18 June 23
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As president, Trump was no less vocal on the topic, with his ire frequently directed at individuals who revealed unflattering information about him or his administration to the press. In response to a series of damaging stories early in his presidency, for example, Trump insisted that “[t]hat is the most confidential stuff. Classified. That’s classified. You go to prison when you release stuff like that.” Shortly after the confirmation of Trump’s first attorney general, Jeff Sessions, Trump told a group of reporters, “I’ve actually called the Justice Department to look into the leaks. Those are criminal leaks.” Within a few months, Sessions announced that the Justice Department had dramatically ramped up the number of leaks under investigation since the end of the Obama administration, telling reporters: “I strongly agree with the President and condemn in the strongest terms the staggering number of leaks undermining the ability of our government to protect this country.”
By the end of the Trump administration, the Justice Department had criminally charged eight individuals for leaking information to the press. Five of them were charged under the same provision of the Espionage Act—18 U.S.C. § 793—under which Trump has now been indicted. Two of the five were charged under § 793 for unlawfully retaining, in addition to leaking, information.
The Trump administration’s record of Espionage Act prosecutions further casts doubt on the notion that Trump’s own indictment is a witch hunt. To the contrary, the allegations against Trump are more troubling than those against some of the individuals prosecuted under the Espionage Act during his administration. For example, one could very plausibly argue that Reality Winner acted in the public interest when she leaked a report on Russian interference in the 2016 election. According to former President George W. Bush’s former classification “czar” William J. Leonard, Winner’s leak—for which she was sentenced to more than five years in prison—“was the first time the vulnerability of our election system to foreign interference had been brought to the attention of many Americans, including state and local election officials.” Similarly, former FBI agent Terry Albury was sentenced to more than four years in prison for disclosing bureau practices that he considered abusive. His leaks resulted in several stories in The Intercept, including one revealing the FBI’s practice of acquiring journalists’ phone records without notifying the journalists or their news organizations. ” (Disclosure: I co-authored an amicus brief to Albury’s sentencing court in 2018, urging them to weigh First Amendment interests as a mitigating factor in his sentence. Since that time, Albury and I have corresponded occasionally by email, and I consider him a friend.)
Unlike Winner and Albury, who leaked discrete pieces of information that they reasonably believed to be in the public interest, Trump is alleged to have moved hundreds of highly sensitive documents to his residence at Mar-a-Lago and to Bedminster, New Jersey, after his presidency, including presidential intelligence briefing materials and information on domestic and foreign military operations and capabilities. Furthermore, there has been no indication to date that Trump planned to use the information to serve what he reasonably believed to be the public interest. The indictment alleges, rather, that Trump sought to keep the materials in his possession through a pattern of secrets and lies. It also cites two occasions in which Trump allegedly shared materials with staffers and political allies who did not possess security clearances, in order to impress them.
At the same time that the Trump administration’s prosecution record undermines the notion that Trump’s indictment is political persecution, both things should lead us to rethink the Espionage Act’s capaciousness. Indeed, the gulf between Trump’s alleged behavior and that of the media sources prosecuted by his administration illustrates the extraordinary breadth of the act. Trump was indicted under § 793(e) of the act. Three of the media sources were prosecuted under § 793(e), one under § 793(d), and one under both provisions. Section 793(e) applies to individuals who had unauthorized access to materials “relating to the national defense” and either willfully conveyed it to “any person not entitled to receive it” or “willfully retain[ed] the same and fail[ed] to deliver it on demand to the officer or employee of the United States entitled to receive it.” Section 793(d) is virtually identical but applies to those who accessed the materials lawfully.
Courts have narrowed this far-reaching statutory language only slightly over the years. They have read two requirements into the term “relating to the national defense”: The materials must be “‘closely held in that [they] ... have not been made public and are not available to the general public,” and their disclosure must be “potentially damaging to the United States or [potentially] useful to an enemy of the United States.” Courts have also interpreted the act’s willfulness requirement to signify a knowing violation of the law. Finally, although the Espionage Act does not mention the classification system, which postdated the act’s passage, courts have used classification status to inform their assessment as to whether materials were “closely held” and to determine who was “entitled to receive” information.
The Espionage Act’s capaciousness further betrays the emptiness of claims that the special counsel’s indictment marks an unprecedented act of persecution against a man who has done no wrong in the eyes of the law. It also lays bare what these complaints really are—a call not to treat a former president fairly, but to treat him better than others precisely because of his status as a former president and still-active political figure. As Smith said in a press conference last week, “We have one set of laws in this country and they apply to everyone.”
At the same time, the current moment is an opportune one in which to reevaluate the Espionage Act’s breadth. The act leaves the door open for prosecutors to target a stunningly wide array of actions that entail conveying or retaining classified information. These actions include outright spying, and, yes, piling boxes and boxes of classified information into bathrooms and ballrooms in one’s largely unsecured luxury resort and refusing to return them upon request. However, the act also can extend to revelations to the press and the public regarding government lies and abuses.
The use of the act to target media sources is a fairly recent development. Between its enactment in 1917 and the end of the George W. Bush administration, the act had been applied in this way on only three occasions. For reasons not entirely clear—though surely related in part to technological changes that make it easier for the government to find leakers—such uses of the Espionage Act increased dramatically during the Obama administration, a practice that the Trump administration enthusiastically embraced. More concerningly still, the Trump administration became the first to use the act against a publisher of information when it indicted Julian Assange in 2020. The Biden administration continues to seek Assange’s extradition to the United States, despite calls by press freedom groups to drop the charges against him.
There is no magic formula that will strike a perfect balance between the secrecy that national security requires and the transparency that fuels a healthy democracy. But recent prosecutions and indictments have revealed the 1917 Espionage Act for what it is: a blunt, rusty old instrument. An amended version of the legislation should make the public’s interest in any leaked information a relevant factor, whether by prescribing a balancing test for courts to apply or creating a public interest defense against liability. Courts, too, can play a role, by paying more attention to the First Amendment interests at stake at both liability and sentencing phases in cases involving media leaks that implicate the public interest.
Since news broke of Trump’s indictment, many commentators have remarked that the indictment, whether right or wrong, marks a sad day for our country. Perhaps so, but it is also an occasion for hope. For one thing, the indictment backs up Smith’s assertion that no one, however high in status, is above the law. But looking ahead, the Trump indictment may also precipitate the reexamination of an old law that does a poor job of serving another American ideal: that of an informed citizenry and a vibrant press.
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An image contained in the indictment against former president Donald Trump shows boxes of records being stored on the stage in the White and Gold Ballroom at Trump's Mar-a-Lago home and private club in Palm Beach, Fla. (photo: AP)
Graymail, ‘Goldilocks rule’ and silent witnesses could help the former president put off case until after 2024 election
Trump’s indictment on dozens of charges, including mishandling classified documents and trying to obstruct investigators’ efforts to recover that material, means his case will be tried under the rules of the Classified Information Procedures Act, or CIPA — a law that could, in theory, delay any trial until after the 2024 presidential election.
Trump, who is leading in the polls for the 2024 Republican presidential nomination, and some of his GOP competitors have slammed the investigation as partisan, suggesting that any one of them may try to force the Justice Department to drop the case if elected.
Passed in 1980, CIPA was designed to fix what government lawyers call the “graymail” problem in national security cases — a tactic in which defendants raise the possibility that damaging classified information could be revealed at trial. In some cases, prosecutors have dropped charges or entire cases rather than risk the disclosure of the very secrets the government was trying to protect.
While the law has enabled the government to pursue cases involving classified documents that it might otherwise drop, it has also meant that these trials legally require more precautions and tend to take more time to get to trial than a typical criminal case.
The law created a series of pretrial steps that must be taken to decide exactly what classified information will be used in court, and how. Lawyers who have worked such cases view the law as a time-consuming and difficult set of procedures that can be extremely beneficial to any defendant seeking to delay a trial.
Special counsel Jack Smith, who is leading the classified-documents case for the Justice Department, has signaled a desire to take the Trump case to trial quickly. But experts say that will be a tall order given the legal requirements for handling classified information — particularly before Judge Aileen M. Cannon, who has little experience with such issues.
For starters, Trump needs at least one lawyer, and probably more than one, with a security clearance to examine the evidence, as he is accused of illegally retaining 31 separate classified documents, some dealing with highly sensitive nuclear and foreign secrets, at his Mar-a-Lago home and private club.
It can take weeks or sometimes months for a defense lawyer without a security clearance to get one, and over the years Trump has proved to be a difficult client, one who frequently hires, fires or sidelines lawyers.
Joshua L. Dratel, a criminal defense attorney who handles national security cases, said the discovery process in cases involving classified materials typically takes much longer than in other types of criminal cases.
During discovery, Trump’s legal team would review the evidence that the government collected during its investigation, including the classified materials. But those classified materials can only be accessed in secure areas called sensitive compartmented information facilities, or SCIFs. For defense lawyers, that typically means a secure facility inside the federal courthouse, where they are prohibited from taking the materials out of the room. If they want to discuss classified material with potential witnesses, that too must be done in a SCIF.
“The preparation of those materials takes an inordinate amount of time. And it may be that the only way you can review the discovery materials is in there,” Dratel said. “You can't put it on a laptop or read it on a train. There are a lot of limitations on access that extend the process of review.”
Once the defense team has analyzed all the classified materials in the case, Trump’s attorneys will file a sealed document in court describing the classified information they plan to disclose to jurors at trial as part of their efforts to defend the former president against the charges. That could include information contained in documents, portions of documents, testimony or lawyer’s statements to the jury.
Defense lawyers in national security cases have long argued that this part of the CIPA law is unfair to defendants, because it gives prosecutors a detailed road map to the trial defense strategy well before the trial begins, and because so many of the legal debates are kept secret under seal, out of public view.
Prosecutors may object — and often do — to defense plans to reveal classified information. Under CIPA, they can argue at a sealed hearing for substituting the information the defense wants to use with more vaguely worded versions. At that hearing, defense lawyers typically have to show why each contested piece of sensitive information they want to present is relevant to the case, and a judge ultimately rules on the matter. If prosecutors disagree with the judge’s ruling, they can appeal, but the defense team cannot appeal such decisions until after conviction.
For these reasons, prosecutors in national security cases often look for what they call “Goldilocks” documents to use at trial — a reference to the children’s fable of a girl eating porridge that was not too hot nor too cold, but just right.
A Goldilocks classified document is typically one that a jury would recognize as sensitive national security information, but is not so complex that it is hard to understand, nor so potentially damaging that it cannot be exposed or discussed at a public trial.
“They want the document on its own to be a blinking red light that says it should obviously not have been removed,” said David Aaron, a former Justice Department lawyer who prosecuted national security cases. “There’s an effort for prosecutors to identify documents that would be useful as evidence and also wouldn’t require a ton of technical explanation to the jury. They need them to be sensitive, but not too sensitive.”
Aaron said prosecutors and intelligence agencies need to make a decision on how to present as evidence each of the 31 classified materials Trump is accused of illegally retaining. Some of the materials, he said, could be shown to the jury under “the silent witness rule.” Under this rule, classified materials are privately shown to the jury in their entirety, but the details are obscured when presented in the public courtroom.
For example, the jury could be shown an unredacted document that contains a specific country’s military capabilities, but later in the courtroom, lawyers would only refer to the foreign country as “country A.” Some lawyers with CIPA experience refer to this type of evidence as “speaking in code” in front of the jury so that the public — either present in the courtroom or reading news reports from the trial — cannot discern the classified material.
A recent appeals court ruling upheld the silent witness rule, concluding that it could also be used to prevent a defendant from introducing information in the public record if that public information could be used in a “connect the dots” fashion to show what the cloaked classified information is.
Each of these pretrial stages can involve significant litigation over what can and cannot be used, consuming a great deal of time, legal experts said.
Aaron prosecuted the high-profile leak case of Reality Winner, the former National Security Agency contractor sentenced to more than five years in prison for leaking a classified document about Russian interference in the 2016 elections. He said the beginning of the discovery process could focus on nonclassified aspects of the evidence, while Trump’s lawyers await a clearance and classified discovery.
“The documents themselves are classified, but evidence such as the discussions about where they were moved, or the search warrant affidavits, are likely unclassified,” Aaron said. “You cannot defend an entire case without a security clearance, but you can make progress in the case without one.”
While Trump’s status as the first former U.S. president ever charged with a crime makes this case unprecedented, Aaron said the processes and laws at the core of it have long been used in national security cases and trials.
“This is a unique circumstance, this is a unique case, but all the things that we are talking about — the Espionage Act and CIPA — these are all well-established techniques and law,” Aaron said. “This is how the law operates. These are not being made up on the fly.”
Aaron also worked on a case involving a former government contractor, Harold T. Martin III, who was arrested in 2016 on allegations that he took home a huge number of paper and digital copies — the equivalent of 500 million pages — but never shared them with anyone.
Court decisions in the Martin case may prove valuable to the Trump prosecutors, Aaron said. At one point, Martin’s attorneys argued that prosecutors would need to prove that Martin knew that he possessed the specific documents that the government charged him with having in order to convict him. Prosecutors, however, argued that they only needed to prove that Martin knew he was wrongfully in possession of classified documents.
Ultimately, the judge sided with the government, and Martin pleaded guilty more than two years after his arrest. He was sentenced to nine years in prison.
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Maria Rodriguez, the director of the OHSU Center for Reproductive Health Equity. (photo: Christine Torres Hicks/Courtesy OHSU Center)
As abortion bans sweep the nation, OB-GYN residents rotate to abortion-supportive states to meet their program requirements
“I was horrified and angry,” said Rachel, when Roe was reversed.
Following the ban, clinics in Texas have stopped providing abortion care to patients, as well as training to medical residents like Rachel.
Yet as a part of a national program requirement, under the Accreditation Council for Graduate Medical Education (ACGME), Rachel needs to have experience in abortion procedures to become an OB-GYN physician. In Texas, abortion training is now limited to miscarriage procedures, but not hands-on abortion care.
“I went into OB-GYN to help women understand the options they have surrounding their health,” continued Rachel. “I can’t think of another example in any other field of medicine where the law so clearly oversteps the boundaries of the patient-physician relationship by completely removing a safe, effective and well-studied healthcare option.”
Like Rachel, countless OB-GYN residents across the nation are finding their education at odds with recent abortion bans. One year after the Dobbs vote, 14 states have banned abortions outright, with several more imposing six- to 20-week bans. In some states, like Texas, Kentucky, Louisiana and Missouri, doctors could face felonies if they perform an abortion outside of saving a patient’s life. In this harsh new reality, OB-GYN programs nationwide are grappling with the logistical and legal challenges of how to graduate competent residents.
To meet her program requirement, last November, Rachel became the first out-of-state resident at Oregon Health and Sciences University (OHSU) in Portland. Sponsored by its Abortion Care and Training Fund, OHSU is now accepting OB-GYN residents from restrictive states for a month-long rotation in abortion procedures and surgeries, along with patient counseling.
“I had so little familiarity about what abortion care looked like that I really didn’t know what to expect at OHSU,” said Rachel, who called conversations around abortion there “more down-to-earth, practical, and straight-forward than I would have assumed”.
“I was unsure how I would reconcile having sought out this training with my plans to return to a state where abortion is illegal,” she said. Back in Texas now, Rachel called it “frustrating” not being able to use her training. While she can advise patients to travel out of state for abortion care, “you have to be very careful and not document that you’ve had those discussions, because you put yourself at a lot of risk.”
Nationally, Oregon ranks as the state most protective of abortion.
“You really can’t separate out abortion from obstetrics and gynecology. It is basic essential healthcare,” said Alyssa Colwill, assistant professor of obstetrics and gynecology in the OHSU School of Medicine, who heads the new partnership. “And if you restrict a portion of it, it means that every other aspect of pregnancy is going to be a higher risk.” This includes long-term health complications and even a patient’s ability to get pregnant in the future.
OSHU’s new offering falls under the umbrella of its well-established Ryan Residency Training Program, a national initiative that directly works with more than 100 OB-GYN residency programs across the country to provide abortion training and contraception care.
“There are large ripple effects of these harmful policies that aren’t just limited to somebody trying to get an abortion,” said Colwill. “It is interrupting the obstetrics and gynecology field.”
Post-Dobbs, 19% of all OB-GYN residency programs across the nation – and over 1,100 residents – are located in states with the most restrictive bans. This includes eight Ryan Residency Training Programs.
To help cushion the blow, the Ryan Program at Cedars-Sinai in Los Angeles has created a partnership with its Planned Parenthood affiliate, where residents from a state in which abortion is banned can come to undertake their abortion training requirement. For the safety of its residents, Cedars-Sinai declined to identify the state.
Katrina Heyrana, director of Cedars-Sinai’s Ryan Program, is hoping that its partnership will have a further reach than just medical training.
“One of the great things for [residents] coming over to California to train is that they can see how accessible and how normal abortion care is, and how truly low risk it is … which makes them more likely to become advocates,” she explained.
Still, while out-of-state rotations can help broaden perspectives, Heyrana said it was challenging “for programs in supportive states to be able to accommodate huge volumes of residents from restrictive states, because we also have the responsibility to train our own residents”.
In Oregon, the volume of applicants that OHSU received from abortion-restrictive states was so great that it had to launch its program nine months early, last autumn, to meet the demand. In its first formal application cycle, OHSU received 31 applicants from 21 different programs across 15 different states in which abortion training is limited or restricted.
To meet this demand in training, the national Ryan Residency Training Program, based at the University of California in San Francisco, is partnering with 15 of its programs in supportive states to host and train OB-GYN residents from states in which abortion is restricted.
Kristin Simonson, director of programs and operations at the national Ryan Residency Training Program, emphasized that abortion bans will hit rural areas the hardest, where gynecology often falls to family or general medicine. “It will be even harder now for family medicine residents to get abortion training because it’s not a specific requirement for their specialty,” she said. This creates a type of maternal care desert, where few general physicians are trained in pregnancy complications that might require termination.
Last month, the American College of Obstetricians and Gynecologists (ACOG) presented research that looked at how abortion bans are influencing medical students’ decisions about where to apply for residency, across all specialties. It found that over half (58.1%) of all respondents said they were unlikely to apply to a residency program in a state with abortion restrictions, potentially shifting the geographical distribution of healthcare.
In obstetrics and gynecology specifically, abortion bans also appear to be affecting the number of persons entering the field. In April, the AAMC Research and Action Institute noted a 5% decrease in applicants for OB-GYN programs across all states, post-Dobbs. In states with abortion bans, there was a 10% decrease.
“They’re worried that they’re going to be criminally charged, they’re going to lose their license, they’re going to be put in prison for providing basic obstetric care,” said Colwill at OHSU.
Misha Pangasa is another out-of-state resident, from the University of Utah in Salt Lake City, who received her abortion training at OHSU last April. In Utah, abortion is banned after 18 weeks. Its statewide ban on abortion clinics is still tied up in the courts.
For her, being trained in the full scope of reproductive healthcare, including abortions, is wholly necessary – even if the law says she can’t provide them.
“At the end of the day, none of us were meant to be criminals,” said Pangasa, who does not speak for her university. “We are just trying to figure out what the best care is for our patients and how to give them that.”
Colwill said she had the greatest hopes that abortion rights will one day be restored. Until then, the institute will continue accepting out-of-state OB-GYN residents.
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Mr. Roche beneath the Williamsburg Bridge in Brooklyn, where he retreated for a while after the videos appeared in August. (photo: Gili Benita/NYT)
Kyle Roche was a rising star in the field of cryptocurrency law — until his career imploded. Who orchestrated his downfall?
Now a new opportunity beckoned. Two businessmen had flown Mr. Roche over from Miami to discuss investing in a new business venture he was forming. A waiting car whisked him from Heathrow Airport to meet the men in a plush townhouse in Mayfair.
That evening, Mr. Roche went to dinner with one of the men, who identified himself as Mauricio Andres Villavicencio de Aguilar. Mr. Villavicencio, who said he was from Argentina, had picked one of London’s fanciest restaurants, Jean-Georges in the Connaught hotel.
When he woke up the next morning, Mr. Roche says, he felt groggy. He couldn’t remember much aside from being pretty sure he had spotted Mr. Villavicencio’s business partner, a Norwegian named Christen Ager-Hanssen, lurking at a nearby table. The brain fog was odd because he didn’t think he’d had all that much to drink. As he flew back to Miami a few days later, Mr. Roche couldn’t shake the feeling that something was amiss.
Months passed. Then, one day last summer, Mr. Roche’s world detonated. A website called Crypto Leaks posted two dozen videos of him that had been secretly recorded during his meetings with Mr. Villavicencio and Mr. Ager-Hanssen.
The videos portrayed Mr. Roche and his law firm, Roche Freedman, as being in the pocket of one of their crypto clients. In one clip, Mr. Roche revealed that the client, a company called Ava Labs, had granted him tens of millions of dollars’ worth of its digital tokens, making him beholden to the company and its founder, whom he likened to a “brother.”
In other clips, Mr. Roche made it sound like his sole concern, even when representing other clients, was to promote Ava Labs’ interests. He bragged that he had managed to distract regulators from looking into Ava Labs and suggested that his lawsuits against other crypto companies were designed to harm Ava Labs’ competitors.
In the videos filmed at Jean-Georges, Mr. Roche looked intoxicated, waving his hands, cursing and referring to jurors as “idiots.”
After he got over his initial shock, Mr. Roche realized he had a major problem on his hands. The videos made him look corrupt. To defend himself, he published a piece on Medium saying they had been “illegally obtained” and “spliced out of context,” and he denied being in cahoots with Ava Labs.
It was too late. One after another, companies that Roche Freedman had sued filed motions to disqualify the firm from their cases. In October, the first of those motions succeeded: A federal judge in New York tossed Roche Freedman from a case it had filed against Tether, the operator of the world’s most used “stablecoin.”
Within days, Mr. Roche was forced to resign from the law firm he had founded. With his career in tatters, he says, he enrolled in ethics classes and began to see a therapist.
Mr. Roche was felled by his own loose lips and his overly cozy relationship with a client. But he also was the victim of an elaborate international setup.
The question was: Who was behind it?
The New Sheriff
Mr. Roche grew up in a working-class family in Buffalo. The oldest of four siblings, he shared a bedroom with intellectually disabled twin brothers. Watching them struggle with simple tasks while he breezed through school made Mr. Roche feel both guilty and determined to succeed so he could one day provide for them.
After attending Purdue University and working for a few years as a management consultant, he enrolled at Northwestern University’s Pritzker School of Law. During his first semester, in the fall of 2013, he caught the crypto bug. Joe Delich, a classmate who later worked with Mr. Roche at his law firm, remembers him constantly checking the price of Bitcoin on his laptop during classes. Mr. Roche cashed out before a big price drop, earning about $100,000 in profits. He used the money to pay his tuition.
As a third-year student, Mr. Roche collaborated with a professor on a paper discussing Bitcoin’s virtues as the first currency free from government interference. That led to an opinion piece in The Wall Street Journal.
“That was the first moment I thought, ‘Oh, wow, maybe I can do something with this,’” he said.
By then, Mr. Roche was a first-year associate at Boies Schiller Flexner, where he was developing a reputation as the kid who understood crypto. When a colleague in Miami approached him a few days after the Journal piece with a Bitcoin-related case, he jumped at the opportunity.
The case pitted a man named Ira Kleiman against Craig Wright, the Australian computer scientist who claims to be Bitcoin’s enigmatic creator, Satoshi Nakamoto. Mr. Kleiman wanted to sue Dr. Wright for defrauding his brother David, a paraplegic computer forensics expert who had died in his mid-40s, out of billions of dollars of Bitcoin they supposedly mined together in Bitcoin’s early days.
The facts were murky: There was evidence that Dr. Wright and David Kleiman had indeed been friends, and David Kleiman had been known to carry around his neck an encrypted hard drive that might or might not have contained the passwords to Bitcoin wallets. But many people considered Dr. Wright a fraud, calling into question the notion that he had mined early blocks of Bitcoin, much less cheated someone out of them.
To Mr. Roche, that was one of the allures of the case. If he could make Dr. Wright hand over his files during discovery, he might be able to solve Bitcoin’s great enduring mystery: Satoshi Nakamoto’s true identity. Mr. Roche and his young Miami colleague, Velvel Freedman, were soon devoting most of their time to the case.
In 2019, with the Kleiman case slowly progressing toward a trial, Mr. Roche met a new client, who was locked in a dispute with a crypto company. In a matter of days, he negotiated a lucrative settlement on the client’s behalf. As a token of his gratitude, the client agreed to invest $7.5 million with Mr. Roche and Mr. Freedman so they could start their own law firm. At first, Mr. Roche set up shop in a co-working space in Brooklyn, but when the pandemic hit he joined Mr. Freedman in Miami.
Their firm, Roche Freedman, soon made a splash. Mr. Roche had watched with increasing skepticism as a number of crypto start-ups rode Bitcoin’s growing popularity by marketing new digital coins that surged in value and then crashed. It reminded him of pump-and-dump scams in which a group inflates the price of a stock by talking it up publicly before selling all at once and making off with the profits.
Regulators didn’t seem to be doing anything about it, so Mr. Roche decided he would. On April 3, 2020, Roche Freedman filed lawsuits seeking class action status against seven issuers of digital coins, alleging they had pumped what amounted to unregistered securities with false statements and then dumped them, leaving retail investors holding the bag.
It also sued four crypto exchanges for enabling the coin issuers’ conduct, foreshadowing some of the legal arguments the Securities and Exchange Commission used to sue Binance and Coinbase this month. (Binance and Coinbase have vowed to fight the S.E.C. in court.)
Those suits were just an opening salvo: Sixteen months later, Mr. Roche filed his biggest securities fraud case yet. It alleged that a British entrepreneur, Dominic Williams, and entities he controlled had swindled investors out of billions of dollars by aggressively promoting, and then dumping, a digital coin tied to a grandiose plan to revolutionize computing.
Mr. Williams had boldly proclaimed that his Internet Computer blockchain — a decentralized network of computers powered by a digital token called ICP — would supplant the big cloud services offered by Amazon and Microsoft and become humanity’s primary computing platform. But after an initial surge that briefly made it one of the most valuable cryptocurrencies, ICP had plummeted 92 percent — a collapse that Mr. Roche’s lawsuit attributed to “massive” selling by Mr. Williams and other insiders. (Mr. Williams denied the allegations.)
If crypto was the Wild West of finance, Mr. Roche had announced himself as the new sheriff. But sheriffs, as he would soon learn, make enemies.
A Big Verdict
Around the time Mr. Roche was working on his first pump-and-dump lawsuits, he befriended Emin Gun Sirer, a Cornell University computer science professor who was hatching a cryptocurrency project of his own in the Brooklyn co-working space where Mr. Roche initially worked. Mr. Roche agreed to do legal work for Dr. Sirer’s company, Ava Labs, in exchange for an equity stake and a small percentage of the cryptocurrency tokens it planned to issue.
Such arrangements aren’t uncommon in the tech industry. Mr. Roche’s former boss David Boies had struck a similar one with Theranos, the blood-testing company whose founder, Elizabeth Holmes, was later convicted of fraud. The scandals involving Theranos and another client, Harvey Weinstein, had badly tarnished Mr. Boies’s reputation, but to Mr. Roche he remained a role model.
When Mr. Roche reached his deal with Dr. Sirer in September 2019, he says, there was no guarantee that Dr. Sirer’s project would be successful. At the time, the tokens granted to him were valued at less than 3 cents each.
A year later, Dr. Sirer’s blockchain, Avalanche, went live. As crypto fever spread, its AVAX tokens rocketed to more than $100, making Mr. Roche a multimillionaire.
Mr. Roche’s compensation agreement with Ava Labs was supposed to be confidential, but anyone who wanted to gather intel on him would soon be able to find out about it. In February 2021, Roche Freedman fired one of its partners, Jason Cyrulnik. He hit back with a lawsuit that disclosed each partner’s share of the AVAX tokens.
That fall, Kleiman v. Wright went to trial in U.S. District Court in Miami. Mr. Roche gave a fiery opening statement during which he repeatedly pointed an accusatory finger at Dr. Wright.
In the end, the trial didn’t resolve whether Dr. Wright had really invented Bitcoin, but the jury ordered him to pay $100 million in damages to a company Ira Kleiman had inherited from his dead brother. (The judge later tacked on $43 million in interest.) Mr. Roche and Mr. Freedman toasted over cocktails at a Miami restaurant. Their law firm stood to make more than $10 million.
With the Kleiman trial over, Mr. Roche turned to a project he and Dr. Sirer had been discussing: Ryval, a company that would help people raise money on Avalanche to pay for lawsuits. Mr. Roche saw it as a GoFundMe for litigation and thought it could level the legal playing field between individuals and big corporations.
But while he was plotting his new venture, someone was plotting his downfall.
The Setup
In December 2021, Mr. Roche received an email from someone he trusted introducing him to Mr. Villavicencio, according to a copy of the message reviewed by The New York Times. Mr. Villavicencio presented himself as an associate of Mr. Ager-Hanssen, a venture capitalist who was interested in Mr. Roche’s new project. Mr. Roche had no idea who the two men were, but he welcomed the approach: He was raising money for Ryval, which had received some attention in the crypto press.
After an introductory Zoom call, Mr. Roche agreed to fly to London at the men’s expense the next month.
They met at Mr. Ager-Hanssen’s townhouse office, where things soon took a strange turn: According to Mr. Roche, Mr. Ager-Hanssen pressed his index finger to Mr. Roche’s forehead — “I didn’t think it was a gun motion, but I thought he was trying to intimidate me” — and said that if he was going to invest with him, he needed to know everything Mr. Roche was capable of.
In hindsight, Mr. Roche wishes he had gotten up and left. Instead, he took it as a cue to sell himself harder. According to Mr. Roche, Mr. Ager-Hanssen spent the next couple of hours goading him into bragging about his relationship with Ava Labs while Mr. Villavicencio, who was sitting across a table from him, secretly filmed him.
Armed with the information he had gleaned from the lawsuit filed by the fired Roche Freedman partner, Mr. Ager-Hanssen coaxed Mr. Roche into saying he had been granted 1 percent of the supply of Avalanche’s AVAX tokens. At the time, that would have been equivalent to more than $100 million. (Mr. Roche says he exaggerated the 1 percent figure, and AVAX tokens have since lost 80 percent of their value.)
Mr. Ager-Hanssen then asked Mr. Roche to give examples of how he had made himself useful to Ava Labs executives.
“They haven’t been sued yet, and there’s a reason for that,” said the baby-faced Mr. Roche, wearing a blazer over a button-down shirt and sweater, according to a video clip from the meeting.
“Brilliant,” Mr. Ager-Hanssen replied. “Good answer.”
Mr. Roche later elaborated. “I deal with making sure that the S.E.C. and the C.F.T.C. have other magnets to go after,” he said, referring to the Commodity Futures Trading Commission. He added, “Litigation can be a tool” to attack competition. “It’s a fantastic tool.”
That night, when Mr. Roche got to Jean-Georges, he says, he found Mr. Villavicencio at a table and a drink waiting for him. Mr. Roche recalls Mr. Ager-Hanssen arriving about 15 minutes later and sitting at a nearby table with a tall blond man. Mr. Roche says the rest of the evening was a blur. He now believes the drink was laced with a drug, though he has no proof.
In one video clip from the restaurant, Mr. Roche revels in his power to crush companies with lawsuits. In another, Mr. Villavicencio asks him whether Ava Labs has sued any of its competitors. Mr. Roche replies, “No, they have me do that on behalf of the class,” suggesting that he filed his class actions against other crypto companies at Ava Labs’ behest.
After the dinner at Jean-Georges, Mr. Roche never saw Mr. Villavicencio again, though he did meet one last time with Mr. Ager-Hanssen in New York.
On Aug. 26, Mr. Roche was in California to attend a wedding when one of his clients came across the Crypto Leaks videos on Twitter and sent him a link.
Blindsided, he scrambled to understand when and where they had been recorded. Once he pieced it together, he called Mr. Freedman and reached out to clients to do damage control.
Mr. Roche’s biggest worry was his comments suggesting he had filed lawsuits to harm Ava Labs’ competitors and to distract regulators. It was baseless bluster, he now says, blaming the blue-collar kid in him who was trying to impress a prospective investor. He says he started putting together the first lawsuits a month before he met Dr. Sirer, the Ava Labs founder.
Dr. Sirer denied that he or Ava Labs had anything to do with those lawsuits, some of which he said he strongly disagreed with. Six weeks before Crypto Leaks published its videos, Ava Labs’ general counsel wrote an article criticizing one of the Roche Freedman lawsuits as “scurrilous.”
To insulate his law firm, Mr. Roche recused himself from the lawsuits Roche Freedman had filed against crypto companies, sold his stake in Ava Labs back to the company and stopped representing it. (Mr. Roche declined to say whether he profited on the sale.)
When it became clear that wouldn’t be enough, he resigned from his firm, which was renamed Freedman Normand Friedland.
‘Someone That Doesn’t Exist’
A week after the videos surfaced, Mr. Roche got another jolt: A friend of one of his colleagues reported that he had heard rumors at a crypto event that Mr. Roche’s life was in danger, according to an affidavit later filed in court. Spooked, Mr. Roche and his fiancée hunkered down in a short-term rental in Brooklyn.
Mr. Roche felt that his world was unraveling. He says he became so stressed that he stopped eating and lost 10 pounds. After several weeks, he and his fiancée returned to Miami but, still worried for their safety, moved to an apartment leased under a relative’s name.
While Mr. Roche’s career imploded, Mr. Ager-Hanssen called for Mr. Roche’s disbarment and tweeted about a report he had compiled on Mr. Roche that largely repeated the Crypto Leaks allegations. He also emailed Mr. Cyrulnik, the former Roche Freedman partner, and offered to help him prove his case against Mr. Roche and his former firm.
To Mr. Roche, the implication was clear: Mr. Ager-Hanssen had set him up.
In an interview, Mr. Ager-Hanssen denied that. “This was not an operation run by me at all,” he said. “It was run by someone else.” He said that he had been genuinely interested in investing in Ryval, that Mr. Villavicencio had filmed the videos at his office without his knowledge and that he wasn’t at Jean-Georges that night. Mr. Ager-Hanssen said he thought he knew who was behind the operation, but he wouldn’t reveal the person’s identity.
Mr. Villavicencio, for his part, seems to have disappeared. Attempts to reach him at the phone number and email address he gave Mr. Roche were unsuccessful.
Mr. Ager-Hanssen said he didn’t know Mr. Villavicencio’s whereabouts. He said he had met the man only a few weeks before Mr. Roche came to London and allowed that Villavicencio was probably not his real name. “Of course, it’s someone that doesn’t exist,” he said.
But Mr. Ager-Hanssen, in addition to running his venture capital firm, has long had a sideline digging up dirt on behalf of wealthy clients entangled in business disputes in Britain and Scandinavia.
On multiple occasions, he has secretly recorded his targets. For example, in a 2014 interview, he recounted how he had snared the adversary of a Swedish financier with a hidden microphone and boasted that he employed former intelligence officers from the C.I.A., MI6 and Mossad.
But if Mr. Ager-Hanssen did set Mr. Roche up, who hired him to do it — and why?
A Series of Clues
Plenty of people had reason to celebrate Mr. Roche’s downfall.
First in line were Dr. Wright, the man who claims to be Satoshi Nakamoto, and Calvin Ayre, a gambling tycoon who bankrolls Dr. Wright. Dr. Wright quickly sought to exploit the videos, filing an unsuccessful motion to disqualify Roche Freedman from the Kleiman case. And after the videos came out, Mr. Ager-Hanssen became chief executive of nChain, a company that Mr. Ayre funds and that employs Dr. Wright as chief science officer.
Through a spokeswoman, Mr. Ayre acknowledged that he and Dr. Wright were “pleased” when the videos came out. But they denied having anything to do with the London sting.
Mr. Roche believes them because he thinks he knows who hired Mr. Ager-Hanssen: Mr. Williams, the British entrepreneur who was the target of Roche Freedman’s biggest pump-and-dump lawsuit.
A series of clues, documented by his former law firm in court filings, led Mr. Roche to that conclusion. The first is that on May 12, 2022, Mr. Williams wrote on Twitter that he was “coming for” his critics. That was the same day the cryptoleaks.info domain name was registered.
Then, on June 9, 2022, the Crypto Leaks website went live. Billing itself as the defender of “the honest crypto community,” it posted two reports that aligned with Mr. Williams’s interests. The first espoused a complicated theory about the ICP token crash that Mr. Williams had previously floated on Twitter.
The second attacked The Times for an article it had published about the crash. Mr. Williams tweeted a link to that Crypto Leaks report, calling it “Gobsmacking.” The Dfinity Foundation, a Swiss nonprofit that Mr. Williams created to oversee his blockchain, has since sued The Times for defamation in New York. The Times is seeking to dismiss the suit.
The videos of Mr. Roche were the crux of Crypto Leaks’ third exposé. After they were published, Mr. Williams and Dfinity filed a motion to disqualify Roche Freedman as plaintiffs’ counsel in the pump-and-dump lawsuit, saying Mr. Roche’s comments demonstrated “a disregard for the integrity of the judicial system.”
In court filings opposing the motion, Mr. Roche’s former firm accused Mr. Williams of being behind Crypto Leaks and said the videos filmed at Jean-Georges showed signs of deepfake alterations. It also blamed Mr. Williams for the rumored death threats against Mr. Roche.
Pete Padovano, a spokesman for Dfinity and Mr. Williams, denied that anyone at the foundation had made death threats. Asked if he was connected to Crypto Leaks, Mr. Williams said, “We appreciate the coverage of Crypto Leaks and believe their articles speak for themselves.”
Mr. Roche spent last fall lying low, but he has recently begun to rebuild his career as a solo practitioner.
In April, he won a $12.5 million verdict on behalf of six former Cantor Fitzgerald partners who sued the Wall Street firm for withholding some of their compensation. The judgment, which Cantor has appealed, opened the way for Mr. Roche to file a separate class action against the firm. Mr. Roche is also representing dozens of investors in a dispute with Coinbase.
But Mr. Roche’s videotaped remarks continue to dog him and his former firm. Last month, the judge overseeing the pump-and-dump case granted Mr. Williams’s motion and disqualified Freedman Normand Friedland as plaintiffs’ counsel.
The judge cited Mr. Freedman’s continuing friendship with Mr. Roche — and the fact that they together control a cryptocurrency wallet holding more than a million AVAX tokens. He also voiced concern that the law firm was consumed by “extreme animosity” toward Mr. Williams, which might lead it to turn down equitable settlement offers.
Unless the lead plaintiff can enlist new lawyers by August, the lawsuit is essentially dead. In Mr. Roche’s view, the plot against him worked to perfection.
READ MORE 
Cheyenne Hinojosa with her younger daughter, who was taken by child welfare workers shortly after being born. (photo: Jaida Grey Eagle/ProPublica)
After fighting to win back her parental rights, a young Native American mother prevailed. Then the state came for her second child.
In 2018, not long after Hinojosa’s daughter turned one year old, a South Dakota Department of Social Services caseworker had come to Hinojosa’s home in Huron and taken her away. Two years later, a county judge terminated Hinojosa’s parental rights, an act so permanent that in the legal world it’s considered the death penalty of child welfare cases.
The decision meant that Hinojosa was no longer legally her daughter’s mother.
“I felt my heart just stop,” Hinojosa said of the moment she heard the judge’s ruling.
She asked her attorney to appeal, though he warned Hinojosa not to get her hopes up. In his four-decade career, he’d never had a parental rights termination ruling reversed. For almost a year, Hinojosa barely had contact with her daughter.
All that changed in July of 2021, when her husband reached across the gas station counter and handed her documents with the words “Supreme Court of the State of South Dakota” near the top. Toward the end was the court’s unanimous decision restoring Hinojosa’s parental rights. She started to cry.
“I'm back in the game,” Hinojosa remembers thinking.
In their ruling, the justices seemed particularly disturbed by one important aspect of the case: As an enrolled member of the Lower Brule Sioux Tribe, Hinojosa and her family should have had powerful federal protections under the 1978 Indian Child Welfare Act.
Under ICWA, the state Department of Social Services and the local court had a much higher legal bar to meet than in most child welfare cases before they could terminate Hinojosa’s parental rights. And according to the state Supreme Court, the case against her had failed to meet that higher standard, which it noted was created by the law’s authors “to prevent the breakup of the Indian family.”
Against the odds, Hinojosa became one of a small number of parents to have their rights restored by South Dakota’s highest court. It was a moment of validation for a young Native American mother who’d been told throughout the process that she wasn’t fit to be a parent.
Hinojosa’s triumph was short-lived. She had assumed that, with her rights restored, her daughter would be swiftly returned to her custody. She was wrong. And there was yet another fight on the horizon. A month later, Hinojosa learned she was pregnant. Before her second daughter was even a day old, the state was moving to take custody of her as well.
When ICWA became law 45 years ago, the goal was to counteract a century of federal policies that had broken up tribal families. Congress meant to make it harder to terminate the rights of Native American parents, particularly over subjective beliefs about parenting, like that wealthier couples who are not Indigenous would provide a better life for children.
Since its passage, ICWA has played a key role in keeping many Native American families intact, according to tribal leaders, attorneys and child welfare experts. And while federal foster care data — the only national dataset that describes outcomes of the child welfare system —doesn’t track whether a child is covered by the law, a ProPublica analysis found that, in recent years, children identified as Native American were less likely to be taken permanently from their parents than white children once they have entered the system.
The reverse is true in a handful of states, including South Dakota. There, more than 700 Native American children — or about one of every 40 living in the state — experienced the termination of their parents’ rights from 2017 to 2021, the ProPublica analysis found. That was one of the highest rates in the country and nearly 13 times the rate for white children in the state.
“ICWA only works if you follow it,” said Marcia Zug, a professor of family law at the University of South Carolina School of Law.
One issue, child welfare experts said, is that ICWA collides with another federal law. The Adoption and Safe Families Act, passed in 1997, created strict timelines to reduce the amount of time children spend in foster care and free them up for adoption. Once 15 months have passed since a child has been removed from their parent, in most cases child welfare agencies must file for termination of the birth parents’ rights. If they don’t, states can lose federal funding.
These two pieces of legislation are sometimes at odds in state courts. While ASFA incentivizes speedy decision-making, ICWA mandates efforts that can be more comprehensive and expensive for state and local child welfare offices. In 2005, South Dakota’s Supreme Court became the first in the country to rule that ASFA does not take precedence over ICWA. A patchwork of legal determinations across the country has bred confusion, however.
“I wish the feds would clear it up and just come out and say, ‘With regard to Native children, either in tribal court or in state court, under ICWA these timelines don’t apply,’” said B.J. Jones, the director of the Tribal Judicial Institute at University of North Dakota School of Law.
Looming over all of this is an existential threat to ICWA. The U.S. Supreme Court heard oral arguments in November in a challenge to ICWA brought by three couples who say that the law’s preference for placing adoptable Native American children in Native households is outdated and biased against white families and should be struck down. That argument is opposed by a coalition of nearly 500 tribes, as well as dozens of state attorneys general, child welfare and tribal rights organizations, which have filed briefs in support of preserving ICWA. The court’s decision is expected this month.
Though the current debate centers on adoption, Kimberly Cluff, legal director of the California Tribal Families Coalition, said the termination phase of the child welfare process is what hurts Native American families.
“Creating family for children is a wonderful thing,” she said. “It’s cutting off of other family that’s the problem.”
Though Hinojosa’s mother lived for a time on the Lower Brule Sioux Tribe reservation in central South Dakota, Hinojosa has spent most of her life in small towns around the state that are predominantly white. After her father, who was white, died when she was 18, Hinojosa developed a stronger connection to her Lower Brule heritage. She found an appreciation for the artwork and language, picking up Lakota and Dakota words from her mother and an aunt.
When she was 20, Hinojosa became pregnant. Though the pregnancy was unplanned, she had always wanted to become a mother.
“I was happy. Scared. You know, the mixed emotions of a first-time mom,” she said.
The baby girl was born healthy in the fall of 2017. (ProPublica is not naming either of Hinojosa’s children to protect their privacy.) Ten months later, Hinojosa and her daughter’s then-28-year-old father, who is from the Crow Creek Sioux Tribe, got married.
The state Department of Social Services made its first appearance in the family’s life not long after that. In June 2018, someone called the police on Hinojosa and her husband for smoking marijuana at home, and officers cited her husband for possession of drug paraphernalia. Not long after that, Hinojosa went to an anti-abortion counseling center in Huron hoping to get free diapers and formula and blurted out to a worker that she’d smoked marijuana that day. She said the worker reported it to Social Services, which led to her daughter spending a month in foster care before she was returned home.
In early October of that year, documents show, a caseworker arrived unannounced at 9 a.m. in response to another report about the couple. Hinojosa and her husband were asleep, and a roommate let the woman inside. The caseworker wrote in her report that the baby’s diaper was so soiled it was wet to the touch, that she was left alone and unsupervised — one of the more serious allegations against the couple — and that she was hungry.
The caseworker also noted “life threatening” conditions in the household: pieces of candy and wrappers on the floor, moldy baby bottles, a fan with no cover on it, cockroaches in the kitchen and prescription bottles in the bedroom. Caseworkers removed the baby, and a court later deemed her an “abused and neglected child.” She was placed in foster care with Hinojosa’s sister-in-law, who lived about 45 minutes away.
The removal, Hinojosa said, devastated her. But she said she was also immature and slow to appreciate the gravity of the situation. So while she signed up for mental health services, a chemical dependency evaluation and parenting classes, she did not complete them. In their reports, caseworkers noted that she often showed up late to weekly visitations with her daughter or canceled. Though the caseworkers wrote that Hinojosa’s daughter was “excited” to see her and was “attached” to her, they also made critical notes. “Cheyenne sat on the couch for the majority of the visit,” read one. “Cheyenne brought Burger King” for her daughter, another said, “but ate most of the food.”
Over and over, the reports mention out-of-control marijuana use: “Cheyenne’s lifestyle is characterized by using illegal drugs, which is prioritized over planning and caring for” her daughter, said one.
Hinojosa has always maintained that her marijuana use was never habitual. She was also baffled by caseworkers’ contention that “no adult in the home will perform parental duties.”
“I’m the one who's bathing her, changing her, feeding her, all that. Taking her to appointments,” she said. “But they still wanted me to say I neglected her.”
The South Dakota Department of Social Services declined interview requests and did not respond to a detailed list of ProPublica’s questions about Hinojosa’s case.
The paperwork also said little about the turmoil in Hinojosa’s life. Eight months after their daughter was taken, Hinojosa left her husband and was effectively homeless, sleeping on friends’ and relatives’ couches. She did not have a car. She struggled to hold a job.
About 13 months after the baby was removed, a caseworker emailed their latest report to the Beadle County State’s Attorney, which has jurisdiction over child welfare cases in Huron, saying: “Please note we are requesting no further efforts on both parents,” and requesting a termination of parental rights hearing within 60 days. Beadle County Circuit Court Judge Jon Erickson granted the request; in December 2019, Social Services cut off the services it had been providing to Hinojosa.
One of the most important mechanisms of ICWA is the requirement that social service caseworkers make “active efforts” to help Native American parents stay in their children’s lives and hopefully regain custody. That includes providing transportation to visits and to therapy, as well as access to culturally appropriate programs.
The standard is lower in cases of children who do not qualify for ICWA. Under the Adoption and Safe Families Act, child protective service workers only have to provide “reasonable efforts” to keep families together. After a child has been in foster care for 15 months, the state can end those efforts and file for a termination of parental rights. ASFA also says the state can stop those efforts early if it determines that abuse or neglect is chronic or severe.
ASFA’s passage resulted in a large increase in the number of terminations. According to a recent study, the chances a child in the U.S. will experience the severing of their legal relationship with their parents roughly doubled from 2000 to 2016.
In Hinojosa’s case, the active efforts made by caseworkers included not just assigning her to parenting classes and setting up visitations, but also providing transportation. Although Social Services never explicitly mentioned ASFA in its simultaneous request to stop providing Hinojosa with these services, the timing of the proposed termination — roughly 15 months after her daughter was removed — followed the law’s guideline.
Around the time that Social Services cut off services to Hinojosa, her life was finally stabilizing. She moved in with her mother. She reenrolled in parenting classes. She began meeting with a behavioral analyst named Valere Walton, who started Hinojosa on an intensive case management plan to help her develop better parenting skills.
Hinojosa and her court-appointed lawyer were preparing to present all this at a termination hearing scheduled for March 2020. Then COVID hit. Seven months passed before the hearing could be rescheduled. Not realizing that Social Services had cut off active efforts, Hinojosa continued calling and asking for visits with her daughter.
Walton said she saw firsthand that Hinojosa was asking for home inspections and drug tests.
“This young lady was asking social services, ‘Please come into my home, see the changes I’m making,’” said Walton. “They wouldn’t even try.”
In September 2020, the hearing to terminate Hinojosa’s parental rights was convened in the limestone Beadle County Courthouse in the center of Huron. Her then-husband attended, but the couple was headed for a divorce and he was already in the process of voluntarily terminating his parental rights. (He did not respond to requests for comment.)
Under ICWA, the judge had to determine that the evidence proved “beyond a reasonable doubt” that returning custody to Hinojosa was “likely to result in serious emotional or physical damage to the child.” When Congress wrote the law, lawmakers chose this standard of proof because they believed that separating parents and children “is a penalty as great, if not greater, than a criminal penalty.”
Hinojosa’s attorney, Doug Kludt, was optimistic that she had made enough progress to provide a compelling argument for retaining her parental rights. She had completed an eight-week substance abuse program the day before the hearing.
“I thought it was real possible,” he said.
ICWA also mandated that Hinojosa’s tribe receive notification from Social Services about the termination and be allowed to intervene. But no one from Hinojosa’s tribe was in court, even though Social Services had contacted the ICWA offices of the Lower Brule Sioux Tribe many times.
Under ICWA, the court also had to hear testimony from a “qualified expert witness” to provide an assessment of the case from the perspective of someone familiar with the cultural and social norms of the tribe. Raymond Cournoyer testified that, based on his experience as a member of the Yankton Sioux Tribe, the termination of Hinojosa’s rights was best because “drugs and alcohol use is not the Native American way to live your life.” He acknowledged that his opinion was based entirely on Hinojosa’s Social Services casefile, which did not contain any information about the last nine months of her life, including Hinojosa’s claim — supported by her substance abuse counselor — that she had been sober.
Cournoyer, who is now retired, said in an interview that he does not remember Hinojosa’s case, but if he had known the file was nine months out of date it would have been a “red flag” to him.
Hinojosa’s most recent caseworker took the witness stand to reiterate the conditions of the apartment in 2018 and Hinojosa’s marijuana use at the time. While she acknowledged that Social Services had ended its efforts to help Hinojosa nine months before the hearing and that she’d never seen Hinojosa’s current apartment, she testified that Hinojosa had failed to show progress. She said Hinojosa had no bond with her daughter.
Walton, the behavioral analyst, testified there was marked improvement in Hinojosa’s life over the previous year. She added that, in her opinion, Social Services hadn’t just been absent in Hinojosa’s case, it had actively undermined Hinojosa.
“There was a lot of resistance and a lot of desire to continue to terminate Cheyenne’s parental rights,” she told the court. “That is a very loving little girl. And she loves her mom. So to say that there is no bond is a very, very terrible falsehood.”
Hinojosa testified last. She admitted that she should have complied with Social Services requirements sooner, but said that issues with her husband, with money and with transportation impeded her progress. She said she felt confident she could be a better caregiver using the parenting and life skills she’d acquired.
“I love her with all my heart. She is my life,” Hinojosa said of her daughter. “I think of her when I wake up and when I go to bed.”
On cross-examination, Beadle County State’s Attorney Michael Moore pressed her about why she was unemployed, how she expected to afford food and diapers and why she fell short on some of her goals with Walton. His closing argument was mostly about how Hinojosa had run out of time.
“How long are we supposed to wait then?” Moore said. And how long, he asked, was Hinojosa’s daughter supposed to wait? “They had done stuff — what they could do for 15 months. And they couldn’t get her to do anything.”
“I don’t think we should terminate rights just because somebody is poor and can’t maintain a job,” Kludt argued in response. “A young child deserves to be with her mother.” As to how long Hinojosa’s daughter could wait, he said, “If it’s her natural mother, she can wait a little while. I don’t think we should be on some sort of rigid timetable here.”
Minutes later, Judge Erickson terminated Hinojosa’s rights.
Cheyenne met her second husband, Jose Hinojosa, on a smoke break at the sprawling turkey processing plant where they both worked at the time. She was candid with him about the complications in her life; one of their first conversations, they both said, was about her child welfare case.
“When I’m nervous, I babble. And everything just comes out,” she said.
The day before the couple’s wedding, the state Supreme Court reversed the outcome of the termination hearing. In their decision, the justices called out the “glaring defects involving ICWA,” principally the failure to continue efforts to reunify Hinojosa and her daughter. They questioned how Erickson could rule beyond a reasonable doubt that Hinojosa’s daughter was in imminent physical or emotional danger when no evidence had been introduced into the record for the previous nine months. They gave Hinojosa credit for her “ongoing work with counselors on her own accord.”
However, the supreme court’s order did not simply restore custody to Cheyenne. Instead, it ordered that the state “reassess” her, this time following the mandates of ICWA. Social Services essentially started the process all over again, allowing the Hinojosas short, supervised visits with Cheyenne’s daughter. Although the newlyweds were eager to start their own family, her lawyer advised her to wait until the case was closed before having another child.
But it was too late. A month after her wedding, Hinojosa discovered she was pregnant.
“What if they come for this one?” she worried.
On supervised visits with Cheyenne’s daughter, she and Jose told the caseworker they were expecting another little girl and asked if there was any cause for concern.
“Every time we could ask, we asked them, ‘Is she gonna be taken?’” said Jose. “The response was the same: ‘There’s no reason for us to take her.’”
The baby was born in April 2022. Hinojosa and her husband posted photos of the dark-haired newborn on Facebook and sent Snaps and texts to family and friends. The next morning, as Cheyenne was having breakfast with Jose in her hospital room, she looked down at her phone and saw a missed call from her caseworker. When they connected for a brief phone call, her worst fears were realized: Social Services was going to take her younger daughter as well.
“I literally felt the soul leave my body,” she said.
For the next two days before her discharge, Cheyenne and Jose slept as little as possible, passing the baby back and forth, trying to savor their dwindling moments together. When Cheyenne set her down in her bassinet for the last time and turned to leave, the baby let out a little cry. Her parents fell apart.
They left the hospital empty-handed and tearful. For the next several days, they stayed with Cheyenne’s mother; the empty crib in their own house was too much to bear.
In one of the earliest court filings in this new case, a Social Services caseworker alleged that the Hinojosas were neglectful. A sworn affidavit from Social Services said “Cheyenne has made little progress” in her older daughter’s case. The court filing made no mention of the fact that Hinojosa’s rights had been restored or the mistakes that the lower court and Social Services had made. It criticized the Hinojosas’ behavior at visitations with Cheyenne’s older daughter, saying they complained too much that she was “exhausting.”
“Jose and Cheyenne do not have the resources to meet” their daughters’ needs, the affidavit read. “Jose and Cheyenne are routinely using their resources for other things such as eating fast food and shopping.”
About a week after the newborn was taken, Cheyenne and her mother huddled around a phone at Kludt’s office. Across the street in a storefront legal office, Jose sat with his lawyer. The prosecutor, the caseworker and a new judge all dialed in.
After the caseworker explained their reasoning for taking custody, the judge ticked off the facts of the case. It appeared the younger daughter’s removal was based entirely on her older sister’s case. The mother had been divorced and remarried. Jose had never had a Social Services case.
After a brief recess, the judge returned custody to Cheyenne and Jose. Hours later, they met their younger daughter’s temporary foster mother at the Social Services office.
“I grabbed that car seat, and I left that office,” said Jose. “I didn't look back.”
The Department of Social Services did not answer ProPublica’s questions about the legal justification it had for removing the younger child at the hospital. Moore, the prosecutor, said he told Social Services that he thought Cheyenne Hinojosa had shown enough progress to delay termination regarding her older daughter back in 2020.
“Next time, I think that they will listen to me, because of the Supreme Court case,” he said. “It's one of those cases of ‘I told you so.’”
Though the prosecutor stood behind the first case he made against Hinojosa, he conceded that the outcome was the result of trying to enforce two conflicting federal laws — plus the typical human disarray that affects many child welfare cases. It was not, he insisted, an attempt to sidestep ICWA.
“To paint a picture that we’re ignoring this or not following it, I don’t think is fair,” Moore said. “I think that there’s a lot of things that could be done outside of the court system to make this process better.”
For example, he said, in his 30-year career, he has never had a tribe take jurisdiction of a child welfare case and move it to tribal court, which ICWA permits them to do.
“I don’t think it’s necessarily the tribes’ fault. I just don’t think they have the resources,” he said.
Clyde Estes, the chairman of the Lower Brule Sioux Tribe, declined to speak specifically about Hinojosa’s case. But he said his ICWA division is just one person tasked with processing child welfare case requests for the tribe’s roughly 4,500 members, the vast majority of whom live off the reservation. The tribe does not have an ICWA attorney, and as one of the smallest tribes in South Dakota, it has little money and relies mostly on financial support from the federal Bureau of Indian Affairs to fund its ICWA work.
“It really puts us in a tough bind,” he said.
Estes said that things will only get worse if the U.S. Supreme Court strikes ICWA down. While states like North Dakota and Colorado have recently enshrined ICWA tenets into state law, similar bills in South Dakota died during the last session. The state legislature also would not approve the creation of a task force to study the disproportionate impact of the child welfare system on Native American children, a lack of action Estes called “heartbreaking.”
In response, several of the state’s tribes announced their intention to start their own study.
“This is a very serious issue for the future of our children,” said Estes. “They should have the option to be in a Native home on their own lands. Because that’s who they are. And that’s their identity.”
Although ICWA protections ultimately preserved Hinojosa’s family, the law couldn’t put everything back together. Last Thanksgiving, Hinojosa’s family was as close to being whole as it had been in four years. The case with Social Services over her older daughter was still going on, but she and her husband were allowed unsupervised overnight visits. Cheyenne’s older daughter had joined them for the holiday. The Hinojosas’ younger daughter had been back in their care for about seven months and had grown into a chubby, sweet-tempered girl.
Hinojosa’s mother set up tables in the living room. They invited a couple of friends. The spread included ham, mashed potatoes and gravy, chicken and stuffing.
After dinner, Hinojosa realized her older daughter had stopped playing with the other kids and was alone in her room. Hinojosa found the 5-year-old in tears. She said she missed her foster mother and siblings.
“I want to go home. I want to go home,” Hinojosa remembers her saying.
After she calmed her down and put her to bed, Hinojosa went into the basement, where the sound of her own crying wouldn’t be heard. A feeling that had been building for weeks crashed to the surface. She wondered if the long, disruptive process of regaining custody had somehow harmed her daughter.
In the years since she’d been living with an aunt in another town, Hinojosa’s daughter had been diagnosed with emotional disorders and was experiencing developmental delays. Her foster mother had found a school that was helping her achieve her milestones. Many of her doctors were there, too. Social Services had made it clear in their reports that they did not believe Hinojosa understood her daughter’s conditions or had the resources to take care of her. Hinojosa felt a sense of inevitability, certain they were heading towards another termination hearing.
And though their relationship had at times been strained over her efforts to regain custody, Hinojosa always thought her older daughter’s foster mother was a wonderful caregiver. The woman had long made it clear she would adopt the girl. The day after Thanksgiving, Hinojosa said she called the foster mother to tell her, “You’ve done an amazing job with her.” (Hinojosa’s older daughter’s foster mother did not respond to several requests for comment.)
In early December, Hinojosa went back in front of Judge Erickson and voluntarily terminated her parental rights for her older daughter. She knew some people would say that she’d just given up.
“I have to do what’s best” for her, she told herself, “even if it’s not with me.”
Because of her relationship with the foster mother, Hinojosa gets to see her oldest daughter regularly, though she has no legal right or guarantee that those visits will continue. She is relieved the case is over, but also haunted by her final decision. She replays the events of the last four years in her mind, she said, hoping that someday she can explain all of it to her daughter.
How We Measured Terminations of Parental Rights Using Foster Care Data
We analyzed data from the Adoption and Foster Care Analysis and Reporting System to compare termination of parental rights rates across states by race.
The AFCARS data, obtained from the Department of Health and Human Services’ National Data Archive on Child Abuse and Neglect, required steps to clean and deduplicate before we could make comparisons across counties and states. This database had unique identifiers for children called AFCARS IDs, which we used to remove duplicates. For cases in which the most recent report had multiple entries for the same unique identifier, we kept the latest termination of parental rights date. We then filtered the dataset to the entries in which rights for both parents were severed between 2017 and 2021, the last full year covered in the data. Then we grouped this dataset by state and counted the number of terminations by race. To find the rate of terminations per child in each state, we divided our count by the under-18 population from the Census Bureau’s 2017-2021 American Community Survey.
To find how likely children who entered the child welfare system were to be permanently separated from their parents, we identified children placed into foster care from 2015 to 2019, based on having a removal date during that time period. We chose these earlier years to allow time for the foster care cases to resolve. We then flagged which of those children, based on their AFCARS IDs, had their parents’ rights severed between the removal and the end of September 2022, the last day covered in the data.
The data used in this story was obtained from NDACAN via Cornell University and used in accordance with a terms of use agreement license. The Administration on Children, Youth and Families, the Children’s Bureau, the original dataset collection personnel or funding source, NDACAN, Cornell University and their agents or employees bear no responsibility for the analyses or interpretations presented here.
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Malis interim leader and head of Junta, Colonel Assimi Goïta looks on, in Bamako, Mali, on September 22, 2022 during Mali’s Independence Day military parade. (photo: Ousmane Makaveli/AFP)
The junta’s constitutional amendments could let it consolidate power over an unstable nation
The junta, which came to power in an August 2020 coup, has promised to stabilize the country where violent insurgent Islamist groups compete with it and each other for control. Instead, violence on the part of the Islamists and the junta — backed by the Russian mercenary Wagner group — has increased exponentially, with civilians bearing the brunt of the horror.
The vote has been delayed several times, most recently in February of this year, citing logistical reasons. Presidential elections are to be held in February 2024, though it’s unclear whether the junta will adhere to that timeframe.
Some of the proposed constitutional amendments give more power to the president, rather than than the parliament — hence the political opposition. Though it’s unclear whether the current leader, Col. Assimi Goïta, will stand in any future election, certainly an ally or proxy for the junta will. That could effectively legitimize the junta’s control and perpetuate the current violence and instability.
“The fear I have for Mali is that we might see, effectively, the restoration of military power which is kind of like going back to the ‘70s and ‘80s, which are commonly referred to in the African politics literature as the ‘Dark Decades,’” according to Daniel Eizenga of the Africa Center for Strategic Studies. “That was a really terrible time, but [the current situation] looks kind of like a prelude to re-experiencing that,” he told Vox in an interview.
Security forces have already voted, and civilians are set to vote Sunday, June 18 — a simple “yes” or “no” in response to whether they approve of the changes the junta has proposed to the 1992 Malian constitution, created by civilian leadership after the overthrow of dictator Moussa Traoré in 1991. Opposition to the changes include a contingent of influential imams who oppose the idea of Mali as a secular country, as well as political parties and civil society groups that reject mechanisms for the junta to consolidate power under the guise of the democratic process.
However, the international community has pushed for the referendum as part of Mali’s path back to civilian governance; regardless of the flaws in the process, it’s a necessary step in the transition, Leonardo Villalon, a professor of political science and African studies at the University of Florida told Vox. “This referendum is going to be limited and flawed, in the sense that the vote is going to be very difficult to hold in some areas,” he said. “There’s precedent for that, and there’s precedent for widespread acceptance of that,” particularly given the security challenges that Mali faces and its fragile electoral apparatus.
“I’m assuming [the referendum is] going to pass, and the government will make sure it passes,” Villalon told Vox.
The junta promised stability, but violence has only accelerated in Mali
Goïta’s leadership is actually the result of a second coup that he staged in May 2021, seizing power from the transitional president and prime minister. Goïta had previously taken power from Mali’s last elected civilian, President Ibrahim Boubacar Keïta — commonly referred to as IBK — over allegations of corruption and worsening security and economic conditions.
Though the coup sparked international outcry, thousands of Malians had protested IBK’s poor handling of the country’s crises, and supported the military forces as they took the capital Bamako. Islamist terrorist groups and separatist groups flush with weapons and insurgents after Libya’s collapse in 2011 have wreaked havoc across the Sahel region, particularly in Mali, Burkina Faso, and Niger.
“[IBK’s] government was not particularly effective on the security front,” Eizenga told Vox. “The situation has gotten much worse, and it’s gotten worse faster since the junta came to power, and I think they bear a lot of responsibility for that, particularly the violence against civilians. But the situation was trending badly before they came to power, too.”
United Nations peacekeeping forces and French military forces had been in Mali since 2013, in an effort to help the government combat extremist forces. However, the junta effectively forced French forces out in 2022 and on Friday demanded that UN peacekeepers leave the country “without delay.”
Though the efficacy of both forces in containing the violence has been dubious at best, the calls for their removal has more to do with the junta’s efforts to whip up populist, nationalist, and anti-colonial sentiment than it does with the military’s own efforts to stabilize areas where insurgent groups are in control.
Indeed, under the present government, the security situation has rapidly deteriorated, Eizenga told Vox. According to data from the Armed Conflict Location and Event Data Project (ACLED) and the Africa Center for Strategic Studies shared in an email, in 2022 there were 996 violent events involving Islamist groups, which resulted in 3,635 fatalities. As Eizenga told Vox, that makes violence in 2022 “by far the worst on record.” Furthermore, “based on the available data through the first quarter of 2023, we anticipate roughly a doubling of violence since the junta took power.”
That is primarily due to the Moura massacre in Mali’s southern-central Mopti region. As Vox’s Jen Kirby wrote in a March report on the Wagner mercenary group:
In January, a group of independent United Nations experts called for an investigation into reported abuses in Mali, including a potential mass execution in Moura. Malian troops and Russian mercenaries — who are fighting an insurgency — were accused of murdering hundreds of people last March, many of them likely civilians with no apparent ties to insurgent groups.
The junta has defended its actions in Moura, decrying a recent United Nations report on the event and claiming that it was protecting civilians in the area from Islamist violence. But, Eizenga said via email, “part of the logic seems to be to alienate international forces like those comprising [the UN peacekeepping forces], so as to limit scrutiny of the military’s operations particularly with Wagner support.”
The referendum is a difficult start to any potential democratic transition
Despite its failures to stamp out Islamic extremism and the alleged atrocities it’s committed, the junta does have supporters, Villalon said. “They have support and they have a lot of ambivalence — maybe people who aren’t sure about them, but they’re also really dissatisfied with the old guard, the old parties that ruled Mali for so long.”
Some of the opposition to the referendum does come from those “old guard” entrenched political parties, particularly the Parti Pour la Renaissance Nationale, or PARENA and Solidarité Africaine pour la Démocratie et l’Indépendance, or SADI, which were established in the 1990s.
“Too much power in the hands of the future president will squash all the other institutions,” Sidi Toure, a PARENA spokesperson, told Reuters Friday. PARENA is encouraging Malians to vote “no” to the changes, but, Toure said, it’s unclear what the outcome will be. “Mali and Malians are profoundly divided.”
The referendum has brought about a serious debate about the role of religion in society and politics in the majority-Muslim country, particularly as a rejection of the French model of secularism. Imams are a major force of opposition to the draft constitution, which designates Mali as an “independent, sovereign, unitary, indivisible, democratic, secular and social republic.” Some of the most vocal opponents to the referendum are imam Mahmoud Dicko, one of the leaders of the opposition to IBK in 2020, and the Ligue Islamique des Imams du Mali, an association of about 20 Muslim groups. Separatist groups in the north, including the Cadre Stratégique Permanant pour la Paix, la Sécurité et le Développement (CSP-PSD), have also opposed the referendum, saying that the changes are not sufficiently inclusive.
Though Villalon referred to Sunday’s vote as a “referendum on the regime,” Eizenga told Vox that “the hopes for emboldened democracy in Mali, I think, are pretty low.”
Results of Sunday’s referendum are expected within 72 hours after the election, according to Agence France-Presse.
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Flames burn on a natural gas-burning stove in Chicago on Jan. 12. New research from Stanford University show gas stoves emit benzene, which is linked to cancer. (photo: Scott Olson/NPR)
Gas Stoves Pollute Homes With Benzene, Which Is Linked to Cancer
Jeff Brady, NPR
Brady writes: "When the blue flame fires up on a gas stove, there's more than heat coming off the burner. Researchers at Stanford University found that among the pollutants emitted from stoves is benzene, which is linked to cancer."
Levels of benzene can reach higher than those found in secondhand tobacco smoke and the benzene pollution can spread throughout a home, according to the research.
The findings add to a growing body of scientific evidence showing that emissions within the home are more harmful than gas stove owners have been led to believe. And it comes as stoves have been dragged into the country's ongoing culture wars.
What researchers found
Stanford scientists measured benzene from gas stoves in 87 California and Colorado homes in 2022 for the paper published in the journal Environmental Science and Technology. They found both natural gas and propane stoves "emitted detectable and repeatable levels of benzene that in some homes raised indoor benzene concentrations above well-established health benchmarks."
The risks of benzene have long been known. The Centers for Disease Control and Prevention says the chemical is linked to leukemia and other blood cell cancers.
"Benzene forms in flames and other high-temperature environments, such as the flares found in oil fields and refineries. We now know that benzene also forms in the flames of gas stoves in our homes," said Rob Jackson in a statement. He's the study's senior author and a Stanford professor of earth sciences.
With one burner on high or the oven at 350 degrees, the researchers found benzene levels in a house can be worse than average levels for second-hand tobacco smoke. And they found the toxin doesn't just stay in the kitchen, it can migrate to other places, such as bedrooms.
"Good ventilation helps reduce pollutant concentrations, but we found that exhaust fans were often ineffective at eliminating benzene exposure," Jackson said. He says this is the first paper to analyze benzene emissions when a stove or oven is in use.
Researchers also tested whether cooking food - pan-frying salmon or bacon - emits benzene but found all the pollution came from the gas and not the food. That's important because the gas industry often deflects concern about pollution from its fuel, to breathing problems that can be triggered by cooking fumes.
There are no studies out there that say cooking with gas will make someone sick. This is all about increasing risks for certain illnesses.
The gas industry responds
The American Gas Association, which represents natural gas utilities, routinely casts doubt over scientific research showing that burning natural gas in homes can be unhealthy. Last year the powerful trade group criticized a peer-reviewed study showing gas stoves leak benzene even when they are turned off. The AGA offered similar criticism of a 2022 analysis, which showed 12.7% of childhood asthma cases in the U.S. can be attributed to gas stove use in homes.
The AGA said in an email that its still evaluating the study. The National Propane Gas Association, in a statement to NPR, tried to cast doubt on the peer-reviewed research. The NPGA said the Stanford paper "fails to analyze real-world environments," and suggests when cooking with gas "air quality can be managed through numerous measures, including ventilation options such as range hoods or exhaust fans."
Medical experts are starting to take stands against cooking with gas. Nitrogen dioxide emissions have been the biggest concern, because they can trigger respiratory diseases, like asthma. The American Public Health Association has labeled gas cooking stoves "a public health concern," and the American Medical Association warns that cooking with gas increases the risk of childhood asthma.
Gas stoves also emerged as a culture war issue earlier this year after Commissioner Richard Trumka, Jr., of the Consumer Product Safety Commission (CPSC), suggested that the government might consider stricter regulation of new gas stoves.
Lawmakers in the Republican-controlled U.S. House of Representatives recently introduced and passed two pieces of legislation aimed at limiting new regulations on gas stoves. One, called the "Save Our Gas Stoves Act" would block the Department of Energy from implementing proposed energy efficiency standards for ranges. Another called the "Gas Stove Protection and Freedom Act" would prohibit the CPSC from banning or further regulating the sale of gas stoves. It's unlikely either of the bills will become law with Democrats controlling the U.S. Senate and White House.
What can you do about gas stove pollution?
Gas utilities have long researched how gas stoves pollute indoor air and even developed new styles of burners that use less gas and emit less nitrogen dioxide. But manufacturers don't use them, saying they are more expensive, harder to clean and consumers aren't demanding them.
But if you're worried about pollution from cooking with a gas stove, there are some things you can do. The most obvious is to stop cooking with gas and switch to electric.
There are campaigns underway to encourage people to do that, both for health and climate reasons. The main ingredient in natural gas is methane, which leaks into the atmosphere all along the gas supply chain and is a potent greenhouse gas.
Replacing a stove is expensive, though, and there are cheaper interim solutions. You can buy a portable induction cooktop, Consumer Reports has advice here. There are other plug-in appliances, such as toaster ovens, that can reduce the amount of time necessary to use a gas stove.
And when the time comes to replace your stove, there are now government subsidies available through the climate-focused Inflation Reduction Act passed last year. The nonprofit group Rewiring America has a guide here.
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