Democrats Present Scathing Case for Convicting Trump Schiff Accuses President of Trying to ‘Cheat’ in Election

NY TIMES

The House Democratic impeachment managers began formal arguments in the Senate trial on Wednesday, presenting a meticulous and scathing case for convicting President Trump and removing him from office on charges of abuse of power and obstruction of Congress.

In a series of speeches, Mr. Schiff and the six other impeachment managers asserted that the president pressured Ukraine to announce an investigation of former Vice President Joseph R. Biden Jr. and his son, Hunter Biden, while withholding as leverage nearly $400 million in security aid for Kyiv and a White House meeting for its president. When he was caught, they said, Mr. Trump ordered a cover-up, blocking witnesses and denying Congress the evidence that could corroborate his scheme.

“President Trump withheld hundreds of millions of dollars in military aid to a strategic partner at war with Russia to secure foreign help with his re-election,” Mr. Schiff declared. “In other words, to cheat.”

The Democrats will continue to lay out their now-familiar case on Thursday, although there is little doubt about the outcome of the trial. It is all but certain to end in Mr. Trump’s acquittal in the Senate, where it would take 67 votes to convict and remove him. But the contours of the trial remained up in the air, as Republicans and Democrats continued to feud over whether to consider additional evidence, including witnesses the president has forbade from cooperating with the inquiry.

Mr. Trump — impatient for his legal team to have a chance to mount a vigorous defense of his behavior — was on the other side of the Atlantic Ocean, hurling insults at the impeachment managers and telling reporters he would like to personally attend the Senate trial in order to “sit right in the front row and stare into their corrupt faces.”

At a news conference in Davos, Switzerland, where he was attending the World Economic Forum, Mr. Trump said that John R. Bolton, the former White House national security adviser, could not be allowed to testify because he “knows my thoughts on certain people and other governments, war and peace and different things — that’s a national security problem.”

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President Trump before a news conference on Wednesday in Davos, Switzerland.Credit...Anna Moneymaker/The New York Times

On the first day of oral arguments, Mr. Schiff opened with a plea for patience, telling senators that “we have some very long days yet to come.” But senators already seemed restless; many passed notes to each other, and as the hours wore on, a handful of seats were frequently empty as lawmakers from both parties slipped out of the chamber for brief respites from the weighty — and often very tedious — arguments.

A protester in the Senate gallery briefly interrupted arguments from Representative Hakeem Jeffries of New York, shouting “Schumer is the devil” and yelling that Democrats support abortion before being dragged out by Capitol Hill police officers.

On the floor, the managers sought to place Mr. Trump’s Ukraine pressure campaign in the context of what they called a broader impulse by the president to cede America’s foreign policy to Russia. It was no coincidence, Mr. Schiff argued, that Mr. Trump had asked the president of Ukraine for investigations into his rivals just one day after Robert S. Mueller III, the special counsel who investigated Russia’s interference in the 2016 election, issued his report.

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House Managers Begin Arguments, Republicans Bristle at Their Tone

The House impeachment managers, led by Representative Adam B. Schiff, opened their case for convicting President Trump. Republican senators criticized the tenor of the arguments.

“We are here today in this hallowed chamber, undertaking this solemn action for only the third time in history, because Donald J. Trump, the 45th president of the United States, has acted precisely as Hamilton and his contemporaries feared. President Trump solicited foreign interference in our democratic elections, abusing the power of his office to seek help from abroad to improve his re-election prospects at home. President Trump withheld two official acts to induce the Ukrainian leader to comply: a head of state meeting in the Oval Office and military funding. Both were of great consequence to Ukraine, and to our national interest and security, but one looms largest: President Trump withheld hundreds of millions of dollars in military aid to a strategic partner at war with Russia to secure foreign help with his re-election. In other words, to cheat.” “They’re on a crusade to destroy this man, and they don’t care what they destroy in the process of trying to destroy Donald Trump. I do care. So to my Democratic colleagues, you can say what you want about me. But I’m covering up nothing. I’m exposing your hatred of this president to the point that you would destroy the institution. Nobody would be saying this about a Democratic president, if a Republican House had done this.” “Right up until last night, evidence continues to be produced. The truth is going to come out. Indeed, the truth has already come out, but more and more of it will. And the only question is: Do you want to hear it now? Do you want to know the full truth now?”

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The House impeachment managers, led by Representative Adam B. Schiff, opened their case for convicting President Trump. Republican senators criticized the tenor of the arguments.CreditCredit...Erin Schaff/The New York Times

“President Trump, believing he had escaped accountability for Russia meddling in the first election, and welcoming of it, asked the Ukrainian president to help him undermine the special counsel’s conclusion and help him smear a political opponent,” Mr. Schiff said.

For now, the president’s legal team must sit silently in the chamber as the president’s House accusers have exclusive access to the microphone. Under the rules of the trial adopted on Tuesday, the House managers have 24 hours over three days to present their case, leaving White House lawyers to take in their searingly argued case about Mr. Trump’s actions, with no opportunity for immediate rebuttal.

The president vented his spleen about the process on Twitter, firing off so many posts that he set a record for any single day in his presidency.

As of 11:30 p.m., Mr. Trump had posted or reposted 142 messages on Twitter, surpassing the previous record of 123 set in December. Most were retweets of messages from allies and supporters assailing Mr. Schiff and others prosecuting the case.

During a dinner break on Wednesday, the president’s personal lawyer Jay Sekulow raced to face reporters, vowing to eventually respond “to what the House managers have put forward, and we are going to make an affirmative case defending the president.”

The tables will turn this week, most likely on Saturday, when the defense team will be given its own 24 hours of uninterrupted time to play to the cameras from the Senate floor, with House Democrats sidelined. The defense of the president could continue into early next week after a break on Sunday.

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Jay Sekulow and members of Mr. Trump’s legal team speaking to reporters before the trial.Credit...Doug Mills/The New York Times

Schiff: Trump's Misconduct Cannot Be Decided At The Ballot Box, For We Cannot Be Assured He Can Fairly Win  (Real Clear Politics)

Representative Adam B. Schiff of California, the lead House prosecutor, took the lectern in the chamber as senators sat silently preparing to weigh Mr. Trump’s fate. Speaking in an even, measured manner, he accused the president of a corrupt scheme to pressure Ukraine for help “to cheat” in the 2020 presidential election.

Invoking the nation’s founders and their fears that a self-interested leader might subvert democracy for his own personal gain, Mr. Schiff argued that the president’s conduct was precisely what the framers of the Constitution had in mind when they devised the remedy of impeachment, one he said was “as powerful as the evil it was meant to combat.”

“If not remedied by his conviction in the Senate, and removal from office, President Trump’s abuse of his office and obstruction of Congress will permanently alter the balance of power among the branches of government,” Mr. Schiff said in his opening remarks. “The president has shown that he believes that he’s above the law and scornful of constraint.”

The Senate proceeding, the third impeachment trial of a president in the nation’s history, was fraught with partisan rancor and political consequence both for Mr. Trump and for the two parties grappling over his future.

Impeachment Trial Begins in Acrimony. Republicans made last-minute changes to their proposed rules to placate moderates, but they held together to turn back Democratic proposals.

Senator Mitch McConnell, the majority leader, on Tuesday at the Capitol before the start of the impeachment trial against President Trump. Erin Schaff/The New York Times


Chief Justice John Roberts admonished an impeachment manager and the White House counsel to “remember where they are.”
The exchange came as Republicans repeatedly blocked Democrats’ efforts to subpoena documents and seek testimony. Witnesses could still be summoned later.

Senate rejects initial Democratic effort to subpoena Bolton to testify

Democrats have argued that John Bolton’s testimony would provide a firsthand account of what transpired in the White House as military aid to Ukraine was delayed. The vote may not be the final say as senators could revisit the question of witnesses later in the trial.
With the White House prepared to try to sue in federal court to restrain him from speaking, any subpoena could set off a messy and protracted legal fight over whether he could answer questions in the trial.


Senator Mitch McConnell’s proposed rules were changed even since he had unveiled them, allowing both sides to present their cases for and against removing Mr. Trump from office over three days, tnoto two (though each side is still limited to 24 hours total). He also allowed  the House’s evidence from its inquiry to be admitted into the Senate record.

Over twelve hours after the Senate opened as a trial of impeachment, Senator Mitch McConnell of Kentucky adjourned the chamber for the evening, drawing a day of rancorous debate to a close. The Senate will reopen as a court of impeachment Wednesday afternoon, when senators are expected to hear opening arguments from the House impeachment managers.



NY TIMES

Senators will have 16 hours to ask questions, submitted in writing, likely early next week. After that, the Senate will again consider the matter of whether to subpoena witnesses or documents, at which point a few Republicans have signaled they may be open to doing so.

The Senate on Wednesday morning rejected a Democratic request to provide more time to respond to any motions that might be made during the trial, voting 52 to 48.

The proposed rules give only two hours on Wednesday to respond to any motions that might be made. House managers asked for 24 hours, a move that would have added a day of delay. White House lawyers argued against the change, saying they were ready to proceed.

Senator Susan Collins, Republican of Maine, voted with Democrats to ask for more time to respond to motions.

Under the rules proposed by Republicans, senators will eventually debate whether to consider subpoenaing witnesses. But only if Democrats win that vote would votes be taken calling specific people. And even then, the rules assert that any witnesses agreed to will be deposed privately before yet another vote on whether they can testify publicly in the Senate.

The Democratic amendment to make the changes failed by a vote of 53 to 47.

Russians Hacked Ukrainian Gas Company at Center of Impeachment

A filing cabinet broken into in 1972 as part of the Watergate burglary sits beside a computer server that Russian hackers breached during the 2016 presidential campaign at the Democratic National Committee’s headquarters in Washington.Credit...Justin T. Gellerson for The New York Times

With President Trump facing an impeachment trial over his efforts to pressure Ukraine to investigate former Vice President Joseph R. Biden Jr. and his son Hunter Biden, Russian military hackers have been boring into the Ukrainian gas company at the center of the affair, according to security experts.

The hacking attempts against Burisma, the Ukrainian gas company on whose board Hunter Biden served, began in early November, as talk of the Bidens, Ukraine and impeachment was dominating the news in the United States.

It is not yet clear what the hackers found, or precisely what they were searching for. But the experts say the timing and scale of the attacks suggest that the Russians could be searching for potentially embarrassing material on the Bidens — the same kind of information that Mr. Trump wanted from Ukraine when he pressed for an investigation of the Bidens and Burisma, setting off a chain of events that led to his impeachment.

The Russian tactics are strikingly similar to what American intelligence agencies say was Russia’s hacking of emails from Hillary Clinton’s campaign chairman and the Democratic National Committee during the 2016 presidential campaign. In that case, once they had the emails, the Russians used trolls to spread and spin the material, and built an echo chamber to widen its effect.

Then, as now, the Russian hackers from a military intelligence unit known formerly as the G.R.U., and to private researchers by the alias “Fancy Bear,” used so-called phishing emails that appear designed to steal usernames and passwords, according to Area 1, the Silicon Valley security firm that detected the hacking. In this instance, the hackers set up fake websites that mimicked sign-in pages of Burisma subsidiaries, and have been blasting Burisma employees with emails meant to look like they are coming from inside the company.© Paul Morigi/Getty Images for World Food Program USA Hunter Biden in 2016 with his father, then the vice president.

The hackers fooled some of them into handing over their login credentials, and managed to get inside one of Burisma’s servers, Area 1 said.

“The attacks were successful,” said Oren Falkowitz, a co-founder of Area 1, who previously served at the National Security Agency. Mr. Falkowitz’s firm maintains a network of sensors on web servers around the globe — many known to be used by state-sponsored hackers — which gives the firm a front-row seat to phishing attacks, and allows them to block attacks on their customers.

“The timing of the Russian campaign mirrors the G.R.U. hacks we saw in 2016 against the D.N.C. and John Podesta,” the Clinton campaign chairman, Mr. Falkowitz said. “Once again, they are stealing email credentials, in what we can only assume is a repeat of Russian interference in the last election.”

The Justice Department indicted seven officers from the same military intelligence unit in 2018.

The Russian attacks on Burisma appear to be running parallel to an effort by Russian spies in Ukraine to dig up information in the analog world that could embarrass the Bidens, according to an American security official, who spoke on the condition of anonymity to discuss sensitive intelligence. The spies, the official said, are trying to penetrate Burisma and working sources in the Ukrainian government in search of emails, financial records and legal documents.

The Russian government did not immediately respond to requests for comment, nor did Burisma.

American officials are warning that the Russians have grown stealthier since 2016, and are again seeking to steal and spread damaging information and target vulnerable election systems ahead of the 2020 election.

[Read: Even as American election defenses have improved, Russian hackers and trolls have become more sophisticated.]

In the same vein, Russia has been working since the early days of Mr. Trump’s presidency to turn the focus away from its own election interference in 2016 by seeding conspiracy theories about Ukrainian meddling and Democratic complicity.

The result has been a muddy brew of conspiracy theories that mix facts, like the handful of Ukrainians who openly criticized Mr. Trump’s candidacy, with discredited claims that the D.N.C.’s email server is in Ukraine and that Mr. Biden, as vice president, had corrupt dealings with Ukrainian officials to protect his son. Spread by bots and trolls on social media, and by Russian intelligence officers, the claims resonated with Mr. Trump, who views talk of Russian interference as an attack on his legitimacy.

With Mr. Biden’s emergence as a front-runner for the Democratic nomination last spring, the president latched on to the corruption allegations, and asked that Ukraine investigate the Bidens on his July 25 call with President Volodymyr Zelensky of Ukraine. The call became central to Mr. Trump’s impeachment last month.

The Biden campaign sought to cast the Russian effort to hack Burisma as an indication of Mr. Biden’s political strength, and to highlight Mr. Trump’s apparent willingness to let foreign powers boost his political fortunes.

“Donald Trump tried to coerce Ukraine into lying about Joe Biden and a major bipartisan, international anti-corruption victory because he recognized that he can’t beat the vice president,” said Andrew Bates, a spokesman for the Biden campaign.

“Now we know that Vladimir Putin also sees Joe Biden as a threat,” Mr. Bates added. “Any American president who had not repeatedly encouraged foreign interventions of this kind would immediately condemn this attack on the sovereignty of our elections.”

The corruption allegations hinge on Hunter Biden’s work on the Burisma board. The company hired Mr. Biden while his father was vice president and leading the Obama administration’s Ukraine policy, including a successful push to have Ukraine’s top prosecutor fired for corruption. The effort was backed by European allies.

The story has since been recast by Mr. Trump and some of his staunchest defenders, who say Mr. Biden pushed out the prosecutor because Burisma was under investigation and his son could be implicated. Rudolph W. Giuliani, acting in what he says was his capacity as Mr. Trump’s personal lawyer, has personally taken up investigating the Bidens and Burisma, and now regularly claims to have uncovered clear-cut evidence of wrongdoing.

The evidence, though, has yet to emerge, and now the Russians appear to have joined the hunt.

Area 1 researchers discovered a G.R.U. phishing campaign on Ukrainian companies on New Year’s Eve. A week later, Area 1 determined what the Ukrainian targets had in common: They were all subsidiaries of Burisma Holdings, the company at the center of Mr. Trump’s impeachment. Among the Burisma subsidiaries phished were KUB-Gas, Aldea, Esko-Pivnich, Nadragas, Tehnocom-Service and Pari. The targets also included Kvartal 95, a Ukrainian television production company founded by Mr. Zelensky. The phishing attack on Kvartal 95 appears to have been aimed at digging up email correspondence for the company’s chief, Ivan Bakanov, whom Mr. Zelensky appointed as the head of Ukraine’s Security Service last June.

To steal employees’ credentials, the G.R.U. hackers directed Burisma to their fake login pages. Area 1 was able to trace the look-alike sites through a combination of internet service providers frequently used by G.R.U.’s hackers, rare web traffic patterns, and techniques that have been used in previous attacks against a slew of other victims, including the 2016 hack of the D.N.C. and a more recent Russian hack of the World Anti-Doping Agency.

Travis Tygart, chief executive of the United States Anti-Doping Agency, said his organization was among those targeted in a cyberattack.Credit...Susan Walsh/Associated Press

“The Burisma hack is a cookie-cutter G.R.U. campaign,” Mr. Falkowitz said. “Russian hackers, as sophisticated as they are, also tend to be lazy. They use what works. And in this, they were successful.”

Pelosi and Schumer were right with the strategy to delay impeachment

BY STEVE ISRAEL, OPINION CONTRIBUTOR — 01/15/20 11:00 AM EST

THE HILL

“In politics, timing is everything” goes the popular expression. If this is true, it helps explain why Speaker Nancy Pelosi chose this week to pass a resolution naming the House impeachment managers for the long awaited trial of President Trump and transmitting the articles over to the Senate.

I have written before about the deft sense of timing and sensitivity that Pelosi has to the sometimes imperceptible frequencies of public opinion. In leadership meetings, when hashing out legislative strategies, she would often point to a portrait of Abraham Lincoln when he was a member of Congress and remind her colleagues of his famous quote, “In this age, in this country, public sentiment is everything. With it, nothing can fail, and against it, nothing can succeed. Whoever molds public sentiment goes deeper than he who enacts statutes, or pronounces judicial decisions.”

That does not mean wetting a finger to sense prevailing winds. It may be too late by then. It means creating the wind or counterwind to achieve a favorable climate. Sometimes that requires a great deal of patience. Take the impeachment resolutions, which the House is expected to transmit today. In the immediate aftermath of the House vote to impeach Trump last month, the general public was insufficiently aware of the short shrift the Senate would give it. The donors at Democratic fundraisers knew. So did engaged Democrats who watch MSNBC and treat Twitter like a life sustaining oxygen machine. However, the less committed swing voters in battleground districts probably did not think about the fairness of a trial.

At the time, Senate Majority Leader Mitch McConnell did have a favorable climate in which to conduct a sham trial, instantly acquit Trump, and hand the president a major political victory with a credible case for exoneration. Pelosi and Senate Minority Leader Charles Schumer needed the time and space to build a different case. The truth was being suffused by partisan Republicans, the trial was rigged, and witnesses were needed. Ironically, the case was convincingly made by McConnell himself, first admitting to Fox News that instead of acting as an impartial jury under the Constitution he would coordinate with the White House for the trial, then indicating he would oppose the calling of witnesses who might lend any credence to the notion that the president may have committed impeachable offenses.

The strategy worked. By the end of October, when the House passed its impeachment resolutions, an acquittal might have been readily accepted by the public. Now it will come under a very dark cloud. It is pretty clear that the process and rules have been rigged and that even an acquittal comes laden with skepticism and doubt. In a survey by the Washington Post and ABC News, six in 10 Americans expect a fair trial in the Senate, and 55 percent believe Trump was treated fairly in the House Intelligence and Judiciary Committee hearings that bore the articles of impeachment.

A month ago, the five Republican senators who face tough elections this year, Thom Tillis of North Carolina, Cory Gardner of Colorado, Martha McSally of Arizona, Susan Collins of Maine, and Joni Ernst of Iowa, may have wanted to rip the bandage off impeachment by choosing to acquit and moving on quickly to mend broken fences with alienated voters. Now they are doing some political bleeding. In addition to a sense of timing, Pelosi and Schumer proceeded with two other indispensable strategic skills, the keen ability to act as hedgehogs and foxes at the same time.

The hedgehog reaches his goal with obsessive, undistracted, purposeful determination. The fox uses cunning, agile, clever tactics. The problem for a hedgehog is figuring out how to maneuver around barriers. The problem for the fox is often losing itself in detours and even sight of the goal itself. A grand strategist has to operate as both the hedgehog and the fox at the same time. Pelosi and Schumer fully maintained the determination of the hedgehog to get to the truth behind how Trump really dealt with Ukraine.

But the fox in both of the Democratic leaders developed a strategy that educated less partisan voters that the truth was being undermined....But these days, that responsibility has been cast aside by the imperative of electoral survival. Staying on the good side of Trump is more important than siding with the Constitution. If you still believe, at this point in time at least, that an acquittal of Trump will have been achieved through a sober and untainted search for “the truth and nothing but the truth,” come meet me up in New York, the state where Schumer hails from, specifically at the intersection of Fulton and Boerum in Brooklyn. There is a bridge for sale.

Steve Israel represented New York in Congress for 16 years and served as the chairman of the Democratic Congressional Campaign Committee from 2011 to 2015. He is now the director of the Institute of Politics and Global Affairs at Cornell University. You can find him on Twitter @RepSteveIsrael.

The controversy over New York’s bail reform law, explained

Cash bail disproportionately affects the poor. So why are Democrats pushing back against a new reform law?

VOX

By Roxanna Asgarian  Jan 17, 2020, 8:30am EST

For years, criminal justice advocates have been fighting for an end to cash bail. They say the practice creates two tiers of the justice system: In one, wealthy people can bond out of jail and work out their cases upon release; in the other, poor people, often accused of low-level crimes, can’t afford bail and have their lives upended while awaiting trial.

At the start of the new year, New York joined states like California and New Jersey in taking steps to cease this practice. Criminal courts in the state are now prohibited from setting cash bail for most misdemeanors and nonviolent felonies.

Ahead of the law’s passage, New York Governor Andrew Cuomo, who proposed his own version of the legislation, praised the move. “The blunt ugly reality is that too often, if you can make bail, you are set free, and if you are too poor to make bail, you are punished,” he said.

But just days after the law took effect, New York media and politicians were in a frenzy. Over the holidays, New York City and surrounding areas had seen a spate of anti-Semitic attacks, and critics of the bail law called for a hate crime exemption to it. Outlets like the New York Post latched onto cases like that of Tiffany Harris, who was arrested three times for assaulting Orthodox Jewish women in Brooklyn in less than a week: “Harris walked free under the state’s new soft-on-crime law,” the Post wrote. On January 10, the New York Daily News ran a cover story of a homeless man who had been charged with assault being released without bail. Staten Island Assembly member Nicole Malliotakis told Tucker Carlson on Fox News that if the law doesn’t get modified, “There’s going to be blood on Governor Cuomo’s hands.”

By January 8, Governor Cuomo had gone on the record saying there were “consequences we have to adjust for,” and that he was open to modifying the law in the next session.

Governor Andrew Cuomo speaks to the media outside the home of rabbi Chaim Rottenberg in Monsey, New York, on December 29, 2019.

 Kena Betancur/AFP via Getty Images

But much of the coverage has obscured or downplayed one crucial point: that since 1971, public safety — the idea of the “potential dangerousness” of someone accused of a crime — has not been a legal reason to set bail for a defendant in New York. For nearly 50 years, judges have only been able to consider the defendant’s likelihood of coming to their court date when setting bail, and have been directed to use the “least restrictive” means to get them there. However, just because “potential dangerousness” hasn’t been legally allowed doesn’t mean it hasn’t been the de facto use of bail by judges and prosecutors for decades.

This fear-based messaging has been a favorite tool of opponents of the law. And it’s easy to see how it would catch on in the face of an uptick in hate crimes. But New Yorkers aren’t the only ones concerned about a spike in crime as a result of changing the bail system. Even though violent crime has dropped significantly around the country, some worry that more people charged with crimes “out on the streets” equals a more dangerous society.

In truth, most people in court each day are there for minor offenses. Brooklyn Bail Fund, a nonprofit that has posted bail for more than 4,000 people who could not afford it, reported that those who were released were three times as likely as those who weren’t to have favorable outcomes to their cases. That’s because, defense attorneys say, people who are stuck in jail are much more likely to plead guilty in order to get out, rather than to fight their cases.

In a country overwhelmed by mass incarceration, where about 67 percent of those in county jails are there pretrial, a system where the amount of money you have on hand dictates your freedom seems antiquated at best and unconstitutional at worst.

The New York bail reform law is expected to decrease the number of pretrial detainees by more than 40 percent, according to a report by the nonprofit Center for Court Innovation. But standing in the way of a fairer system are misconceptions held by many Americans about what it is their justice system actually does.

The perception of bail reform versus the reality

Back in the 1960s, New York was in the throes of a similar debate on bail reform. The New York Times ran a series of editorials between 1963 and 1965 arguing the bail system was “a machine to penalize the poor” and advocating for it to be “abolished or drastically modified.” The idea of preventive detention, or detaining someone before their trial for public safety reasons, was hotly debated when the state was passing its first crack at bail reform in 1970. That year, the New York State Legislature passed a law that excluded the “dangerousness” clause and limited a judge’s reasons in setting bail to ensuring that the defendant returns to court.

“Although, legally, bail is not supposed to be used to determine dangerousness, we see that happen all the time,” Khalil Cumberbatch, a formerly incarcerated person who now advocates for reform, told Vox. “Judges just don’t say the term ‘dangerousness.’”

The idea of “dangerousness,” advocates stress, is tied into the racial discrepancies of our justice system. Two studies of state court data from 75 large jurisdictions in the 1990s found that bail was set at significantly higher rates for black and Latinx people.

In the latest bill, signed into law last year and enacted on January 1, judges still can’t consider the potential dangerousness of a defendant. While 90 percent of arrests statewide are now subject to release without bail, violent felonies, sex-related charges, and some domestic violence charges are still subject to cash bail.

“These reforms are a very incremental change — New York State did not get rid of cash bail. It’s still applicable to almost all violent offenses,” Cumberbatch said. “And for someone with means, almost nothing has changed.”

Across America, pretrial detention increased 433 percent from 1970 to 2015, according to a 2019 Vera Institute of Justice report. About two-thirds of people currently in jail have not been convicted of a crime. A 2017 City University of New York report found New York City arrestees who were detained before their trials spent an average of 13-17 days behind bars. But some stay much longer — like Kalief Browder,[photo below] whose tragic story was an inspiration for the law. Because he couldn’t make bail, Browder spent three years at Rikers Island without ever being convicted of a crime, two of those in solitary confinement. Two years after he was released, he died by suicide
.

People of color are disproportionately represented in New York’s prisons and jails: More than half of those incarcerated are black, although black people represent just 16 percent of the state’s population. And a 2019 analysis by antipoverty nonprofit FPWA found that “as poverty rates increase, jail incarceration rates increase in New York City community districts.”

In a system where if you can afford to pay bail, you can walk free, even critics of the new law agree that those who are detained are overwhelmingly poor people.

John Flynn, the district attorney in Erie County, which includes Buffalo, said his office has been operating under a policy for the past year and a half in which prosecutors refrain from asking for bail in the majority of misdemeanor cases with a few exceptions, a policy that cut the number of people in jail pretrial by almost 50 percent, he says. “The main reason was the disproportionate economic realities — you have two people charged with the same offense, and one can afford to bond out and one can’t, and that’s just fundamentally unfair,” Flynn said.

But Flynn, who is vice president of the state and national district attorney associations, said the new law goes too far. “My attorneys are no longer able to argue, to point out to a judge, ‘Hey Judge, there’s a good reason to why you should put bail,’” Flynn said. “And the judges, who are elected by the people here in New York State, they now have no discretion at all.”

A sign advertises services for bail bonds near the Brooklyn Detention Complex in Brooklyn, New York, on December 21, 2019.

 Robert Nickelsberg/Getty Images

Flynn said the law should be amended to include a public safety component similar to the bail reform law passed by New Jersey, which uses an algorithm to predict the likelihood of a defendant to commit further crimes. “Whether or not the person is a danger to himself or another person or society in general — I think a discussion needs to take place on that,” Flynn said.

But proponents of the new law argue that it’s that judicial discretion that resulted in huge numbers of poor people being detained pretrial, and that same discretion also allows for racial bias. The predictive algorithms, too, have come under fire for furthering racial bias. A 2016 ProPublica investigation found that the algorithm in Broward County, Florida, that was used to predict the likelihood of a defendant to commit future crimes “was particularly likely to falsely flag black defendants as future criminals, wrongly labeling them this way at almost twice the rate as white defendants.”

Erin George, the civil rights campaigns director for Citizen Action of New York, said that these conversations about public safety are missing a critical segment of the public. “We have to stop talking about public safety as if the safety of black and brown communities who are targeted by discriminatory pretrial laws and policing, and then forced into the most violent places in the United States, as if their safety doesn’t matter in this conversation,” George said. “Our conversation has to include these people.”

The bail reform movement has produced positive results in nearby New Jersey

What’s happening in New York is part of a larger wave of bail reform sweeping the country. California became the first state to abolish cash bail in 2018 after an appellate court ruled the practice unconstitutional. But after a successful campaign by the bail bonds industry, the law is on hold until California voters take up the issue later this year. Meanwhile, Harris County, home to Houston, has done away with cash bail for misdemeanors after a federal judge ruled the practice unconstitutional, and a similar lawsuit is pending for the felony courts there. Other lawsuits have been filed in states and counties around the country.

New Jersey’s reforms, which happened in 2017, have seen promising results. Not only has there been a 40 percent drop in the number of pretrial detainees, data also shows that since the new law went into effect there was no spike in crime, and people who were released were just about as likely to show up for their court dates.

The New York City public advocate, Jumaane D. Williams, said at a news conference on Tuesday that calls to change the new bail laws were premature.Credit...Gabriela Bhaskar for The New York Times

This data is heartening for supporters of the New York law, who hope to see similar findings in their state. But Senate Republicans plan to bring a bill to repeal the law in the current legislative session. And with even Democrats, especially in swing districts, calling for some modification of the new law, it’s likely that potential changes to the bill will be heard in the Democrat-controlled House as well

New documents bring startling revelations in the Ukraine scandal Drew Angerer/Getty Images New evidence of alleged corrupt dealings by President Trump and his associates emerged on Tuesday night after the House Intelligence Committee released a tranche of documents related to the Ukraine scandal. [Vox / Andrew Prokop] The documents suggest there may have been multiple quid pro quos at play in the Trump team’s Ukraine outreach: In WhatsApp messages, former Ukrainian prosecutor Yuri Lutsenko appears to offer dirt on Hunter Biden in exchange for the removal of the US ambassador to Ukraine, Marie Yovanovitch. [Slate / Elliot Hannon] A letter signed by the president’s attorney Rudy Giuliani also states that Giuliani was in Ukraine and pursuing a meeting with Ukrainian President Volodymyr Zelensky with Trump’s “knowledge and consent.” [NPR / Bill Chappell] The documents were turned over by Giuliani confederate Lev Parnas, who is under federal indictment on charges of campaign finance violations. The cache included a note handwritten by Parnas: “Get Zelensky to announce that the Biden case will be investigated.” [Politico / Andrew Desiderio] The release of the documents represents a new development in the impeachment inquiry, which focused on Trump’s conduct toward Ukraine. A Senate trial is expected to get underway next week. [NYT / Nicholas Fandos]