Author: TSA Press

HARARE – Zimbabwe lawmaker Job Sikhala, vice-chairman of the opposition MDC party, was on Tuesday charged with treason after allegedly saying the party would overthrow the government before the next election, his lawyer said.

“He has been formerly charged with attempting to overthrow the government unconstitutionally,” his lawyer Obey Shava told AFP, saying his client denied the charges.

Zimbabweans have little faith in the economic record of the ZANU-PF government, which was led by President Robert Mugabe until 2017 when he was ousted in favour of current President of Zimbabwe Emmerson Mnangagwa.

The country has recently endured another bout of sharply rising prices, with official inflation now at nearly 100 percent – the highest since the hyperinflation era when it hit 500 billion percent.

Since early May, a terrifying ordeal has been playing out in San Francisco. A journalist, Bryan Carmody, had his home raided by the San Francisco police department after he refused to divulge a confidential source. This was an objectively deplorable raid for a couple of reasons.

First, in the infamous Pentagon Papers case, members of the United States Supreme Court noted that “[b]oth the history and language of the First Amendment” supported the view that the press must “be left free to publish news, whatever the source, without censorship, injunctions, or prior restraints.” In the press world, Bryan Carmody “is what’s known as a stringer,” a person who collects material and provides it to news organizations. In other words, Carmody is not a source; he is, by his very nature, a reporter of information and deserving of First Amendment protection. Secondly, California has a shield law that protects the confidentiality of Carmody’s sources.

Given the First Amendment implications and the state specific protection, the fact that not one but two judges signed-off on the raid of Carmody’s home amounts to nothing less than a judicial disgrace. A disturbing failure by the California magistrates to adequately protect a journalist from unjust detainment and gross abuse of state power. The judicial sign-off to the raid is also the product of a grossly abused Fourth Amendment standard that lacks meaningful judicial oversight and is regularly satisfied by incredibly flawed evidence with absurdly high error rates.

The only encouraging fact about the Carmody story is that in an era where the current president regularly calls the press the enemy of the people, the state’s actions towards Carmody have been almost universally condemned, including by right-wing leading publications. The undeniable result of the widespread condemnation is that Carmody had his documents returned, and the police were forced to concede the raid and the warrants were illegal. In another case involving a publisher of information however, and one that you might have heard of involving Julian Assange, the widespread reaction to the actions of the government could not be any more different.

For those who are unaware, Julian Assange is the head of Wikileaks, an organization that regularly publishes dangerous and damning material, and that the CIA describes as a “non-state hostile intelligence service.” Just recently, Assange was charged by the United States for multiple felonies and again, unlike the Carmody story, many instead view the government’s actions as justified. For example, to David French at the National Review, Assange should not even be considered a member of the press. This is because, as French argues, Assange isn’t doing “what the ‘media’ should do, unless you think the media should publish sailing schedules of troop transports in the face of a submarine threat — or that the media should publish military plans on the eve of an offensive.”

The fundamental problem with French’s view, as pointed out by Jacob Sullum at Reason, is that whether Assange behaves as a member of the traditional media or not is irrelevant. First Amendment protection is thankfully not based on a categorical and vague distinction of “media.” An originalist, historical analysis of how freedom of press was understood at the time of the founding reveals that constitutional protection was intended for all who utilize the written word for mass publication.

Accordingly, to those such as Sullum, the prosecution of Julian Assange represents a troubling assault on the free press, akin to what happened to Carmody, per Sullum:

Counts 9 through 17 involve “disclosure of national defense information,” a felony punishable by up 10 years in prison. That penalty applies to anyone who “willfully communicates, delivers, transmits or causes to be communicated” such information to “any person not entitled to receive it.” This felony is the bread and butter of any journalist who covers national security issues and publishes information that the government would prefer to keep secret.

As First Amendment scholars have noted, that statute squarely applies to indisputably valuable journalism such as publication of the Pentagon Papers.

Although I agree with Sullum that the statute he references is far too broad and unconstitutionally criminalizes a core function of the press, I disagree that Assange cannot be held criminally liable for his actions at Wikileaks.

To be absolutely clear, it is not the act of Assange publishing factual national defense information that I find to be criminal. If that were the case, then every major publication in the country can be classified as a criminal organization and the free press would cease to exist. The criminal act that could be properly attached to Assange, in my opinion, is his alleged “active participation” in the theft of the information published by Wikileaks. As part of its indictment, the Department of Justice is alleging that Assange tried to help Chelsea Manning hack into classified systems. If true, this sort of active participation goes beyond simply publishing information and thus, beyond the scope of protection afforded to the press by the constitution.

Unfortunately, it appears that the prosecution of Assange goes further than his alleged assistance in the theft of the information and seeks to criminalize the publication of information. Therefore, even if an important distinction between the actions of Carmody and Assange can be made, the prosecution of Assange remains every bit as troubling and dangerous to freedom of the press as Sullum claims.

Tyler Broker’s work has been published in the Gonzaga Law Review, the Albany Law Review, and is forthcoming in the University of Memphis Law Review. Feel free to email him or follow him on Twitter to discuss his column.

President Cyril Ramaphosa has said he will discuss Zimbabwe’s energy woes with Eskom, adding that boosting the supply of electricity to SA’s northern neighbour requires a “balancing act”.

The president was speaking on the sidelines of the 12th Extraordinary Summit on the Continental Free Trade Area in Niger, after discussions with his Zimbabwean counterpart, President Emmerson Mnangagwa.

Zimbabwe started implementing rotational load shedding in May, due to a combination of low water levels at Kariba Dam’s hydroelectric power plant, generation constraints at ageing power stations and limited foreign imports.

In an interview with the state broadcaster the Zimbabwe Broadcasting Corporation, Ramaphosa said he had had a “wonderful meeting” with Mnangagwa. He said one of the issues discussed was energy.

“They [Zimbabwe] have been going through a massive drought and as a result they need energy and obviously they would like South Africa to support. President Mnangagwa requested for further support and this is the type of thing that we are going to discuss with Eskom,” he said.

Ramaphosa said the fortunes of SA’s struggling power utility and energy supply in the Southern African Development Community were linked.

“Therefore as we go through our own challenges we have to do a balancing act to see how best we are able to support them but at the same time look after our own interests,” he said.

Last week Zimbabwe paid Eskom $10m. It still owes the SA utility about $23m.

Zimbabwe is facing a shortfall of about 600 MW of electricity and load shedding can cause power to be out for as long as 24 hours in some places.

Zimbabwe, meanwhile, is also having talks with Mozambique on increasing imports of electricity.

Post published in: Business

Ed. note: This is the latest installment in a series of posts on motherhood in the legal profession, in partnership with our friends at MothersEsquire. Welcome Tiffany Hendrix Blackmon to our pages.

As I walked into the first day of the bar exam, a wave of nausea hit. It was not test anxiety. It was morning sickness. At 9 weeks pregnant, I was as concerned about managing my first trimester symptoms as I was with remembering anything about the rule against perpetuities.

Law school prepared me to take the bar. Nothing had prepared me for breaking into the legal field while becoming a mother. I was not close with anyone who had been pregnant while taking the bar. I looked online and found minimal resources. There were occasional articles about women who were pregnant or had a baby during their 3L year, but most of the time the articles focused on why women felt pressured to have a baby before they began their career. The articles didn’t talk about the logistics — how did these women actually manage their symptoms, balance appointments and studying, etc.?

I read through message boards, and found women who shared stories about their time preparing for and taking the bar while pregnant or with a young child. These message boards were the only resource I found that gave any concrete examples and ideas. I learned that you can request accommodations for the bar, but it required completing paperwork and waiting for approval.
Since I was so early on in pregnancy, I didn’t know what symptoms I may have or what accommodations I may need. I wondered, why is no one talking about this topic? Why is there not more assistance available to help women excel in their career while also building the life they want at home? It seemed that I was supposed to strive for the elusive work-life balance without ever being able to talk about my actual life.

Taking the bar while pregnant is not unheard of, it is just not commonly talked about. Studying for the bar (the first time), likely looked a lot like most people’s schedules who were studying while working. I listened to lectures on an app during my commute to and from work. I used flash cards and outlines to study during my breaks. After work and on weekends, I watched lecture videos and took practice tests. It also included naps when I got too tired, and breaks when I was too nauseous. I kept peppermint candies and crackers with my study materials, to try to keep the nausea at bay.

I made it through the first day of the bar without any issues. The second day, my nausea was too much to handle. My “morning sickness” had never confined itself to a specific time of day, and by the afternoon I had to call it quits. I answered every question, but couldn’t focus at the end, and didn’t look over my answers. I left, feeling defeated.

When I looked online and saw that I had not passed, I wasn’t shocked. When I got the letter that I had failed by one point, I was extremely frustrated. Yet, I also knew I could pass. I made the choice to retake in February, since our son was due right before the exam. I enjoyed maternity leave with our son, but also began studying part-time during my leave. I continued studying part-time until July 1, when I made the choice to quit my job. I studied full-time until the exam.

This time, I didn’t just blindly follow the schedule given to me by a bar prep company. I took a critical look at what I could do to use my time most effectively, so I could spend time with my family, study, and pass the bar. I’m a visual learner, and not an auditory learner. Instead of listening to audio lectures and videos, I made color-coded outlines. I created and used charts to study. I spent far more time taking practice tests, and focusing in on the subjects where I was testing poorly. I fit the studying in during our son’s naps, and while he spent time with family members. Best of all, he happily snuggled with me while I read him my outlines. There were certainly challenges, when it was hard to balance caring for a baby who didn’t want to sleep or was fussy, and I worried I would fail again due to time I lost studying. But during my study breaks, I also had the joy of seeing him roll for the first time. He started smiling and laughing. I knew that the sleep deprivation, countless hours studying, and wonderful study breaks would be worth it.

Finding out that I had passed the bar was an amazing moment. I look forward to hearing stories from moms who studied for the bar while cradling their baby bump or cuddling their baby. I don’t want the only stories we hear about to be when women go into labor while taking exams. I hope that we can begin more conversations about how we can support women in building their legal careers as well as supporting them in building the life they want at home.

Tiffany Hendrix Blackmon practices law in Portland, Oregon. She is the Co-Chair of the Oregon Bar’s Pro Bono Committee, and enjoys volunteering in the community. She is married with two sons, a three-year-old and a six-month-old. In her free time, she can be found baking, having family dance parties, trying new restaurants and watching medical dramas. You can connect with her on LinkedIn.

Donald Trump says his biggest regret in office is not, you know, renuclearizing Iran or supercharging a human rights crisis at the border, but the decision to appoint known Jeff Sessions to the Justice Department. Trump’s complaint with Sessions boils down to “he actually followed black letter law” and recused himself from the Russia investigation since he had personally met with Russian officials as a Trump campaign flunky.

Conspiracy theorist-cum-AG Bill Barr wasn’t going to do that to Trump! Barr was the kind of guy willing to read the incredibly detailed Mueller report and just make up stuff in a four-page memo.

So Trump was likely shocked this morning when he learned that Barr has recused himself from the Jeffrey Epstein prosecution that directly implicates the sitting Labor Secretary who has already been benchslapped for his “material omissions” in giving Epstein a sweetheart deal and attempting to stifle public access to the evidence.

We’re not saying that Acosta is going to be charged in this case, but what we are saying is that the case is being run by the group that charges elected officials so… yeah.

Sure, Barr testified that he’d recuse himself from matters involving his former employer Kirkland & Ellis, but did anyone actually believe he’d really do it when his department actually put a cabinet official in the crosshairs? Or, for that matter, Trump himself, as the big guy has been apparently been fingered as a “material witness” by folks close to the investigation.

Barr is notably not recusing himself from any new charges against Epstein since those wouldn’t necessarily involve anything his Kirkland & Ellis partners worked on. But any inquiry into the original deal is ethically off limits for Barr, which means Acosta isn’t going to have Barr in his corner if this case goes down that road.

But any new charges that might, say, implicate Trump will have to go through Barr. Because of course that’s how this would end up.

AG Barr recuses himself from Jeffrey Epstein case, citing past legal work [Fox News]
Barr Won’t Recuse Himself From New Case Against Jeffrey Epstein [Bloomberg]

Earlier: Jeffrey Epstein’s Arrest Forces Us To Ask: Which Dirtbag Lawyers In This Case Will Face Their Own Music?

Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

Here at Above the Law we care a lot about increasing transparency at Biglaw firms — that’s why we spend so much time reporting on bonuses and salaries and benefits. And while reporting on the market standard and leaders will always be a part of our mission, we also want to hear about what it’s like to actually work in the halls of Biglaw.

So, we’re asking our readers to fill out a brief survey about what they wish they knew about their firm before they started working there. We don’t care about the firm’s PR line, but about what associates really feel about the firm. We’ll be integrating the results of the survey into a new transparency project that’ll be launched later this summer.

Kathryn Rubino is a Senior Editor at Above the Law, and host of The Jabot podcast. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).

To put it all in perspective, I’ve lawyered my way through recalls, SEC investigations, layoffs, and encounters with a female exec who routinely ambushed me in the restroom and gym for legal advice (and never once washed her damned hands). I’ve been called unspeakable things by people with suspect vocabulary reserves, and I’ve had my sanity, qualifications, and legal degree questioned. Hell, I’ve questioned my own sanity, qualifications, and legal degree to the point where I’ve been one afterwork drink away from getting a “Sucker for Pain” tattoo. And despite all of this hard-earned life experience, I have to say, there’s very little about in-house practice that scares me anymore. Except auditors. Our outside auditors scare the ever-loving hell out of me.

Twice a year they descend in their muted Brooks Brothers suits and their firm-issued pinched expressions devoid of mirth and joy, reminding me of that line by The Beatles about keeping a face in the jar by the door (Thank you, Eleanor Rigby. Thank you).  And as they shuffle their papers like card sharks and prepare for their spiel which never deviates from the script, I like to play this game where I imagine what other heinous things I’d rather be doing right then. Examples include: undergoing an unanesthetized root canal, partaking in a ghost-chili pepper eating contest, listening to K-Pop, being kneecapped, and interpreting the Dodd-Frank Act without the aid of outside counsel.

And so it begins. Even though I’ve met this pair several times, they always introduce themselves and humble brag about how they practically invented the controls for Sarbanes-Oxley (and honestly, that’s a dead giveaway, because somebody who would brag about something like that is clearly evil — it’s like taking credit for the 1920s stock market crash or admitting you’re the criminal mastermind behind a Ponzi scheme or pandemic).

When Frick and Frack finish explaining how important they are to the success of our company, they remind me that their ability to do their jobs rests entirely on my ability to be honest and candid (making me wonder if these two would last a minute in my role given the tendency of my partners to floss the truth). And then they turn to the List.

The List is a series of questions designed to reveal weak spots and inconsistencies in our reporting structure. Some of the questions are purposefully redundant. I assume this is because the auditors are spot-checking my consistency and stamina. Or they’re lazy and their List is similar to a Biglaw due diligence checklist for a merger (yeah, I went there; I used to live that life, I can go there). There are standard questions about the company’s problem children (looking at you, Procurement and Sales), followed by questions about the CFO, e.g., how well do I know him, do I think he follows the rules. On average I speak less than 100 words to my CFO a quarter. Less words means I’m doing my job right. In terms of being a stickler for rules, I’m pretty sure the guy who once held up a lunch rush cafeteria line because the cashier dared to charge him an extra .18 cents for his salad dressing container is well-versed in all things rule-based. And of course, the List includes companion questions about our CEO, who if I’m lucky and doing my job right, I get to restrict my interactions to pleasantries about the most recent 8-K or the turnout for the town hall. Honestly, the man wears $1200 jeans and sports a neatly pressed pocket square. That’s beyond extra. It’s downright savage.

I keep my answers brief and to the point, never volunteering more than I have to, because who among us hasn’t watched one of those procedurals where the perp talks himself into a double life sentence and you think, if he’d just kept his mouth shut during that interrogation, he’d have gotten away with it?

Also, no humor or sarcasm with these two. They were born missing the gene that detects that kind of thing, so if you say something like, “We should just burn that department down to the ground and start over,” they’ll ask you why you think that would be an acceptable course of action. Without smiling.

But it all leads up to that final question, the question that will haunt me for days, the catch-all, the last chance to come clean, the dreaded: “WHAT KEEPS YOU UP AT NIGHT?”

And as I sit there, my mouth gone dry and my eyes searching for anywhere else to look at other than those weird fabric knots men insist on wearing as cufflinks, all I can think about is Poe’s Descent into the Maelstrom. I know, I know. It’s a terrible time to go full literary. But I’m an English major and since I can’t curl up in the fetal position, this is the next best thing. So, there I am, thinking about that unfortunate soul, shipwrecked and swirling around alone in that whirlpool, clinging to a piece of his boat and his own sanity by waterlogged fingernails, the experience turning his hair white and aging him instantly.

So, what keeps me up at night? Care to descend into the maelstrom with me, gentle reader? In no particular order…

• It’s Ray from International who talks about the good old days (by which he means the pre-FCPA days) when you could go into a country and flash a little cash to “grease the wheels.”
• It’s Sarah from HR who doesn’t think it’s a big deal that the engineering hiring manager has a type when it comes to candidates. It’s not men, okay? It’s Michigan State grads. The man has made 16 hires in my time here and they all have Sparty tattoos. What are the odds of that happening, I ask you? Slim, my friend. Slim. That man is profiling applicants.
• It’s Abe in Quality who doesn’t know what an MSDS (material safety data sheet) is or where to find one. And he’s been here for over a year.
• It’s Tim from Sales who drops by my office and tells me not to worry, that he’s already negotiated the “indumbnification” section of his agreement. (Side bar/shameless plug: for a good time, go check out my adventures with Tim in “In-House Indumbnification” and if the idea of this man negotiating an indemnification provisions still doesn’t scare you, we should hang out).
• It’s the tariff thing and the fact that no matter how fast you pivot, it’s impossible to cover all your bets when it’s this volatile.
• It’s the fear that Procurement has wrung every last dollar from our overhead, including headcount, so that people are overworked, desperate, and making bad decisions in the name of agility and speed, when really everyone is drowning in the amount of work they’re being asked to do.

But I can’t tell Marlon Blando and Blando Calrissian any of this. It’s not like any of their miracle controls could fix any of our uglies anyway. And besides, they might crawl out of their human-shaped skins and reveal themselves to be lizard people, which would definitely be an upsetting start to the morning. So, I smile just as blandly and tell them I sleep just fine at night, even as the multitude of worries that I keep — that we all keep as in-house counsel — are swirling around in my mind.

Kay Thrace (not her real name) is a harried in-house counsel at a well-known company that everyone loves to hate. When not scuffing dirt on the sacrosanct line between business and the law, Kay enjoys pub trivia domination and eradicating incorrect usage of the Oxford comma. You can contact her by email at KayThraceATL@gmail.com or follow her on Twitter @KayThrace.

* Another firm opens an office in mainland Europe in the midst of England trying to garotte its own economy. [Law.com]

* The census case is in new hands because after trying to make a real case and losing they realized there were some Jones Day flunkys hanging around so just hand it over to them. [National Law Journal]

* Opioid case moves forward. [Courthouse News Service]

* Stripping prosecutors of power to own the libs. [Inquirer]

* Since it’s a purely symbolic gesture with no impact on the day-to-day lives of New Yorkers and might land him a headline, Andrew Cuomo did a thing. [Politico]

* Law schools have screwed up. [Forbes]

* The few competent Trump judicial nominees finally move forward. [Law.com]

Zimbabweans are angry as year-on-year inflation of around 100% has eaten the value of their wages and savings, recalling the horrors of the hyperinflation era in 2008.

The southern African nation is grappling with a severe shortage of U.S. dollars, fuel, bread, medicines and 17-hour daily power cuts, which have forced businesses to use expensive diesel generators.

Currency reforms introduced last month to ban the use of foreign currencies and make the interim RTGS currency the sole legal tender have done little to instil confidence that people’s living standards will improve soon under President Emmerson Mnangagwa, who came to power after Robert Mugabe was removed in a 2017 coup.

“I have a (wage increase) figure already, and I am just waiting to hear from the unions. We will be meeting them tomorrow to hear their figures,” Ncube told a meeting with local businesses in Harare.

Ncube said the government’s budget was in surplus for the first 6 months of the year.

The lowest paid public sector worker earns 430 Zimbabwe dollars ($49.54), which unions say has been hit by inflation of 97.85% in May. A union official said a meeting would be held later on Monday to agree a position that they will present to the government on Tuesday.

As inflation soared, the government hiked the overnight interest rate to 50% last month and Ncube on Monday said the central bank wouldn’t hesitate to raise rates again to deal with people speculating on the value of the local currency.

The Zimbabwe dollar was trading at 8.86 to the greenback on the official interbank market, bringing its total losses to 27% since June 24 when the government ended dollarisation. On the black market the unit was trading at 10.5 to the dollar.

Central bank Governor John Mangudya told the same event that Zimbabwean individuals and companies held around $1 billion in foreign-currency accounts, around three months’ import cover.

The Zimbabwe Congress of Trade Unions threatened “mass action” last month after the government made the RTGS the sole legal tender and renamed it the Zimbabwe dollar.

At least three people have gone to court to challenge the government’s move but Ncube said he was “very prepared for the fight” in court.

Patrick Chivaura, acting CEO of state power utility ZESA Holdings, told the same meeting that the end of dollarisation was hurting its ability to deliver power because mines could no longer pay it in U.S. dollars.

ZESA needs $14 million for monthly electricity imports from the regional power market, Chivaura added. (Reporting by MacDonald Dzirutwe; Editing by Catherine Evans and Louise Heavens)

Post published in: Business