President could use his power of pardons and reprieves to nullify the very reason for the impeachment itself. To avoid this design flaw in the process, the framers included the clause ‘except in cases of impeachment‘ to limit the use of this Presidential power during impeachment proceedings and thus avoid the possibility the President could pardon himself or others and nullify the entire impeachment.
Legal vs Illegal Pardons
The point to all of this is that President Trump, at the time before he left office, was still under impeachment proceedings. This clause in the constitution would then suspend Trump’s power of reprieves and pardons until the impeachment had reached full conclusion: acquittal or conviction.
Because Trump’s impeachment is still ongoing as of this article (and was at the time of his exit from office), any reprieves and pardons he signed after the House passed its Article of Impeachment would be constitutionally illegal and thus, null and void.
If Trump had remained in office after conclusion of the Senate’s impeachment trial AND if the trial resulted in his acquittal, his power of reprieves and pardons would be restored. He could have then reissued those reprieves and pardons to make each of them legal and valid. However, Trump is no longer President as his term has ended. His ability to reissue those reprieves and pardons has ended. This means that all of the reprieves and pardons that Trump issued after January 13th, 2021 are constitutionally invalid and must remain invalid in perpetuity.
President Joe Biden, the now current President, could reinstate those reprieves and pardons on Trump’s behalf if he so chooses, but that would require Joe Biden to agree to reissue those specific reprieves and pardons on behalf of Donald Trump.
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Apple and Law Enforcement
Apple always seems to refuse law enforcement requests. Let’s understand why this is bad for Apple… and for Silicon Valley as a whole. Let’s see how this can be resolved.
Stubbornness
While Apple and other “Silicon Valley” companies may be stubborn in reducing encryption strength on phones, reduction of encryption strength isn’t strictly necessary for law enforcement to get what they need out of a phone device. In fact, it doesn’t really make sense to reduce encryption across all phone devices simply so law enforcement can gain access to a small number of computer devices in a small set of criminal cases.
That’s like using a sledgehammer to open a pea. Sure, it works, but not very well. Worse, these legal cases might not even be impacted by what’s found on the device. Making all phones vulnerable to potentially even worse crimes, such as identity theft and stealing money in order to prosecute a smaller number of crimes which might not be impacted by unlocking a phone doesn’t make sense.
There Are Solutions
Apple (and other phone manufacturers) should be required to partner with law enforcement to create a one-use unlocking system for law enforcement use. Federal law could even mandate that any non-law enforcement personnel who attempts to access the law enforcement mode of a phone would be in violation of federal law. Though, policing this might be somewhat difficult. It should be relatively easy to build and implement such one-use system. Such a system will be relatively easy to use (with the correct information) and be equally difficult to hack (without the correct information).
How this enforcement system would work is that Apple (or any phone vendor) would be required to build both law enforcement support web site and a law enforcement mode on the phone for law enforcement use only. This LE support server is naturally authentication protected. A verified law enforcement agent logs into Apple’s LE system and enters key information from/about a specific device along with their own Apple issued law enforcement ID number. Apple could even require law enforcement officers to have access to an iPhone themselves to use FaceID to verify their identity before access.
The device information from an evidence phone may include the iPhone’s IMEI (available on the SIMM tray), ICCID (if available), SEID (if available), serial number, phone number (if available) and then finally a valid federally issued warrant number. Apple’s validation system would then log in to a federal system and validate the warrant number. Once the warrant is validated and provided the required input data specific to the phone all match to the device (along with the Apple’s law enforcement ID), Apple will issue a one-time use unlocking code to the law enforcement agent. This code can then be used one time to unlock the device in Law Enforcement Mode (LEM).
To unlock an evidence device, the agent then boots the phone into LEM (needs to be built by Apple) and then manually enters an Apple-generated code into the phone’s interface along with their law enforcement ID. The law enforcement mode then allows setup and connection to a local WiFi network (if no data network is available), but only after entering a valid code. The code will then be verified by Apple’s servers and then the phone will be temporarily unlocked. Valid entry of a law enforcement code unlocks the device for a period of 24 hours for law enforcement use. There is no “lock out” when entering the wrong code when the phone is in “law enforcement mode” because these codes are far too complex to implement such a system. Though, the phone can reboot out of LEM after a number of wrong attempts. You simply can’t randomly guess these codes by trial and error. They are too complex and lengthy for this.
This specific one-use code allows unlocking the device one time only and only for a period of 24 hours. This means that phone will accept that specific code only once and never accept that specific code again. If law enforcement needs to unlock the phone again, they will have to go through the law enforcement process of having Apple generate a new code using the same input data which would then generate a new code, again, valid for only 24 hours.
A successfully used LE code will suspend all phone screen lock security for a period of 24 hours. This means that the only action need to get into a phone for up to 24 hours (even after having been powered off and back on) is by pressing the home key or swiping up. No touch ID or Face ID is needed when the phone is unlocked during this 24 hour period. This allows for use of this phone by multiple people for gathering evidence, downloading information or as needed by law enforcement. This mode also suspends all security around connecting and trusting iTunes. iTunes will also allow downloading data from the phone without going through its “trust” security. After 24 hours, the phone reboots, deletes LE configuration parameters (such as WiFi networks) and reverts back to its original locked and secured state.
The iPhone will also leave a notification for the owner of the phone that the phone has been unlocked and accessed by law enforcement (much the same as the note left in luggage by the TSA after it has been searched). If the phone still has Internet access, it will contact Apple and inform the Apple ID that the phone has been unlocked and accessed by law enforcement. This Internet notification can be suspended for up to 30 days to allow law enforcement time enough to get what they need before the system notifies the Apple ID owner of access to that device. Though, I’d recommend that Apple notify the owner right away of any access by law enforcement.
How to use the code
When a valid generated Apple law enforcement code is entered into the phone in LEM, the phone calculates the validity of the code based on an internal process that runs on the phone continuously. While the phone is validly being used by its owner, this process will periodically sync with Apple’s LE servers to ensure that an iPhone’s LEM process will work properly should the phone fall into the possession of law enforcement. This information will have to be spelled out and agreed to in Apple’s terms and conditions. Apple’s servers and the phone remain synchronized in the same way as RSA one-time keys remain synchronized (within a small calculable margin of error). Thus, it won’t need to synchronize often.
How to use Law Enforcement Mode
This mode can be brought up by anyone, but to unlock this mode fully, a valid Apple issued law enforcement ID and one-use code must be entered into an iPhone for the mode to unlock and allow setup of a WiFi network. Without entry of an Apple issued law enforcement ID number or because of successive incorrect entries, the phone will reboot out of LEM after a short period time.
Law Enforcement ID
A law enforcement ID must be generated by Apple and these IDs will synchronize to all Apple devices prior to falling under law enforcement possession. To keep this list small, it will remain compressed on the device until LEM successfully activates, at which time the file is decompressed for offline validation use. This means that a nefarious someone can’t simply get into this mode and start mucking about easily to gain entry to a random phone. It also means someone can’t request Apple issue a brand new ID on the spot. Even if Apple were to create a new ID, the phone would take up to 24 hours to synchronize… and that assumes that the phone still has data service (which it probably doesn’t). Without data service, the phone cannot synchronize new IDs. This is the importance of creating these IDs in advance.
Apple will also need to go through a validation process to ensure the law enforcement officer requesting an ID is a valid officer working for a legitimate law enforcement organization. This in-advance validation may require a PDF of the officer’s badge and number, an agency issued ID card and any other agency relevant information to ensure the officer is a valid LE officer or an officer of the court. This requires some effort on the part of Apple.
To get an Apple law enforcement ID, the department needing access must apply for such access with Apple under its law enforcement support site (to be created). Once an Apple law enforcement ID has been issued, within 24 hours the ID will sync to phones, thus activating the use of this ID with the phone’s LEM. These IDs should not be shared outside of any law enforcement department. IDs must be renewed periodically through a simple validation process, otherwise they will expire and fall off of the list. Manufacturers shouldn’t have to manage this list manually.
Such a system is relatively simple to build, but may take time to implement. Apple, however, may not be cool with developing such a law enforcement system on its own time and dime. This is where the government may need to step in and mandate such a law enforcement support system be built by phone manufacturers who insist on using overly strong encryption. While government(s) can legislate that companies reduce their encryption strength on their devices to avoid building a law enforcement system as described, instead I’d strongly recommend that companies be required to build a law enforcement support and unlocking system into their devices should they wish to continue using ever stronger encryption. Why compromise the security of all devices simply for a small number of law enforcement cases? Apple must meet law enforcement somewhere in the middle via technological means.
There is also no reason why Apple and other device manufacturers are denying access to law enforcement agents for phone devices when there are software and technical solutions that can see Apple and other manufacturers cooperate with law enforcement, but yet not “give away the farm”.
I don’t even work for Apple and I designed this functional system in under 30 minutes. There may be other considerations of which I am not aware within iOS or Android, but none of these considerations are insurmountable in this design. Every device that Apple has built can support such a mode. Google should also be required to build a similar system for its Android phones and devices.
Apple is simply not trying.
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