Outpost of Freedom blog

Freedom of the Press #9
“Prior Restraint”

Gary Hunt

Outpost of Freedom
February 22, 2017  – George Washington’s Birthday

In the previous article, though suggested in the government’s Supplemental Memorandum in Support of Government’s Motion For an Order to Show Cause, of February 7, 2017, it really didn’t get to the heart of “Prior Restraint”.  So, let’s get to the heart of that matter.

Let’s start with the law that explains the potential severity of publication of certain information, in a case similar to what the government and Judge Anna J. Brown are attempting to construct against me.  Section 793 (e) of the Espionage Act was cited as the authority by which the government attempted to impose “Prior Restraint” on the New York Times for publishing what was known as the “Pentagon Papers”.  The Papers had been leaked to the press by a government employee who had signed a non-disclosure agreement (not just based upon a Protective Order), which precluded that employee from divulging any information protected by Section, 793 (e):

Whoever having unauthorized possession of, access to, or control over any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted, or attempts to communicate, deliver, transmit or cause to be communicated, delivered, or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it.
… Shall be fined under this title or imprisoned not more than ten years, or both.

There, in a rather large nutshell, is the extent of the government’s authority to impose upon a party limitations in communicating certain information, and/or retaining and/or not delivering it to the government.  However, as we shall see, even that did not have the effect implied in the wording of the Act.

To understand the legal limitations of government’s authority, we need to look at New York Times Co. v. United States 403 U.S. 713 (1971).  The case taken up by the Supreme Court included a similar action brought against the Washington Post.  The cases were joined and the Supreme Court granted certiorari, in which the United States sought to enjoin the New York Times and the Washington Post from publishing the contents of a classified study entitled “History of U.S. Decision-Making Process on Viet Nam Policy.”  Prior to the Supreme Court decision, the District Court for the Southern District of New York, in the New York Times case, and the District Court for the District of Columbia, and the Court of Appeals for the District of Columbia Circuit in the Washington Post case held that the Government had not met that burden of proof.

The Second Circuit Court of Appeals overruled the District Court in the New York Times case, putting a stay on publication on June 25, 1971.  The Supreme Court then ordered that the stay be vacated.

Now, before we go on, this is not about the source that provided the information to the newspapers.  It is solely about the right of the press to publish what it had obtained, regardless of the source.  With that in mind, we must take the reader back to a statement in the Supplement Memorandum (linked above), which states:

The government is not seeking the testimony of third-party Gary Hunt to identify the source or sources of the protected discovery information. The government intends to investigate that on its own. The government is merely seeking the removal of protected discovery material that this Court has ordered protected. Nothing about Gary Hunt’s blogging[sic] activities is implicated by the Motion to Show Cause. Third-party Gary Hunt is continuing to disseminate protected discovery material in the face of three Court Orders. No privilege is implicated.

This demonstrates the similarity of the parties in New York Times Co. and the current situation.  In neither case is the source of the information sought, though there can be little doubt that in both cases, the government was investigating the source.

. Continue reading ‘Freedom of the Press #9 – “Prior Restraint”’ »

Freedom of the Press #8
“Qualified Press Privilege”

Gary Hunt
Outpost of Freedom
February 21, 2017

In Freedom of the Press #6 – “Tilting at Windmills” – Redux, I address the jurisdictional issue that the government addressed in their Supplemental Memorandum in Support of Government’s Motion For an Order to Show Cause, of February 7, 2017.  Due to the length of the Supplement, and the length of #6, I chose to address two remaining issues in a subsequent post.  Those two issues, Prior Restraint and Qualified Press, will be addressed in that order.  From the Supplemental Memorandum:

IV. There Is No Prior Restraint Issue or Qualified Press Privilege
A. There Is No Prior Restraint Issue Presented Here

This Court has the authority to issue protective orders protecting criminal discovery and, specifically, confidential source information. The substantial government interest in protecting confidential sources is long established. See Roviaro v. United States, 353 U.S. 53 (1957). This substantial government interest is unrelated to any suppression of expression and outweighs Hunt’s First Amendment rights. No one has challenged the legitimacy of the Court’s Protective Order, and to permit a party to end run the order by passing the information to a blogger threatens to undermine criminal discovery and the interests identified in Roviaro—i.e., if we cannot protect the confidentiality of our law enforcement informants, we cannot expect their cooperation in future investigations.

We are not asking this Court to restrain Hunt’s ability generally to write about the case— or even the informants—we only want him to observe this Court’s Order, which means that he cannot publish the discovery material subject to the Court’s Order. This discovery material was not in the public domain in any form. This Court should be able to enforce its Protective Order and prohibit wide dissemination of discovery which includes confidential FBI reports. See Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984) (an order prohibiting dissemination of discovered information before trial is not the kind of classic prior restraint that requires exacting First Amendment scrutiny). Besides Seattle Times Co. there are no cases that discuss the prior restraint issue in the context of sealed and protected discovery information in the context of a criminal trial. In United States v. Noriega, 917 F.2d 1543 (1990), the issue was the balance between a defendant’s Sixth Amendment Right to a fair trial and the First Amendment interests asserted by CNN. The Noriega Court held that CNN should not be able to violate a court order and litigate at the same time. Hunt has waived any First Amendment defense by defying the Court’s Orders.

Let’s address these underlined items, one at a time.  First, we will look at Roviaro.  Although I have addressed Roviaro, before, it is worth revisiting, since the government seems to rely heavily upon that decision.  Here is what they said:

This Court has the authority to issue protective orders protecting criminal discovery and, specifically, confidential source information. The substantial government interest in protecting confidential sources is long established. See Roviaro v. United States, 353 U.S. 53 (1957)

The government asserts that they have a right to protect the identity of informants with a protective order.  They have made this assertion, before, though they appear to have not yet read the decision nor understand the ramifications.

. Continue reading ‘Freedom of the Press #8 – “Qualified Press Privilege”’ »

Freedom of the Press #7
“Judicial Discretion” and Tyranny

Gary Hunt
Outpost of Freedom
February 20, 2017

Let’s review this whole situation from the beginning.  After all, it has taken a month and a half to get to this point, so perhaps a refresher is in order.

On January 5, 2017, I was hand served a “Cease and Desist Letter” by an FBI agent.  Since the service was disclosed on Facebook, I wrote a “Statement with regard to  the Freedom of the Press“, on January 6.  That was followed with a series entitled “Freedom of the Press“, beginning on January 7 entitled Freedom of the Press #1 – Meeting with the FBI.  The following day, January 8, I explained the Cease and Desist Letter with Freedom of the Press #2 – Cease and Desist.

These events were preceded by a number of articles that I had written in the “Burns Chronicles” series.  In those articles, I exposed FBI informants associated with the occupation of the Malheur National Wildlife Refuge outside of Burns, Oregon.  The information used to identify and expose the informants was derived from some Discovery documents I had obtained.

The original Protective Order, dated March 24, 2016, lays out the restrictions placed upon certain described individuals.  Those prohibited from “disseminating” information contained in the Discovery are described in that Protective Order:

ORDERED that, pursuant to Rule 16(d)(1) of the Federal Rules of Criminal Procedure, defense counsel may provide copies of discovery only to the following individuals:

(1) The defendants in this case;

(2) Persons employed by the attorney of record who are necessary to assist counsel of record in preparation for trial or other proceedings in this case; and

(3) Persons who defense counsel deems necessary to further legitimate investigation and preparation of this case.

Upon my indicating to the FBI agent that hand-delivered the Cease and Desist Letter, that it was not applicable to me, the government filed a Motion to Enforce Protective Order (Expedited Consideration Requested), dated January 6, 2017.  That Motion states:

Pamala R. Holsinger, Assistant United States Attorneys, hereby moves this Court for an order enforcing the Protective Order against a third party illegally in possession of protected sensitive discovery materials in this case.

Now, the wording of the Protective Order says nothing about a third party, nor does it say anything about the possession of the material is illegal.  If it were illegal, it would be against the law.  However, you can only be in violation of a Protective Order if you are among those to which the Order applies.

The government makes a rather interesting statement in that Motion, “This Court has jurisdiction to enjoin a non-party from disseminating confidential documents produced in reliance upon and subject to this Court’s Protective Order.”  However, they cite a Second Circuit Court decision, Eli Lilly & Co. v. Gottstein, 617 F.3d 186, which I addressed in a subsequent article.  It does not corroborate their claim, to the contrary, it supports the limited jurisdiction that I had already stated exists.

The Motion is supported by an Affidavit, of the same date.  That Affidavit refers to some of my articles.  In so doing, they have entered those articles, which would include the entire series, into the Court’s record.  Those specifically mentioned were from “Burns Chronicles”, to include #40, #41, and #49.  Also quoted is my statement regarding the “prohibited material” taken from #40.  That statement serves as prima facie evidence of my intent.  But, the government is insistent upon twisting the truth, in order to create a wholly different characterization of my actions.  This would allow them to charge culpability on my part.

Let’s get to the heart of the matter. To do so, I will be referring to FBI documents that I have obtained. They are marked, at the bottom left comer, “Dissemination Limited by Court Order”. So, let me make this perfectly clear- I have no intention of “disseminating” the documents, nor am I bound by any “Court Order”. I am writing about a Public Trial, which was held in September and October 2016

I had been working on a response to that Affidavit and its erroneous presumptions, though I never completed it (maybe I will, when time allows), when the government came back with a Supplemental Memorandum in Support of Motion to Enforce Protective Order, dated January 10, 2017.  That Motion has a rather interesting statement made when they refer to the Affidavit filed in support of the Motion.  It states:

In a Facebook post regarding the FBI’s February 5, 2017, visit to Gary Hunt to serve the cease and desist letter, a person asks “who is Gary Hunt?” On defendant Duane Ehmer’s Facebook account a response is posted, “He is working with our lawyers.”

The Ronnie Walker Affidavit in Support of that Motion, also filed on January 10, 2017, states:

On January 6, 2017, another individual posted a question on that same page asking “Who is Gary Hunt?” That same day, the message “He is working with our lawyers” was posted in reply from defendant Duane EHMER’s Facebook account. Sarah Redd-Buck and Duane EHMER’s Facebook accounts are not private and can be viewed by anyone accessing Facebook.

So, the Motion states, “He is working with our Lawyers” is a response to the question, “Who is Gary Hunt?”

On the other hand, the Affidavit states “a question on that same page asking, “Who is Gary Hunt?”.  Then states, “He is working with our lawyers” were posted in reply from defendant Duane EHMER’s Facebook account.”

Now, there is a subtle difference between the two, however, the Affidavit is more accurate than the statement made on the Motion.  Perhaps we should go to the source and see what was really said (this image is taken from the Affidavit):

Well, son of a gun, the question was actually asked a full 17 minutes after it was answered.  Who would believe that the FBI (Ronnie Walker) and the US Shyster (See Freedom of the Press #6 – “Tilting at Windmills” – Redux) would attempt to mislead the Judge?  This sequence begs a question, just to whom is Ehmer referring to by “He”?

. Continue reading ‘Freedom of the Press #7 – “Judicial Discretion” and Tyranny’ »

Burns Chronicles N^o 57
Collusion or Conspiracy?

Gary Hunt
Outpost of Freedom
February 4, 2017

On October 27, 2016, shortly after the very just verdict of “Not Guilty” was announced in the Ammon Bundy, et al, Group 1 trial, a meeting was held in the Mark O. Hatfield Federal District Courthouse.  The 12 jurors, Judge Anna Brown, and a court reporter, attended the meeting.  It lasted about one and a half hours.

It is my understanding that such a meeting is not unusual.  However, circumstances surrounding this particular meeting are, to say the least, quite unusual, considering context.  That is exactly what we are going to do.

The first irregularity occurred when the Prosecutor moved to have the trial declared “complex”, which allowed the Court to circumvent the right to a speedy trial and to break the defendants up into two groups.  The first Group (mostly leaders) was tried in September and October 2016, and the second Group to be tried beginning in February 2017.  While the delayed trial date was agreeable, as the Defendants needed the additional time to prepare their defense, one drawback is that many of the Defendants were held in custody until the verdict was reached, in the first trial.  The latter trial date made the government’s case easier, as they had smaller groups to try, and it gave time to elicit plea bargains, thereby reducing the number who would be prosecuted at trial.

Next, during the pre-trial “paper chase”, with hundreds of motions filed, answered, and finally ruled on, there is no doubt that bias existed on the part of Judge Anna Brown.  Behind the scenes, many of us followed this legal maneuvering for months.  It seemed that even when the arguments presented by the defense were well supported, Judge Brown would still rule against the defense and in favor the Prosecution.

During the trial, there were rather strict rules imposed on the defense, especially when they sought to call additional witnesses to testify.  Judge Brown ruled that to allow that would be “repetitive”.  However, the prosecution showed a 1-minute video of approximately twenty of the occupiers firing across a canal.  The fact that the Prosecution showed that footage four times, however, was not considered “repetitive”.

Finally, and here we get to the meeting, Judge Brown called all of the participating jurors into the meeting, after dismissing the alternate jurors.  In that meeting, she explained that she would answer their questions, if they had any.  She also asks some questions, and explained that the answers would help the prosecution and the defense.  So, just how could it help the defense?  The Defense prevailed.  It could only help the Prosecution gain insight into the jurors’ minds in order to determine what they would need to overcome to obtain guilty verdicts in the Group 2 trial.

Some jurors indicated that had the charges been less serious, like simple “misdemeanor trespass”, it would have been much easier to render a guilty verdict.

Let me interrupt, for a moment, and point out that the Judge holds office under Article III (Judicial Branch of Government), and is, in essence, an impartial referee.  Her job is to “administer law in a court of justice”, “to control the proceedings”, and to make “decisions of questions of law or discretion”.  Her job is not to favor one side over the other, but rather to stand aside, interjecting only to the extent necessary to assure a fair trial.

. Continue reading ‘Burns Chronicles No 57 – Collusion or Conspiracy?’ »

Burns Chronicles N^o 56
Is a Misdemeanor a Crime? or, Is the Court a Crime?

Gary Hunt
Outpost of Freedom
January 29, 2017

Perhaps we should start with Article VI, clause 2, of the Constitution of the United States of America:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

Now, that is easy to follow and understand.  First, “This Constitution“, and, next, “the Laws of the United States which shall be made in Pursuance thereof“, “shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby.”

Article V of the Constitution states that when an Amendment is ratified, it “shall be valid to all Intents and Purposes, as Part of this Constitution.”  “Shall” is mandatory.  It is imposed, without recourse, and must be obeyed.  The requirement that any “Laws… which shall be made in Pursuance thereof” precludes any enactment, statute, or rule, to be in violation of the intent of the Constitution and the Laws made Pursuant to it

In a previous article, “To Jury, or, Not To Jury“, the Sixth and Seventh Amendments were discussed.  Now, let’s go to the top, the Constitution itself, and see what it says.  This led to the more descriptive wording in the Sixth and Seventh Amendments.  This case has to do with misdemeanor charges of trespass, tampering with vehicles or equipment and destruction of property.  This is the Article that established the Judicial Branch, Article III, § 2, clause three:

The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury…

The subsequent Amendments set no limit on criminal charges and a minimum of twenty dollars in civil actions, each requiring a jury trial.  The Amendments made clear, without ambiguity, that any case tried in a court of the United States must fall within those two described areas.  There are no exceptions.

However, this Court, appearing to be inquisitorial rather than just, has opted to circumvent those limitations imposed upon judiciary, by the very document that created the judiciary.  It has put in place, by two methods, a means of deception, whereby the Court can circumvent the Law of the Land.  Chicanery, defined as “deception or trickery, especially by the clever manipulation of language”, is certainly involved in this current circumvention and “inquisition”.

First, chicanery is often used in the “case law method”, where higher court decisions are based upon previous decisions, not necessarily in accordance with the Constitution.  This method began being applied in 1872, shortly after the Civil War.  Harvard University set forth the “method”.  It has since become what appears to be the primary foundation for decisions, most often, without regard to the Constitution.

. Continue reading ‘Burns Chronicles No 56 – Is a Misdemeanor a Crime? or, Is the Court a Crime?’ »

Burns Chronicles N^o 34
“shall enjoy the right… to have
compulsory process for obtaining witnesses in his favor

Gary Hunt
Outpost of Freedom
October 17, 2016

As I watch these events unfold, I often compare them to the Constitution, as it is written — so that any man could understand it. But, when I try to fit the puzzle pieces into that image of what our Founding Fathers envisioned for us, they just don’t seem to fit.

The had decades of experience of the British government, whether Parliament or the Ministers, slowly encroaching upon their historical rights. So, when it came time to leave the Articles of Confederation behind, and to form a new limited government under the Constitution, they reflected on those encroachments, and both within the Constitution and the Bill of Rights, provided such limitations as they saw fit. Their purpose was to exclude any governmental authority that could subordinate those rights.

In this instance, the amendment that we should concern ourselves with is the Sixth. It reads:

In all criminal prosecutions, the accused [not defendant] shall enjoy the right… to have compulsory process for obtaining witnesses in his favor.

Putting that aside for a moment, we need to consider a couple of phrases that are probably well recognized, with regard to legal proceedings. First is “preponderance of evidence“, which is most often associated with civil actions, where there is not a crime, rather, a determination of which side is most likely to be correct in their claims.

Next is “beyond a reasonable doubt“. Now, this is only applicable to criminal cases and requires that the jury is unanimous in their determination of the guilt of the accused party. However, this doesn’t mean that when a criminal trial has “facts” that are in question, that the preponderance method shouldn’t be applied.

Let’s look at it this way. Suppose Witness “A” says that the Accused did something, and then Witness “B” says that they did not. Both are supposed to be relying on their personal knowledge, though there is always the question of the interpretation of an observation. Now, with both “A” and “B” providing conflicting “facts”, which shall the jury accept as proof?  Suppose, however, that there were a number of other observers to those facts. Let’s say that we have Witnesses “C”, “D”, “E”, “F”, & “G”. Wouldn’t their testimony provide the jury the means to more readily make a determination as to what appears to be the correct “fact”?

. Continue reading ‘Burns Chronicles No 34 – “shall enjoy the right… to have compulsory process for obtaining witnesses in his favor”’ »

Burns Chronicles N^o 31
Public Lands – Part 3
The Queen Has Ruled – Off With Their Heads

Gary Hunt
Outpost of Freedom
September 29, 2016

In two previous articles, Shawna Cox brought the matter of Jurisdiction to the Court.  The first, explained in “Public Lands – Part 1 – It’s a Matter of Jurisdiction“, was filed in response to the government’s “Motion for Judicial Notice” (1229), providing proof of ownership of the land upon which the MNWR headquarters sit.  In that Motion, filed September 9, 2016, they cited no previous motion to which they were responding.

Shawna, based upon a chain of title that she had received, had no dispute with the ownership.  However, neither the government’s request for judicial notice and attached documentation nor the chain of title provided any indication that the land, which both parties agreed, had been in private hands before the government reacquired it, had been ceded back to them by Oregon.

Shawna then filed her “Response to and Motion for Judicial Notice Regarding Ownership & Ceding of the MNWR Headquarters Area” (1245).  In that Motion, she stipulated the government’s ownership and asked the Court to take Judicial Notice that the subject lands had not been ceded back to the federal government by Oregon.  The Motion was quite simple and simply stated that since no proof of ceding had been provided, the Judicial Notice was in order.

The government then filed its Response (1272) to a number of motions, including Shawna’s Motion.  Geoffrey A. Barrow, the attorney that signed the Response, apparently has a reading disorder.  Shawna never contested the government’s motion for judicial notice.  Instead, she stipulated that they did own the land.  However, he chose to read into her motion what he thought the Judge might like:

Cox opposes the government’s request (ECF No. 1229) and, in turn, moves for judicial notice consistent with the separately filed McIntosh Declaration (ECF No. 1252). McIntosh repeats the adverse possession theories that this Court has already rejected many times, although he reads the government’s Houghton Declaration (ECF No. 1230) as further support for his views. McIntosh’s theory is that the federal government simply could not have obtained lawful title to the MNWR absent permission from the state. His theories are contrary to the law that this Court has already recognized controls this issue, and his stated credentials (i.e., his stated directorship of two web-based, environmental-sounding organizations) reveal that he is an advocate who shares defendants’ misguided views. (One organization promises to give a “strong voice that will dominate and control state and federal bureaucrats”).
Cox’s counter-Motion for Judicial Notice should be denied.

Now, Shawna never mentioned “adverse possession” in her motion – she simply sought judicial notice that the land had not been ceded back to the government.  This is quite consistent with what the government had cited in their judicial notice, when they said:

Federal Rule of Evidence 201 permits this Court to take judicial notice of adjudicative facts “not subject to reasonable dispute.” The Advisory Committee Note to the rule explains that “adjudicative facts” are those that “relate to the parties, their activities, their properties, their businesses.” Courts routinely take judicial notice of recorded property records.

Now, the government has proffered no argument establishing that Oregon had ceded back jurisdiction to the federal government.  If it had been ceded back, then it would have, as required by the Statute of Frauds, been recorded in the public records.  There is no argument, except the false association with Ammon’s motion, which would be cause for the Court not to take “Judicial Notice”.

. Continue reading ‘Burns Chronicles No 31 – Public Lands – Part 3 – The Queen has Ruled – Off with their Heads’ »