The Twenty-Fifth Amendment: Incapacity and Ability to Discharge the Powers and Duties of Office?

History provides many instances of U.S. presidential or vice presidential incapacity. It was the death of President John F. Kennedy that prompted the 25th Amendment to the Constitution to gain ratification in 1967, in part to establish a method to fill the vice presidency if it became vacant. On Saturday morning September 22, 2018, readers of The New York Times awoke to read a page-one story about how the Deputy Attorney General Rod J. Rosenstein had previously advocated the secret White House recording of President Trump “to expose the chaos consuming the administration, and he discussed recruiting cabinet members to invoke the 25th Amendment to remove Mr. Trump from office for being unfit.” Given this recent controversy, it seems timely and opportune to take a fresh look at the Twenty-Fifth Amendment, its history and purpose, how it works, and potential application

Democracy at Risk: Domestic Terrorism and Attack on the U.S. Capitol

The year 2022 begins with democracy hanging in the balance. On February 13, 2021, Donald John Trump becomes the only American president to be impeached and acquitted twice. His acquittal for the second time follows a violent mob, having been incited by the lame-duck president, into marching down Pennsylvania Avenue to break into and vandalize the Capitol Building. It is now known that at least 138 law enforcement officers suffered from or received burns, concussions, rib fractures, heart attack—and at least five deaths are attributed to this insurrection. More than 725 individuals are subsequently charged for their role in this violent crime. Here is an account of the events leading up to impeachment and the constitutional duties and responsibilities that follow. America is at a crossroads. Encouraged by foreign powers, the rise of domestic terrorism in the United States has now become a major threat to the fragile American experiment. Preservation of this precious republic will require a diligent and thoughtful daily commitment to preserving the sanctity and efficient functioning of each of the three independent branches of government

Governance of the Facebook Privacy Crisis

In November 2018, The New York Times ran a front-page story describing how Facebook concealed knowledge and disclosure of Russian-linked activity and exploitation resulting in Kremlin led disruption of the 2016 and 2018 U.S. elections, through the use of global hate campaigns and propaganda warfare. By mid-December 2018, it became clear that the Russian efforts leading up to the 2016 U.S. elections were much more extensive than previously thought. Two studies conducted for the United States Senate Select Committee on Intelligence (SSCI), by: (1) Oxford University’s Computational Propaganda Project and Graphika; and (2) New Knowledge, provide considerable new information and analysis about the Russian Internet Research Agency (IRA) influence operations targeting American citizens.By early 2019 it became apparent that a number of influential and successful high growth social media platforms had been used by nation states for propaganda purposes. Over two years earlier, Russia was called out by the U.S. intelligence community for their meddling with the 2016 American presidential elections. The extent to which prominent social media platforms have been used, either willingly or without their knowledge, by foreign powers continues to be investigated as this Article goes to press. Reporting by The New York Times suggests that it wasn’t until the Facebook board meeting held September 6, 2017 that board audit committee chairman, Erskin Bowles, became aware of Facebook’s internal awareness of the extent to which Russian operatives had utilized the Facebook and Instagram platforms for influence campaigns in the United States. As this Article goes to press, the degree to which the allure of advertising revenues blinded Facebook to their complicit role in offering the highest bidder access to Facebook users is not yet fully known. This Article can not be a complete chapter in the corporate governance challenge of managing, monitoring, and oversight of individual privacy issues and content integrity on prominent social media platforms. The full extent of Facebook’s experience is just now becoming known, with new revelations yet to come. All interested parties: Facebook users; shareholders; the board of directors at Facebook; government regulatory agencies such as the Federal Trade Commission (FTC) and Securities and Exchange Commission (SEC); and Congress must now figure out what has transpired and what to do about it. These and other revelations have resulted in a crisis for Facebook. American democracy has been and continues to be under attack. This article contributes to the literature by providing background and an account of what is known to date and posits recommendations for corrective action

How Google Perceives Customer Privacy, Cyber, E-Commerce, Political and Regulatory Compliance Risks

By now, almost every business has an Internet presence. What are the major risks perceived by those engaged in the universe of Internet businesses? What potential risks, if they become reality, may cause substantial increases in operating costs or threaten the very survival of the enterprise? This Article discusses the relevant annual report disclosures from Alphabet, Inc. (parent of Google), along with other Google documents, as a potentially powerful teaching device. Most of the descriptive language to follow is excerpted directly from Alphabet’s (Google) regulatory filings. My additions about these entities include weaving their disclosure materials into a logical presentation and providing supplemental sources for those who desire a deeper look (usually in my footnotes) at any particular aspect. I have sought to present a roadmap with these materials that shows Google’s struggle to optimize their business performance while navigating through a complicated maze of regulatory compliance concerns and issues involving governmental jurisdictions throughout the world. International cybercrime and risk issues follow, with an examination of anti–money laundering, counterterrorist, and other potential illegal activity laws. The value proposition offered here is disarmingly simple—at no out-of-pocket cost, the reader has an opportunity to invest probably just a few hours to read and reflect upon the Alphabet, Inc. (Google) multiple-million-dollar research, investment and documentation of perceived Internet, e-commerce, cyber, IT, and electronic payment system risks. Hopefully, this will prove of value to those either interested in the rapidly changing dynamics of (1) electronic payment systems, (2) those engaged in Internet site operations, or (3) those engaged in fighting cybercrime activities

IMPEACHMENT, DONALD TRUMP AND THE ATTEMPTED EXTORTION OF UKRAINE

For only the third time in the nation’s history, the decade of the 2020s begins with impeachment of a U.S. president. The first three years of the Trump presidency is characterized by: incitement of rampant political and racial polarization; multiple lies to the public on a daily basis from the president and administration; unprecedented cabinet and high level administrative personnel turnover; multiple convictions and sentencing of high level election campaign and administrative officials for crimes sounding in bribery and corruption; an investigation by Robert Mueller into Russian involvement in the 2016 U.S. elections; continuous violations of the Constitutional emoluments clause . . . and the list continues. Donald Trump’s presidency proves so divisive that talk about his impeachment begins immediately as the Democratic Party reclaims control of the House of representatives following the 2018 mid-term elections. Just a day after the conclusion of the Mueller investigation into Russia’s 2016 election interference, President Trump calls the president of Ukraine and requests an investigation into his political rival Joseph Biden in exchange for release of nearly $400 million of congressional mandated military aid. As yet another Constitutional crisis during the Trump Presidency has come and gone, now is a good time to examine the history and role of impeachment, how it works, the Trump saga, and implications for the future

The Twenty-Fifth Amendment: Incapacity and Ability to Discharge the Powers and Duties of Office?

History provides many instances of U.S. presidential or vice presidential incapacity. It was the death of President John F. Kennedy that prompted the 25th Amendment to the Constitution to gain ratification in 1967, in part to establish a method to fill the vice presidency if it became vacant. On Saturday morning September 22, 2018, readers of The New York Times awoke to read a page-one story about how the Deputy Attorney General Rod J. Rosenstein had previously advocated the secret White House recording of President Trump “to expose the chaos consuming the administration, and he discussed recruiting cabinet members to invoke the 25th Amendment to remove Mr. Trump from office for being unfit.” Given this recent controversy, it seems timely and opportune to take a fresh look at the Twenty-Fifth Amendment, its history and purpose, how it works, and potential application

When Does a Non-Fungible Token (NFT) Become a Security?

Non-fungible tokens (NFTs) gained prominence in the news cycle during March 2021 when $69 million was paid in a cryptocurrency known as Ether for a unique digital art piece titled Everydays: The First 5000 Days. Regulating NFTs is complicated because the technology encompasses varied applications. Therefore, it is the particular use of a given NFT that will determine its appropriate regulatory regime. For example, NFTs may take the form of collectibles, data associated with a physical item, financial instruments, or permanent records associated with a person, such as marriage licenses or property deeds. Just like digital art in the form of NFTs, our laws and regulations are in a constant struggle to keep pace with rapid introduction and diffusion of technological changes. Unlike digital or cryptocurrencies which are fungible, NFTs are not. The effective regulation of United States securities markets has a significant impact on capital formation, job creation, economic security, and growth of both the American and global economies. In recent years, the advent of the internet has created novel regulatory challenges for the U.S. Securities and Exchange Commission (SEC). The focus of our Article is how and when an NFT becomes a security for purposes of U.S. securities law. We proceed in six parts. First, we briefly explain the evolution of the digital world and emergence of virtual economies within. Second, we describe blockchain technology and the growth in virtual currencies. Third, we provide an explanation of NFTs along with some examples of their various uses. Fourth, we discuss when an NFT is a security. Fifth, we explore SEC interpretations of when a crypto-asset is a regulatable security. And last, we conclude. Given the importance of U.S. securities markets in fostering job creation and global economic growth, we believe this work contributes to the understanding of this new technology and is of considerable interest to securities issuers, investors, and the regulatory community

Special Purpose Acquisition Companies (SPACS) and the SEC

Special Purpose Acquisition Companies (SPACs) are simply enterprises that raise money from the public with the intention of purchasing an existing business and becoming publicly traded in the securities markets. If the SPAC is successful in raising money and the acquisition takes place, the target company takes the SPAC’s place on a stock exchange in a transaction that resembles a public offering. Also known as “blank-check” or “reverse merger” companies, this process avoids many of the pitfalls of a traditional initial public offering. During late 2020 and 2021 an unprecedented surge in the popularity and issuance of Special Purpose Acquisition Companies (SPACSs) took place. John Coates, the SEC’s Acting Director of the Division of Corporation Finance, observed, “Concerns include risks from fees, conflicts, and sponsor compensation, from celebrity sponsorship and the potential for retail participation drawn by baseless hype, and the sheer amount of capital pouring into the SPACS, each of which is designed to hunt for a private target to take public.” We discuss this popular approach to capital formation within the context of the securities issuance process and examine the robust market for SPAC issuance during 2020 and 2021. Financial reporting and auditing considerations are examined, along with regulatory concerns. Several examples of these offerings are provided. We believe this paper adds to the discussion and understanding of this widely employed financing mechanism