Kendall Coffey: Religious Freedom Is Next Legal Clash

Obama: “America is a place where you can write your own destiny. We are a people who believe that every single child is entitled to life and liberty and the pursuit of happiness. There’s so much more work to be done to extend the full promise of America to every American—but today we can say, in no uncertain terms, that we made our union a little more perfect.”


Malzberg: Alright, a matter of opinion folks, and that’s what we got from the Supreme Court of course, a matter of 9 opinions, 5–4, in favor of gay marriage nationwide. Kendall Coffey, partner at Coffey Burlington LLC, former U.S. Attorney joins us. Kendall, welcome. Let’s start with today’s ruling and boy, the dissenting opinions, each one very strong and emotional, as was Kennedy’s ruling as well.


Coffey: Yeah, I mean, really eloquent expressions. At least you know that the 9 folks working up at [unintelligible] are just brilliant minds who are very convincing and eloquent in the way they write. It was a 5–4 opinion, I don’t think it was a surprise, Steve. I think most folks saw it coming out this way indeed. I think a lot suspected that Justice Kennedy, who has a past in this area, would be the author of the opinion.


Again, you look at the dissents from Chief Justice Roberts and his dissent was really talking about not whether it’s bad or it’s good, but really who makes the decision? And his emphasis was that a lot of states through their own democratic processes are validating same sex marriage—but in a democratic republic, should that decision rest with the people acting through their elected representatives or, and I’m quoting him, “with five lawyers, who happen to hold commissions authorizing them to resolve legal disputes?” Needless to say, Justice Kennedy’s opinion was also brilliantly reading.


If I could just highlight just one issue Steve (Malzberg: Yeah, please!) that kind of intrigued me and hasn’t got a lot of attention and that’s this: because I think most expected that it would come down the way it did and extend a constitutional right to same sex marriage, but what about those whose religious beliefs are such that as private actors they do not want to participate in, for example, a same sex marriage? That’s come up a lot, and you and I have talked about that a lot. I thought there was something interesting in Justice Kennedy’s opinion that may have referred to that where he describes that the first amendment provides protection of religious organizations and people so that they have proper protection in terms of adhering to their principles. So, I think his opinion obviously is very strong and in support of same sex marriage, I thought he was signaling that there may be some interest to looking into what are the religious protections extended to those as private individuals who disagree.


Malzberg: Well, yes. And if this case were to come up to this court, I wonder if Kennedy is a swing vote, maybe he would be swing and they’d be protected. Justice Alito said that “does this mean that people are going to have to, if they have strongly held beliefs, are they going to have to whisper them in private or are they going to be accused of bigotry whether it’s at the workplace, place of employment, school, or in the community?” and that is a very frightening thing. And you and I also I think talked about that in the oral arguments, Alito asked the question, I’m paraphrasing, to the supporter of gay marriage attorney, what if we rule your way will the tax-exempt status of churches who preach that a marriage is between a man and a woman be jeopardized? And the attorney gave his opinion and said well, that could come down the road (Coffey: Yeah) so that is something we have to watch for.


Coffey: Yeah, that may be the next big issue. You and I have also talked about on this show how under some state laws, they have fined or they have punished people who, for example, did not want to participate in a gay marriage as photographers or florists or things like that based on what were apparently sincerely held religious principles and I thought that Kennedy’s opinion signaled that that may have, when that decision comes up as it likely will, that may have an outcome that respects religious freedoms.


Malzberg: Yeah, that’s very interesting—very great catch there. Kendall, always great to talk to you, sir, thank you very much.


Coffey: Have a great weekend and a great week. The best of Fridays. Thank you.


Malzberg: Kendall Coffey ladies and gentleman.


Check out the video here.

Forcing people to vote is a violation of The Constitution.

See the interview here.


Obama: In Australia and some other countries there is mandatory voting. It would be transformative if everybody voted. That would counteract money more than anything. If everybody voted, then it would completely change the political map in this country.


Malzberg: You mean fundamentally change the political map? Welcome back folks, Kendall Coffey, a partner at Coffey & Burlington LLC, former U.S. attorney, author of Spinning the Law is going to spin the law with us a little bit. Kendall: a lot of talk about the fact that the president has suggested mandatory voting…what would have to happen for that to happen?


Coffey: Well, I think Steve, you’d probably have to amend the United States constitution. I mean, voting is a fundamental right just like the right of religion is a fundamental right. But also, I think having a fundamental right means you have a fundamental right to choose not to participate. One of the reasons people don’t vote, and there are a varied number of reasons and we’d all prefer a much higher level of voting, is that they are alienated from the system and they are in a way expressing their disenchantment with what is happening in the government by not registering and not voting. So, in effect, to put some sort of legal gun to their head and to say “you gotta vote anyway” I think would be a violation of the constitution as it currently exists.


Could you change the constitution? Yeah, and then we could have a long conversation about whether that’s a good idea to force somebody to do what they don’t want to do is really a spectacular privilege in a democracy. If somebody doesn’t want to avail themselves to this great privilege and this great society then that’s their prerogative.


Malzberg: Do you agree with Judge Andrew Napolitano who said it’s a totalitarian idea?


Coffey: Well, it’s certainly not consistent with the liberty and freedom we have. Again, we’ve had a number of court cases that have stated that you have the right to practice your religion, but you also have a right not to practice a religion. So whether we agree with that or not, it is in our constitutional fabric. So, to move closer in a direction that adds things that you have to do, especially something like you have to vote, I think it’s not only unconstitutional but I think it would be a mistake.”


Malzberg: Okay, let’s move on to the Eric Garner case. A judge yesterday denied the request to release the grand jury testimony, all the details from the grand jury, and when I hear this reported it’s shock, it’s almost as if “Oh, boy they really do want to cover this thing up” when the fact of the matter is, as the judge stated somewhere in his decision: first of all, that no good reason was shown to break precedent.


It’s never, at least in New York and maybe you can tell me about the rest of the country, but grand jury testimony in New York is secret and that’s the process, so it would have been a landmark, boom-boom decision if this judge decided any other way, right?


Coffey: Yeah, and there are actually good reasons for grand jury secrecy. It can protect witnesses, people who participate. It can frankly protect people who are innocent from committing a crime of having their reputations unnecessarily tarnished. If someone is talking about you in a grand jury and nobody is going to charge you with anything because they don’t think you committed the crime, do you really want that getting out in the press?


So, I could give you a lot of examples for why it protects the investigative and prosecution processes, so we have a lot of compelling reasons. It’s a very deep tradition and if someone were making a request for grand jury notes and proceedings on someone never indicted in the federal system, it would just be seen as preposterous.


In this case, what the judge did is he looked for any example of a case where simply because something was of the public interest, and a newspaper or another media wanted it, or people were curious about it. With that and the history of New York legal judicial precedents, enough to violate grand jury secrecy? He found that it wasn’t.


Malzberg: You’ve gotta protect the witnesses too, because you know…


Coffey: It protects witnesses, it protects prosecution strategies, but you know, and I want to emphasize this, you protect a lot of innocent reputations from people whose names that sort of get tossed around into the Cuisinart and their names shouldn’t be out there and implicated when really they didn’t do anything wrong. So really, the secrecy is much much more protective of all of us than anything else.


Malzberg: Hey Kendall, I know you have a big weekend planned, you’re daughter is getting married—congratulations! Thanks for doing this and we’ll speak to you soon my friend.


Coffey: Okay, all the best.


Malzberg: Rob Williams is next with the closing bell folks.

Kendall Coffey: Hillary’s Emails, Darren Wilson’s Charges

(Video Clip of Attorney General, Eric Holder)

Eric Holder:

Our findings and our conclusions are the facts do not support the filing of criminal charges against Officer Darren Wilson in this case. Michael Brown’s death, though a tragedy, did not involve prosecutable conduct on the part of Officer Wilson.

Steve Malzberg:

Alright folks joining us now is our friend Kendall Coffey partner at Coffey Burlington and a former US Attorney in Florida.  Hello Kendall.

Kendall Coffey

Hey Steve, how are you today?


I’m great: snow and all, I know you’re in sunny Florida so I just stop rubbing it in.


It’s beautiful here. It’s 87 degrees.


I know I know.

Let me ask you this: I don’t want to talk about the police department and what they found against the police department cause that’s a separate issue. But in announcing that there were no civil rights charges burn against Darren Wilson, and if you read the whole report, their own report says, six of the most credible witnesses of the shooting of Michael Brown were afraid to give testimony in support of the police because they knew it would undercut the “Hands Up Don’t Shoot” narrative being advanced by the neighbors and by the media. They talked about how they were in fear for their lives they talked about how there were signs in the neighborhood that said “snitches get stitches.” Shouldn’t they be investigating anybody who was intimidating these witnesses, anybody posting threatening signs?


Well, if they have evidence that anyone was intimidating a witness; we all know that is a crime. It’s a federal crime. And it comes up a lot. It’s one of the reasons attorneys tell clients, who are concerned about an investigation: “Don’t go talking to other witnesses. Don’t try to influence in one way or another because the Feds can charge that as a crime of obstruction and they often do.”


So they would have to have evidence. They know there were signs. Like I said It’s in their own report. Quoting witnesses by number, not by name, about how afraid they were. They didn’t want to testify,  One woman put a couch against her door so the Feds couldn’t serve her with a subpoena. Because she was afraid she would be killed. I mean, this is bad stuff. If not the Feds then at least the media had to known what was going on. They were all planted there for weeks.


But any kind of obstruction investigation would have to center on identifying an individually guilty actor. So, it’s not enough to talk about an atmosphere, you have to talk about what a specific individual did or said what to intimidate a witness. And without that there is nothing the Feds can do about it other than raise the public consciousness and put it in a report.


Okay. So, how much trouble is Hillary Clinton in here? Y’know, her supporters are saying, “Well, she just did what Colin Powell did.” But the difference is that there was a new law put into place in ’09 and Hillary clinton became secretary of state then. so it doesn’t matter what Colin Powell did. Condalezza Rice, his successor, didn’t even use email. So she was the first one really affected by this new law. In your view from what you know, from what we all know from the news, did she break the law and how serious is this?


Well I don’t think… none of us are experts on this law; it comes up rarely. A lot of us are looking at analysis by individuals such as the former Litigation Director the national archives who said: that until the law was really clarified, which was after she left the office, you wouldn’t have a violation that could be punished or sanctioned in someway.  What I think is striking is that this issue is bringing together some interesting bedfellows because the liberal part Democratic Party would like to see this issue elevated because they’re hoping for an alternative to Hillary Clinton. Media in general, whether conservative or liberal, has a real concern when they think records might be made less accessible by any kind of public officials so we note it was the New York Times not FOXNews who broke the story. So I think the media is going to have a continuing interest in this. And there are of course the people who simply disagree with her politics who want to stay on this. So we are in the first phase of this right now, we’re still waiting to see what the explanation is why this particular approach to email with used. But do I expect any kind of law breaking type investigation or development as such: No. Do I think this is going away? I think we’re in the first phase. And remember, the next phase Steve, is going to be: What is actually in some of these emails.  Cause there are going to be plenty of people combing through there.  And then it’s going to get to another phase yet which is: are there some emails that are not included. When you look at that landscape it’s it’s not a small plot of earth it’s a widespread horizon. It could keep going.


Right, there are FOIA request that haven’t been met, the AP might sue to get information about her relationship giving Uma Abadien, the wife of Congressmen Anthony Weiner and her long-time assistant, a State Department job. They haven’t gotten those documents, Judicial Watch is suing, other groups are suing. So, for Hillary’s group to pick out the emails that they handover doesn’t seem exactly good enough.


Yeah. And again, I think both the more liberal elements of the Democratic Party and the Media itself are going to stay on this.


Okay Kendall. Great stuff. Thank you for your time, my friend, we’ll talk to you soon. Kendall Coffey, ladies and gentlemen.


From Spinning the Law with Kendall Coffey on the Steve Malzberg Show 3/5/15

Kendall Coffey: McDonnell, Dershowitz, and Ferguson

Steve Malzberg and Kendall Coffey discuss the corruption and possible appeal of former Virginia Governor Bob McDonnell, unsubstantiated claims against Alan Dershowitz and a Ferguson Grand Juror’s appeal to speak with the media.

Steve Malzberg:

Ladies and  gentleman we haven’t heard that in quite a while but I’m glad to say we’re hearing it now and Kendall Coffey, famed attorney, joins us to talk about that a lot big news today. Kendall welcome back, happy new year glad you’re here.

Kendall Coffey

Why happy new year and thanks for inviting me back and for playing our music.


That music will always be our song it’s never gets never going anywhere. Kendall, let’s start first with the former Virginia Gov., Bob McDonnell.  Today sentenced for his corruption conviction and the government  had wanted 12 years today the judge before he issued the sentence, lowered down the range because of some of the testimony he had given anyway the maximum he could’ve been I think 6 1/2 years, and he gave him two. Is this a surprise to you? Is this what you might have expected?


On no, I think it’s a surprise. I think from a defense  stand point, although they asked for no jail-time,  3000 hours of community service, . this was a very impressive result. You’ve got to think it reflects in the judges mind, the impact of more than 400 letters of providing effect testimony as to the former governor’s many positive qualities, including; a letter from the US Democrat  Sen. from from Virginia. And you wonder too if it reflects some thought in the judges mind that maybe will was done here doesn’t even remotely compare, for example, to Rod Blagojevich who got 14 years so all-in-all although this has been a disastrous experience McDonald’s as these things go it is a good outcome. And keep in mind, he has a real-live issue on appeal, which you know is he’s going to be decided down the road, but that issue, Steve, is that there was no explicit quid pro quo proven by the government.  He got these gifts, he set some meetings and did some things that seems sort of supportive of the vitamin supplement company but you don’t have a traditional bribery scheme here where: I offer you such-and-such in exchange for this governmental action : you make an appointment or you sign a bill. So stay tuned on this one, it will be interesting to see what the appeals court does.


Yeah. Absolutely, Let’s talk about this Jeffrey Epstein case, and I think you have a disclaimer to make because that some aspects of involvement in this case some-what.  I just want to point out that Alan Dershowitz, you know, to his credit, he has denied all charges, he waived the statute of limitations, he has filed an affidavit in court. And by the way,  you can go to and you can see the entire affidavit that Alan Dershowitz has filed in his own defense against these rape accusations of this underage, then underage girl. I do not I don’t know that I hear the other people coming out as forcefully as as Dershowitz though.


And thanks for pointing out that I am counsel of record for Prof. Dershowitz so my comments necessarily have to be very limited

But he has filed a sworn statement under oath, which very specific, in rebutting the allegations, And, put this into perspective: he hasn’t been charged, he has never been charged, he hasn’t been sued this is simply an allegation  made in a court pleading that doesn’t even raise a specific claim against Alan Dershowitz or for that matter against Prince Andrew. So many time we talk about a presumption of innocence int the court of law,  but maybe there should be more of a presumption of innocence in the court of public opinion at least until there is some solid sworn evidence of wrongdoing, none of which exists here at this time.


I want to get in one more before we go.  A Ferguson grandeur is petitioning the court; they want to be able to talk to the media.  Will it happen, should it happen?


Let me speak with should and I’m going to put my former prosecutor’s hat back on.  Grand jurors swear that when they step into that room that they’re going to maintain grand jury secrecy. That’s the deal going in. There are a lot of law enforcement values for that. So my view is that is what everybody agreed to, that’s the law, that’s the oath the grand juries take and that covenant should not be set aside by a judge.


Do you think it will?


I don’t think it will but that’s a much closer call.


Okay: good enough, good enough.  Kendall, great to talk to you, look forward to the next time. Thank you so much for taking the time.

Kendall Coffey on the legal rights of suspects Part 3

Kendall Coffey on Spinning the Law with Steve Malzberg to discuss the legal rights of suspects Part 3

See Part 1 here:
MALZBERG:  All right, we’re talking to Kendall Coffey, a famed attorney and author of a book called Spinning the Law, and we’re spinning the law with him.  Let’s go with something that happened—I believe this was on Monday, which seems like forever ago, given the news week we’ve had—the Supreme Court, the US Supreme Court decided to stay out of a debate by deciding not to hear a challenge to a New York state law that requires those who want to carry a concealed handgun, well, they have to show special reason before they can get a license.  New York is one of those states that have a very high level of—

COFFEY:  They’re looking to address the issue, the issue being, what are the rights with respect to the possession of guns outside the home.  We know about the two landmark Supreme Court cases that in your home there’s a Constitutional right under the Second Amendment.  But they haven’t really mapped out the rules yet outside the home.  [unintelligible] the right to make the point wanting the case that really sets the stage for the kind of decision they want to reach.

So they could just be trying to be very selective.  There are some other cases in the pipeline on this very issue that might give them the chance to address the question of what are the rights of firearms outside the home.  And the other thing, Steve, you gotta be realistic about—right now there’s a lot of anguish still felt in this country about some recent fire gun tragedies.  If you’re the Supreme Court, you’re not gonna be swayed by that in terms of how you decide the case but you might want to look a little farther down the road before you reengage—

MALZBERG:  [unintelligible] a little bit?

COFFEY:  I think so.

MALZBERG:  Although they could obviously never be sure that once they take it, something wouldn’t happen in the interim.  The Supreme Court was gonna hear a case of a patent on genes—(laughs)—I just thought it was Dungarees—

COFFEY:  (laughs) Yeah.

MALZBERG:  ‘Cause I just thought—and no one in the control—they’re so young, they don’t even know what Dungarees are—but it’s genes, it’s human genes, it’s, for instance, from what they said, you could assume they expressed some doubts about the legality of a company having an increased risk of, you know, of cancer or some other illness.

COFFEY:  And here’s the debate:  On the one hand, there’s the view that, look, the genes are there inside your body.  They’re part of, you know, human chemistry, in effect.  They’re part of your molecules.  So simply finding them and saying, These kind of mutated genes could, in fact, be a strong indicator of breast cancer—that’s just talking about something that’s already in your body, like, why do you get a patent on that?  Because normally patents are processes, so if you have, for example, medical equipment that in some fashion identified the genes and did something to treat them, that would be patentable.

But just finding them and “isolating” them, is that something that should be a patent?  Well, the Patent Office is given tens of thousands of those patents up to now based on the not unreasonable premise that–Look, I want companies to invest millions and millions of dollars in their ability to identify which genes cause which problems, especially with respect to cancer research, but there are many other applications.

If I tell them, they spend millions of dollars and a bunch of years to find what kind of genes may cause cancer, and then they have basically no legal rights to protect the results of that investment, why on Earth would anybody want to spend all that money on this kind of cancer research?  That’s the debate, and it’s a legitimate question, and the Court seems to be skeptical about allowing these kinds of patents, but I think it’s looking for a middle ground so that the research and the investments have some protection.

MALZBERG:  Yeah, I know, good point.  I’m gonna save the Macdonald suit for next week because it’s so bizarre, and I don’t really want to get into it right now, but I do have one more quick one.  I think I gave this to you:  The Supreme Court, yesterday, limiting the ability of police to take involuntary blood samples from suspected drunk drivers without a search warrant.  It was an 8 to 1 vote on the general point that police cannot always take blood samples without a warrant but they [unintelligible] which is not all that rare, that they kinda leave this wide open for future challenges.

COFFEY:  Yeah, and if you’re a police officer, you don’t want to make an arrest, undertake the testing of a DUI suspect, then a DUI defendant quickly, and have it all thrown out—because that’s what’s going to happen in the particular case that occurred here.

Somebody had a 1.5, well above the [unintelligible], do they have to get, find a judge somewhere and get, in effect, a search warrant in order to do a blood test?  Blood testing’s the most reliable way to measure alcohol content—we use breathalizers, there are other things you can do—but they’re not as reliable as a blood test.  The problem is, the longer you wait after a blood test, guess what?  The alcohol level goes down.  You could test just about anybody the next day, and there’s not much problem.


COFFEY:  It takes a day to get a search warrant.  So it’s a difficult question because police have no guidance.  I think they’re gonna be very reluctant to do involuntary blood tests until the Court does a little more homework on this and gives them a roadmap as to what they can do and what they can’t do so that their cases aren’t going to get thrown out by good lawyers who challenge the blood tests.

MALZBERG:  Kendall, always a pleasure, sir, and always very grateful for your time.   Thank you very much.

COFFEY:  Okay, Steve, thanks for having me on.

MALZBERG:  My pleasure, take care.  Kendall Coffey, ladies and gentlemen.