Last month I I argued that Harvard Law Professor and frequent Fox guest Alan Dershowitz was lying to you by disguising his perfectly arguable view about what the law should be as a statement of what the law is. Specifically, Dershowitz argues that when someone (say, General Flynn) lies to an FBI agent, and the FBI agent knows that it's a lie, and in fact expected the lie, the lie is not material, and therefore not a violation of Title 18, United States Code, section 1001, that familiar and abused element of vast prosecutorial power.
Dershowitz took quite a bit of heat for his pronouncements on materiality. His defenders — here and elsewhere — argued that he's merely arguing what the law should be and isn't being misleading at all. Professor Dershowitz has now doubled down, and has done his defenders no favors in the process.
He starts out honestly and reasonably enough by framing the issue as one of what the law should be:
The question posed by the Flynn case is whether a lie can be material if the FBI already had indisputable evidence of the truthful answer and asked him the question for the sole purpose of giving him an opportunity to lie.
As a civil libertarian, I believe the answer should be “No.” The proper function of an FBI or a grand jury interrogation is to obtain information they do not already have, and not to create a new crime by giving the suspect the opportunity to pass or fail a morality test with criminal consequences.
This is perfectly arguable as a matter of policy; I agree for slightly different reasons.
But Dershowitz cannot abide criticism. It's not enough to clarify that he meant to be normative and not descriptive.
Well, it turns out that the issue is not “well-settled.” Nor did I invent it. In fact, two influential courts — the New York Court of Appeals, in an opinion by one of the most distinguished jurists of the 20th century, and the D.C. district court that is now preparing to sentence Flynn — have sided with my interpretation. (True civil libertarians, however, should be concerned about what the law and policy should be, regardless of whether there is a precedent.)
Leave aside, for the moment, what Dershowitz is trying to sneak past you in the parenthetical — the notion that it doesn't matter if you're deceiving people about what the law is because you should be concerned with what the law should be. Instead, let's focus on the authority he's talking about. Did I miss cases in my analysis? Did Dershowitz, a formidable legal mind, find support that I did not?
No.
In The People v. Tyler, the New York court’s Chief Judge Charles Breitel reversed a conviction for perjury of a former public official who had lied about his connection to a well-known gambler. The court reversed the perjury conviction, holding that:
“The primary function of the Grand Jury is to uncover crimes and misconduct in public office for the purpose of prosecution … It is not properly a principal aim of the Grand Jury, however, to ‘create’ new crimes in the course of its proceedings. Thus, where a prosecutor exhibits no palpable interest in eliciting facts material to a substantive investigation of crime or official misconduct and substantially tailors his questioning to extract a false answer, a valid perjury prosecution should not lie.”
The appeals court cited a district court case in D.C., which held that to interpret “materiality” more broadly would serve no proper legislative purpose. In U.S. v. Icardi, 140 F. Supp. 383, the court held that if “the committee is not pursuing a bona fide legislative purpose when it secures the testimony of any witness, it is not acting as a ‘competent tribunal’ … [and] extracting testimony with a view to a perjury prosecution is [not] a valid legislative purpose.”
So. Let's review. In my post, I cited six different United States Courts of Appeal – six circuits — specifically rejecting Dershowitz' argument.1 Dershowitz now argues that the point is not "well-settled" because . . . in 1978 a New York court interpreting a New York law came to a different conclusion, and in 1956 a federal trial court in D.C. made comments supporting Dershowitz' view on materiality.
This is not a serious argument. An honest commentator or advocate might cite those cases for the proposition that the current rule is wrongly decided and that it should be changed. But no honest advocate or commentator would cite a state court decision on a different statute and a trial court decision from 1956 to say that the law is not "well-settled" when every federal appellate court to take up the issue has explicitly ruled the other way. Notably, though Dershowitz discusses and links the two cases he cites, he utterly ignores the wall of federal authority contradicting his position. He's not saying "yes, there is contrary authority, but it's wrong." That would be honest. Instead, he pretends the contrary authority doesn't exist. If he did that in a brief, he'd be sanctioned. If the government did it in a brief about one of his clients, he'd be outraged. Dershowitz is trading on the fact that non-lawyers will not grasp the legal significance of every single federal court of appeals to consider the issue going one way and a state court and trial court going another. He's using his expertise to deceive.
Note how he frames the dispute with his critics:
One can reasonably disagree on these issues, and I am ready to debate which is the better civil-liberty view.
But that's not the dispute. Some people do agree with the current regime of prosecutorial power, but those aren't the people Alan Dershowitz is complaining about. The dispute is this — what is the law now? Dershowitz is arguing that the law is, at least, unclear, and that the Special Counsel is breaking it. He's making that argument in fora sympathetic to that view, in service of the general narrative that the Special Counsel is lawless and that the Trump Administration is a victim of wrongdoing. He's doing so deliberately. He's lying.
Dershowitz views himself as a principled victim of calumny:
Being principled and intellectually honest means that, sometimes, your positions may conflict with your partisan preferences. For most of my critics, however, it seems that partisanship trumps their fair-weather commitment to civil liberties.
There's nothing principled about Dershowitz' stance. Principled commentators don't use their prestige to lie about what the law is. The law is vastly complicated and often obscure, which helps the government abuse it. Dershowitz' commentary — as he knows perfectly well — is being used to portray the Special Counsel proceedings falsely as an aberration rather than as a continuation of a long pattern of very troubling federal prosecutorial power. That narrative is a barrier to reform, not an incentive to it, because it suggests we can solve the problem by firing the Special Counsel, who is merely doing what prosecutors do every day. That is not a civil libertarian stance; it's the stance of a hack.
Dershowitz suggests that he's been falsely accused of being a Trump supporter. Allow me to clarify. I do not believe that Alan Dershowitz supports Donald Trump in his heart. I only think he's willing to use deceit to support Trump's narratives, and the narratives of Trump's obedient media allies, to get on television and in print. Alan Dershowitz doesn't love Trump. But he loves the camera more than he loves the truth.
- See United States v. Mercedes, 401 F. App'x 619, 620 (2d Cir. 2010) (rejecting argument that false statement about citizenship could not have been material because interviewing agent had already "ruled out the possibility of relying on the statement"); United States v. Moore, 708 F.3d 639, 649 (5th Cir. 2013) ("A statement can be material even if the agency already knew the answers given by the defendant and even if the receiving agent knows they are false."); United States v. LeMaster, 54 F.3d 1224, 1230–31 (6th Cir. 1995) "It is irrelevant what the agent who heard the statement knew at the time the statement was made. A false statement can be material even if the agent to whom it is made knows that it is false." ("The fact that the FBI already knew that LeMaster received $6,000 in cash from Spurrier did not affect the materiality of his false statement to the FBI. A false statement 1231 can be material even if the agent to whom it is made knows that it is false."); United States v. Whitaker, 848 F.2d 914, 916 (8th Cir. 1988)("A false statement 1231 can be material even if the agent to whom it is made knows that it is false."); United States v. Goldfine, 538 F.2d 815, 820 (9th Cir. 1976) ("Darrell Goldfine contends, however, that since the Compliance Investigators knew the answer and were not misled by the falsity, the statement was not materially false. . . . [T]he statement here was clearly material.")United States v. Henderson, 893 F.3d 1338, 1351 (11th Cir. 2018) ("Indeed, a false statement can be material even if the decision maker actually knew or should have known that the statement was false.”) ▲
Last 5 posts by Ken White
- All The President's Lawyers: No Bill Thrill? - September 19th, 2019
- Over At Crime Story, A Post About the College Bribery Scandal - September 13th, 2019
- All The President's Lawyers: - September 11th, 2019
- All The President's Lawyers: I Talked To the FBI But I Only Said Helpful Things - September 5th, 2019
- Make No Law: "Deplatformed" - August 29th, 2019
Envy because the Dersh is getting the good pundit gigs? Or unresolved sexual tension?
Yes, I totally envy talking to Sean Hannity. It's my dream.
Is there somewhere I can subscribe to a weekly update of law professors wrongly giving their opinions as fact in TV interviews?
Ken,
Dershowitz's argument is even worse than you're saying, because the DC District Court he cites isn't even directly on point. It held that there was no proper Congressional purpose in asking a question to which they already knew the answer because that was, in essence, acting as law enforcement rather than in a legislative capacity. It did not hold — did not address — the materiality vel non of lying to the FBI.
Hi Guys!
Jon (fD)
Well, he's not as babealicious as Shannon Bream, admittedly.
You're being overly generous to him. His argument is even more garbage than that.
Any litigator with even five minutes experience understands the difference between
1. A question that "exhibits no palpable interest in eliciting facts material to a substantive investigation of crime or official misconduct and [is] substantially tailor[ed]… to extract a false answer," and
2. A question to which the questioner already knows the answer.
The latter may still be part of an effort at eliciting facts (there's a difference between knowing the truth and having a party admit it, having a party admit the truth of a matter you already know can free you to ask questions about other matters you don't know that don't make sense without the first question having been established, questions you know the answer to can establish whether a witness is truthful and cooperative or dishonest and evasive, etc, etc). And a question isn't substantially tailored to extract a false answer just because a true answer would concede guilt.
Wow. "+5 Insightful," as they say on Slashdot.
Words fall short of expressing the gratitude I feel towards Ken White for what he shares. Came here originally for the Prenda saga, stayed for the first amendment, hooked on the illuminating commentary, love the side of snark.
This is why we built an Internet, people.
Thank you, sir, for being a voice of reason in dark days.
I would like to hear Dersh's comments now that the "D.C. district court that is now preparing to sentence Flynn," and whom Dersh says "sided with my interpretation," has manifestly not done so. The Defense argument that the FBI was entrapping Flynn not only did not work, the judge saw it as Flynn not taking responsibility. This so enraged the judge that Flynn seemed headed for incarceration, despite the prosecution proposing no term of prison.
Ken –
I generally enjoy your takes on all this stuff, but here I have to say that you're dead wrong. The basic fact of the matter is that Alan Dershowitz is correct on this matter, because I want him to be correct.
No ifs, ands or buts about it. The law is not based on a reasoned analysis of precedents, statutes, regulations and the like, but on what I want it to be.
Glad to have settled that for you.
I indicated in the comments to this post’s predecessor, this plea deal is the cut-down version of violation of the Logan Act, conspiracy to commit murder and about two dozen other serious complaints. It’s like dropping twelve counts of vehicular manslaughter when you plow into a parked bus to DUI. And then Trump’s lawyer argues that you weren’t drunk.
I still believe that.
Bob
Can someone ask Q – is Dersh working with or against the ponies?
As a somewhat related question, isn't asking a question that you already know the answer to part of the procedure for witness testimony?
Jon (fD)
Ken, David Nieporent, and Patrick:
Thank you for the insight and follow-up points. As an avid observer but non-lawyer, it's true the arcane details of the legal profession make it easy to baffle the public. This discussion is really useful, and I appreciate the clear language used to enable broader understanding!
Also, @Ken – Did you ever solve that problem where you needed a friend to help you move something? Grant seemed like a tremendous flake.
Breaking! Dersh is lying.
And otherwise, Ken, will Dersh next waterboard Dracula Napolitano into giving up his senior legal correspondent spot on Fox?
Speaking of, Jeff Toobin has criticized at least some aspects of the Mueller investigation without being a fücking idiot.
I'm really waiting for somebody to charge Dersh with sexual harassment so we can have him and Gloria Allred on the teevee at the same time.
Speaking of, why isn't Allred representing basta Michael Avenatti's girlfriend? Ken, you'd do some Court TV pay-per-view commentary on that, amirite?
Among the more adorable features of ADISLTY is that if JB & you were to open each segment of ATPL with an update of AD's lies to us since the most recent previous podcast was published, there's a non-trivial chance that AD will publish at least one more lie to us before he gets to the end of the current episode.
The latest variation on the Where's Waldo? formula get to a whole new level of micro-searching as it requires us to find the shriveled Alan attempting to embed in drawings of beach walks in Greater Martha's Vineyard.
Well, I only know an answer to that based on law school, training, and 24 years of practice. I really feel before I comment I should hear what an engineer thinks is the right answer based on what he views as obvious logical precepts, and possibly a Google search. Also, it's possible that the law and/or practice may have changed since the entire law changes completely every day based on court whim.
At this time you are perfectly capable of stating an opinion,
Jon (fD)
According to your standard of legal reasoning, he already has.
Now finish your cookie.
But why would you want my opinion?
You've established that everyone's opinion about law is equally valid, and that lawyers merely sow uncertainty and reap chaos. How could my opinion possibly carry any weight?
'cause I asked for it. J.
There ya go, Ken. Jon has officially invited you to blast him with both barrels.
That would seem to be a waste of time.
I suppose 'not answering the question by attacking the person who asked the question instead' is something else you learn through 24 years practicing law.
I could be wrong.
Jon (fD)
I learned to spit on trolls.
Consider yourself spat on, troll.
You're tiresome and annoying and I'd like you to leave my site and not come back, please.
A logical argument that I cannot deny. Enjoy thy blog – you have no shortage of sycophants. This will be my last post here. You're welcome. Jon (fD)
Yo! Mr "AngaryHat" —
Cool website. So completely off-topic here, but what's up with that clunky "MilitaryEminentDomain" phrase you're using on the twitters?
Is it just that the proper legal term is simply too obscure? (I'll admit, it took me better than half an hour to remember it, and I knew the term was floating around in the back of my memory somewhere, and thus could search for it.)
The word of the day is “angary”: A – N – G – A – R – Y.
Google "angary".
I heard that Jon (fD) won't be commenting here anymore, but that might have only been hearsay.
"unresolved sexual tension" – who do you think wrote this blog post – Stewart Baker?
I practice insurance coverage and I see a whole lot of hacks use Dersh's tactics. The professional accurately cites scores of cases demonstrating that the current state of the law overwhelmingly supports their position, while the hacks pound the table and — if pressed — cite to an off-topic decision from another jurisdiction as if that settles the issue.
Thank you for calling Dersh out as the hack that I suspect all practicing lawyers see him for.
@Angary
But there's no war….
Thanks for teaching me a new word, though. It's a good one.
Thank goodness you recognize that. Now, based on youtube videos I have learned that the correct answer is that the fringe on the flag means that DC is really only a court of maritime jurisdiction . . .
@MGould it is allowed under the RICO Acception. . . .
I will make sure the door properly impacts upon his posterior upon his exit.
The consolation is that Fox News will buy a new talking head when this current talking head's opinions no longer bolsters their agenda. They'll happily have someone ready to condemn some Democrat by using the opposite arguments Dershowitz is currently espousing to support their Republican buddies and pet agendas. Fox has the integrity of a slug. Their audience will eat it up either way and never once question the party line. After all, we've always been at war with Eastasia.
Sadly, there is always a war.
This is the same sort of argument that pseudoscientists and medical scamsters use to promote their therapy du jour.
Cite a few marginally relevant or aged studies while ignoring the mountains of evidence in the other direction.
[Dershowitz's] narrative is a barrier to reform, not an incentive to it, because it suggests we can solve the problem by firing the Special Counsel, who is merely doing what prosecutors do every day.
————————————————————————————————-
Well, maybe not if it has the net effect of bringing more sunshine and public scrutiny to "a long pattern of very troubling federal prosecutorial power". How effective have more procedural, intra-swamp efforts for reform been so far?
I'm sure Ken is correct about the technicalities of the law here (created how by whom? one wonders) and Dershowitz would probably be more effective as a force for reform if he simply presented the issue to the public from a perspective of moral outrage and government tyranny. But I suspect that his well-honed instincts for twisting legal reasoning to his advantage have simply crowded out his capacity for much else.
Mercury's rhetorical question seemed odd to me, so I felt the urge to do a bit of digging, albeit clumsily.
One immediate answer is the 80th Congress, who enacted Title 18 of the USC into positive law on June 25, 1948. Of course, I doubt they literally authored Title 18 themselves, but it seems as good a place as any to start since the language of §1001 from that day to the present has included "…knowingly and willfully falsifies, conceals or covers up by any trick, scheme, or device a material fact…", so the thrust of the law hasn't really changed in more than 70 years.
But, the main bone of contention (and the lie Dershowitz is spinning) has never been so much the law itself, but rather the definition or standard of materiality it requires. Who is responsible for that is probably best answered with "all those judges in the cases Ken cited".
As an engineer, I only care about the technically correct answers, as those are the best answers. Also, I’d ask the question I already know to be smug and explain why the person is wrong because they didn’t express the very nuance I was looking for. Pedantry at its finest, but without any those impure and dirty traces of didacticism.
I'm hoping Jon the silly English kniggghhhtt comes back so Ken can spat on him a second time.
That said, I'm no sycophant of Ken's. I like a lot of what he writes, but I've disagreed with my share. What a doofus that guy was, and surely still is.
@Cheftengu
You're right.
It's really all about the materiality: you get hauled in for…..something vague and end up getting convicted for "lying" about whether or not you had Russian or Thousand Island salad dressing with lunch a year ago. Enough shit like that and next thing you know a sufficient number of people are pissed enough to flip the table at the voting booth and elect a crazy blowhard president who thinks NPR is the National Poon Reserve. Oh wait…
I had supposed this was part of the vast corpus of administrative law that just gets conjured into being by federal agencies but I generally have more respect and faith in laws passed by Congress, especially from back in the day when they were still in the business of declaring wars and passing constitutional amendments. (extra credit: name the last three countries Congress declared war on).
My jaw almost fell open when I saw Dersh's "cases." This would absolutely be unethical, sanctionable conduct if he argued this way in a court filing.
Just adding to the chorus that Dershowtitz's flagrant dishonesty is obvious to any and all lawyers.
I had forgotten what this comment section was like.
@PiperTom
True that.
In my defense, I plead connotative language being a thing.
That's just my needlessly opaque way of saying, "You know what I meant!" btw.
Just reading the dictionary definition of "angary" (I know, I know, relying on dictionaries…) – I don't think it's necessarily synonymous with "military eminent domain" as is currently being discussed. The main point of difference is that with angary, the military for a given state is coopting either enemy, or neutral, territory – not territory belonging to the state represented by the military.
So, sure – presuming there's a declared war we're defending against (last I checked, "the war on terrorism" isn't a declared war, any more than "the war on drugs" is), and also presuming we had some proof that building a US-Mexico wall would defend against that war, we could theoretically annex some of Mexico to build the wall on, using angary as a pretext. But building the wall on our own territory would fall under US eminent-domain law, not under angary.
@Kamendae
Fair point. I have at least one reputable source which supports the idea that "expropriation" is the better term for a state's seizure of property belonging to its subjects. Yet "expropriation" is not confined to those states in belligerent status. A state may civilly expropriate in the absence of armed conflict.
The qualifier "military" must be made to do some work in the phrase at issue.
So, I would suggest that Mr Trump's legal theories and applications –no matter how interesting they may happen to be– –in the present moment– do not actually determine the set of synonyms for "Military Eminent Domain".
As best I can tell, "eminent domain" is the US law term for the concept of "expropriation".
https://www.investopedia.com/terms/e/expropriation.asp
I'm not certain there's *any* legal (US law term) synonym for "Military Eminent Domain" in the sense that Trump is trying to advance.
@Cheftengu
In regards to your Jan 5 research into the origin of 18 U.S.C. § 1001, I would argue that I found an earlier statute on December 20 of the previous thread and that this is a direct ancestor of 18 U.S.C. § 1001,
(link omitted to prevent posting delay)
Were you to follow that link, you would see that it holds in part:
Actually, identical language is present (but less well annotated) in 48 Stat. 996 (June 18, 1934). By contrast the related language in 40 Stat. 1015 (October 23, 1918) requires that the falsification happen as part of a scheme to extract money from the US.
To find out what happened, we have to consult old issues of the Congressional Record. I might be a week off on the dates, as the dates on the page headers appear to be the date of the approved transcript, not the date of the congressional activity.
Introduced in House: 78 Cong. Rec. 5876 (April 2, 1934) — Hatton Sumners of Texas's 5th District (Dallas) was the original author of the amendment which started off by criminalizing destruction of US property. It was referred to the House Judiciary Committee (Actually on April 3)
Passed by House: 78 Cong. Rec. 8136-8137 (May 5, 1934) — here the language changes, but it is still about damage to property like runway beacons.
Amended by Senate: 78 Cong. Rec. 11270-11271 (June 13, 1934) — I found it. Senators William King of Utah and Joseph Robinson of Arkansas spoke in favor of this bill and noted its unanimous approval in the House and unanimous consent by the Senate Judicial committee on the amendment to strip the element of the falsity being part of a scheme to extract payment from the U.S. This seems to have happened on June 6.
Signed June 18, 1934: 78 Cong. Rec. 12578-12579 (June 18, 1934) — FDR sent a note indicating the amended and passed act was signed
(On page 12571, lyrics for Ol' Man River, the song from the 1927 musical play, are attributed as "the ancient song of the Southern Negros", as part of pet project to canonize the Louisianan Purchase, so in general we try and keep the House away from the sharp tools.)
Thanks to the GPO who digitized these docs with full images and searchable text.
Oh Dershowitz. Going out of his way to make sure that no flavor of libertarian will ever be accused of having a good grasp of reality.
Will this site analyze the lies of the DOJ & FBI regarding the 2016 election?
@R. Penner:
Those are some interesting finds! I was concentrating on the USC itself, but the code is so sprawling and has changed so much over the years that it's hard to find the antecedents it draws from.
I don't think it's a coincidence that a lot of this arose from the needs of expanding federal agencies in the early 20th century, but since laws tend to evolve out of what already exists, I wouldn't be surprised if there was some enumerated crime of lying to US Marshals that comes from even earlier.
@Gbear
It was revealed today that Trump's campaign manager (Paul Manafort) met with a Russian intelligence asset (Konstantin Kilimnik) in order to give him the Trump campaign's polling data during the 2016 election.
So if what you're trying to say is NO COLLUSION, you chose a bad day to do it.
Although the discussion over the legal meaning of "materiality" in the context of the prosecution of Michael Flynn is an important one and well-described by Ken W, there is a bigger and more important issue. Even assuming that Flynn committed perjury, why was he prosecuted at all? As a military person, Flynn had a sterling record, including diving 40 ft. off of a cliff to save the lives of two drowning people while in the the military. Many, many crimes are not prosecuted. (For instance, it is a felony to assist an illegal alien to gain entry into the US)
In Flynn's case, he should have been told that they knew what he was doing and that he had to stop. If he was given one warning and refused to stop, he could have been prosecuted then. This matter of lying did not merit a prosecution, and almost certainly wouldn't have been prosecuted, if it had not been seen as a way to harm Trump.
Maybe Jon (fD) was a troll based on previous comments and his question had an obvious answer, but I don't know what it is don't get what's trollish about the question itself?
I've also heard that lawyers shouldn't ask questions to witnesses that they don't already know the answer to (as a practical 'if you want to win' thing not a legal requirement), but perjury is still a crime even in those cases right? Am I wrong about lawyers normally doing that?
not sure how perjury being a thing works with 'the purpose is to find the truth about crime X, not create new crimes'.
Asking in terms of what should be rather than only what is since it seems it is illegal but since you're saying there's a good argument that it shouldn't be.
(Do people argue that perjury shouldn't be a thing? It does seem with things like plea deals saying you plead guilty because you want the deal could technically be perjury if you're actually innocent which seems super fucked up to me even if it would never get prosecuted in practice)
@ JD Ohio.
Re: Flynn "being prosecuted for perjury":
Flynn was not prosecuted for perjury. Flynn agreed to plead guilty to perjury in order to avoid being prosecuted for several far more serious crimes. This deal was offered as an inducement for him to talk freely about what he knew.
Also, with respect to the perjury in question: Flynn was given several opportunities to correct his false statements, including at least one opportunity "reminding" him of the exact words he used. If those opportunities don't trigger your "one warning", then I would wager that nothing would.
First off, Flynn was not charged with perjury. Perjury is lying under oath, usually in the form of in-court testimony (and some documents can also be sworn-to under penalties of perjury).
Flynn was charged with, and pleaded guilty to, lying to federal investigators. Both this and perjury generally have a "materiality" element, but they are otherwise different beasts.
Secondly: @JD Ohio
You have a very naive view of prosecutorial discretion and the criminal justice system generally. I don't mean that as an insult; it's just quite obvious. Remember that Flynn was charged by information with a single count he immediately pleaded to. This was because his attorneys and the feds were talking even before the formal charges and had already worked it out. If Flynn hadn't, he may well have been charged with other things — or maybe not. My point is that you can't take anything from the fact that he was only charged with one instance of lying, when it was obvious a deal was worked out beforehand.
Also it's always been obvious that the prosecution was intended to coerce Flynn to cooperate. If you think that's the worst abuse of prosecutorial discretion, then I really hope you never have any further experience with the criminal justice system.
@rash92
I've read your post a couple times and I'm honestly not sure what you're looking for. Perjury in the context of court testimony is lying about a material fact while under oath. Yes, even if the questioner already knows the answer. The frequent shouting last year about "perjury traps!" involves a (largely hypothetical) obscure exception to that. I'm not aware of any serious argument that perjury should not be a thing.
The phrase "don't ask a question you don't already know the answer to" is a common law school axiom. It's more applicable to civil litigation where there's years of pretrial work and all of the witnesses get deposed beforehand. It's frequently unavoidable in the context of criminal trials, especially at the state level.
Wesley: " You have a very naive view of prosecutorial discretion and the criminal justice system generally. I don't mean that as an insult; it's just quite obvious. Remember that Flynn was charged by information with a single count he immediately pleaded to. This was because his attorneys and the feds were talking even before the formal charges and had already worked it out. If Flynn hadn't, he may well have been charged with other things — or maybe not."
You are the one with a very naive view of prosecutorial discretion — you are assuming that Sally Yates and others were acting ethically and without political motivations in claiming Logan Act violations which started the whole problem for Flynn. (a 218 year-old act under which no one has ever been prosecuted. ) For a general, summary of the many political actions associated with claimed Logan Act violations, see https://www.washingtonexaminer.com/byron-york-in-trump-russia-probe-was-it-all-about-the-logan-act I would remind you that Yates was President Trump's Attorney and she unethically publicly opposed his executive order giving heightened security to Muslim entrants to the U.S. If she had a problem with the order, she should have simply quit and said she couldn't act as Trump's attorney. Instead she said she thought it was unlawful (which was wrong according to the Supreme Court ruling) and specifically and unethically undercut her client.
Mueller is a Beria prosecutor looking for crimes to attach to Trump and Trump supporters and the fact that he tries to ensnare people in matters that would otherwise be ignored or worked out doesn't give any legitimacy to the lying to the FBI charge and the Logan Act charge. There are many, many felonies that go unprosecuted (for instance, 90 % of restaurant owners could probably be prosecuted for tax evasion for under-reporting their cash income), and the fact that Mueller is searching for crimes to attach to Trump supporters and ultimately Trump doesn't mean that what Mueller is doing is ethical or legitimate. Sidney Powell in her book, "Licensed to Lie" deals with many prosecutorial abuses of the type that Mueller is engaging in.
Dershowitz was obviously "full of shit," but he doesn't quite seem to be lying about the law. He's just choosing a point that sounds like a stupid lie to lawyers, because they presume he's attempting to be substantive.
In the case he cited, apparently only leading and banal questions were asked. No serious investigation was otherwise happening. So if they only ask leading questions, and aren't trying to investigate anything else, then it might be improper.
And that much seems to be true. If they only charge you with lying, then maybe you can try to cite what he says. It might even work in States other than New York. But if they charge you lying and some other crime too, then clearly not.
So the lie is where he claims that this has anything to do with any of the cases in the news involving current events and the discussions about lying and legal risk that are happening in relation to those events.
Ken gets angry when non-lawyers parse a lawyers words, but we're not talking about a legal document; we're talking about public blatherings. Surely the common man is well-versed in blatherings and bloviations, and can find some insights that are due to matters of communication rather than subject matter.
I still think, when I go to SCOTUSblog and see a ruling, and I click on the little link and read all the big words all the way to the end where I find the dissent by Justice Gorsuch that says, because he read the text of the Constitution his very own self, the law means whatever he says the Constitution obviously plainly meant, it is reasonable if I believe him. It is reasonable if I believe it is now part of the mainstream legal consensus that any Constitutional matter is forever an open matter, to be reconsidered in every case. They're not in the majority. But how can that not be in the mainstream now, with a Justice of the Supreme Court of the United States supporting the view?
I remember last year there was a big important case involving the Third Party Doctrine,(Carpenter vs US) and the media noticed that Chief Justice Roberts joined the "liberals" in a 5-4 decision, and they quoted Alito talking about how there is no Constitution privacy rights, but nobody even reported on the fact that Gorsuch offered to throw out the Third Party Doctrine and the Right to Privacy, and instead say that individuals have a property interest in the records. Maybe Roberts joined the majority decision to keep the liberals from joining Gorsuch on that case? LMAO! But look, how many different precedents does Gorsuch offer to toss aside in a single case, any time he can look at the Constitution and accuse it of containing Plain Text?
Is fear of uncertainty not warranted? I'm just a regular guy, not even an engineer, just a self-taught whatever-I-am. But if I measure the value of words by the letters next to a name, surely that asshole from Harvard is sitting pretty!
I don't think the basis of this concern actually has anything to do with disrespect for the knowledge and experience of lawyers, Ken. It just means that the world is less certain today than it was in some golden age that most of that experience happened in.
Christ. You just mention Dersh and the comments section fills with the skittering of tiny chitinous tarsi.
It's amazing how flexible conservatives become about the law when it's not poor brown people being prosecuted.
Correction to earlier post on Logan Act. Two people were prosecuted under the Act, the last in 1852. No one has ever been convicted.
@JD Ohio
Ok, I was trying to be nice earlier, but this is almost funny. I got a good chuckle at the accusation that I "assumed" ethical behavior on behalf of a random prosecutor I don't know.
I did not say you were being naive by assuming "unethical" behavior (based on however you're defining ethical conduct). I'm saying you're naive by assuming that prosecutors should only have good and proper motivations, and assuming that "bad" (i.e., political) motivations on behalf of prosecutors and law enforcement are not the status quo. As Ken likes to say, that's a feature of a broken and abused criminal justice system, not a bug. The fact that THIS is what is outrageous to you, and that you're acting like it's some horrible and unique atrocity, is what is adorably naive to criminal defense lawyers.
I have seen a client charged with attempted murder for accidentally running over a cop's foot with his car while trying to flee — bullshit charges probably based on the fact that the cop (white) screwed up and shot and nearly killed my client (black) and so then the police and prosecutors desperately tried to cast my client as some murderous villain to cover their asses — and were happy to risk my client spending the rest of his life in prison to do it. I have seen hundreds of clients swallowed up by an uncaring system, and all sorts of motivations by police, prosecutors, and judges that trample over the lives of others. Do not fucking talk to me about political motivations to prosecute, you arrogant, willfully-deluded little troll.
You're entering dangerously close to Jon (fD) territory by claiming your aggressive internet research makes your opinion at all educated on the subject.
Total": "It's amazing how flexible conservatives become about the law when it's not poor brown people being prosecuted."
Right. Michael Cohen was really let off lightly for lying on a loan. Such a serious offense and Mueller is treating him with kid gloves when so many other people of color are prosecuted much more vigorously and severely. Also, Manafort is getting such kid-glove treatment for his horrendous crimes of bank fraud, tax fraud (so few people under report their taxes) and failing to report a foreign bank account.
Also, think of all of the brown people vigorously and unfairly prosecuted by Trump and the Bushes for the felony of assisting an alien to illegally enter the US. Horrible record of favoring whites over browns.
Additionally, Dorian Johnson and other Black people were horribly mistreated and over-prosecuted for the lies and perjury they committed in the Michael Brown case.
You are a typical Lefty — empty between the ears and always finding some scab of identity politics to avoid the actual issues presented.
JD
Sally Yates was Trump's Attorney General for a few days, NOT his attorney.
Just calling a racist a racist. I like my terms to be precise.
And you've demonstrated it impressively with your comments, where all the white people have names and all the non-white people (except one) don't. There's Michael and Michael and Paul on one side and on the other there's "brown people" and "Black people."
Nice.
(And that's without even mentioning that you
were too stupid to understandmissed my point completely)Wesley: "I'm saying you're naive by assuming that prosecutors should only have good and proper motivations, and assuming that "bad" (i.e., political) motivations on behalf of prosecutors and law enforcement are not the status quo. As Ken likes to say, that's a feature of a broken and abused criminal justice system, not a bug. The fact that THIS is what is outrageous to you, and that you're acting like it's some horrible and unique atrocity, is what is adorably naive to criminal defense lawyers. "
I am a lawyer who has had 150 civil (workers' compensation) jury trials. Many in the general public think that all crimes are prosecuted. You and I both know that many, many felonies go un-prosecuted. If there wasn't a political element of getting Trump, it is highly unlikely that Flynn would have been prosecuted. I think that the public needs to know this. I was in no way assuming that prosecutors only have good motivations. I was arguing that is this case they don't (which is not that unusual in high profile prosecutions) and that the bigger issue is why was Flynn (who had a very distinguished military record) picked on, which has many political implications.
I think that the public needs to know that the FBI has a BS system (often not recording witness or accused statements — 302s), which is a totally BS procedure that is an invitation to the subornation of perjury. The fact that a low-life like Stzok was one of the people questioning Flynn only adds to the joke of the whole political prosecution.
I would add for perspective, that a long time ago the FBI tried to frame my father for selling stolen tickets to a PGA golf tournament, when he had zero involvement in the scheme.
Lagaya: "Sally Yates was Trump's Attorney General for a few days, NOT his attorney."
I specifically said President Trump to reference the office of the President and not that she was personally representing Trump. Even if she was AG for 2 hours her behavior was unethical.
28 U.S. Code § 503 – establishing the office of the AG gives the AG no independent powers vis a vis the President.
Sec. 511 is relevant and 28 U.S. Code § 511 states:
"The Attorney General shall give his advice and opinion on questions of law when required by the President."
28 U.S. Code § 530B – deals with ethical standards for government attorneys and states:
(a) An attorney for the Government shall be subject to State laws and rules, and local Federal court rules, governing attorneys in each State where such attorney engages in that attorney’s duties, to the to the same extent and in the same manner as other attorneys in that State.
Thus, Yates undermining her client, the President, violated the ethical standard that she is required to be loyal to her client, the President.
@JD in Ohio:
Your own citation to 28 USC 530B undermines your argument, where "An attorney for the Government shall be subject to State laws and rules, and local Federal court rules, governing attorneys in each State where such attorney engages in that attorney’s duties…"
Although you appear to warmly embrace the idea of a strong unitary executive, you cannot take that as a given. Nor can you negate that an attorney for the Government retains independent discretion under FRCP Rule 11(b), where "to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances" they must consider whether "the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law." The mere fact that SCOTUS eventually upheld a third version of the Muslim ban a year and a half later does not demonstrate that she was incorrect. To the contrary, the fact that the first two versions — including the initial ban that was the only version that Yates was asked to defend — were subject to nationwide injunctions demonstrates that her decision was reasonable.
"Thus, Yates undermining her client, the President, violated the ethical standard that she is required to be loyal to her client, the President."
Show me the ethics complaint, and the ruling on the ethics complaint. Until then, I deny that any violation occurred.
@Wesley
I'm confused about what was so trollish about the comment that brought up lawyers asking questions they know the answer to. Given the response it sounded like actually that was so outrageously wrong that it could only a trolling.
I get that perjury and lying to the FBI are different crimes, but they're both times when it's illegal to lie when talking to people asking questions in an official capacity. and as you said, they both have the question of whether it's material, so it seems like there should be some parallels. And if no one disagrees that it should be illegal with perjury, then what are the differences that mean there ARE good arguments for lying to the FBI in similar situations to be legal even when the asker knows the answer.
Logan Act aside, JD in Ohio sounds like a brand-new wingnut commenter here. No, you're not worth any more of my time, other than to point out you're a typically mendacious wingnut in calling Democrats "lefty." I am a non-duopoly lefty; Dems are liberals.
Since I don't practice two-siderism on most political issues —
@GBear and what lies by the FBI and DOJ are you talking about?
@Ann There was no collusion that I am currently aware of, and have seen nothing to this point by Mueller that is any sort of a "tell" that there was collusion.
Oh, if you really want fun (and I've tweeted Ken to do a post about it) …
Ted Rall self-updates his anti-SLAPP case: http://rall.com/2019/01/09/audio-of-recent-oral-arguments-in-ted-rall-v-los-angeles-times
The next article will be named "Alan Dershowitz Is Still Lying To You" too. And the next, and the next. You'll have to actually read them to tell when there's a new one up.
@Socratic Gadfly
1) Both Trump's campaign manager and his deputy campaign manager gave a Russian intelligence asset the campaign's private polling data during Trump's 2016 campaign, along with the instruction that he pass it on to an oligarch with close ties to the Kremlin. They then lied about it.
2) Russian intelligence operatives are known to have invested serious time and energy during that same campaign targeting voters on Facebook, an activity for which the campaign's polling data would be very useful. I'd be so hard put to say what else Russian intelligence might have wanted internal campaign data for, frankly. You?
3) The Trump campaign changed the party platform wrt Ukraine to make it more Russia friendly.
4) At the very end of December, Trump campaign adviser and soon to be National Security Advisor discussed sanctions with the Russian ambassador, who is also a Russian agent, then lied about it.
5) These sanctions were imposed when Russia annexed Crimea from Ukraine.
6) About a month later, Trump's now ex-campaign manager meets with the Russian intelligence asset to whom he gave campaign polling data to discuss a Ukraine peace plan — which would pave the way to those sanctions being lifted. He then lied about it.
I'm curious. What do those things look like to you that's a better fit for the facts than an election-help-for-sanctions-relief quid-pro-quo.
Please be specific. Please avoid hand-waving and vague statements, such as "Oh, there could have been a million reasons for the person running the Trump campaign to give private campaign polling data to Russian intelligence." I really want to know what you think actually happened there and wrt the other points I listed.
Thanks.
@Socratic Gadfly
I forgot
7) Although the revelations about Flynn in February 2017 made it politically impossible to just go ahead with lifting the sanctions, the ones on the oligarch to whom Manafort and Gates gave private polling numbers via a Russian intelligence go-between were recently and suddenly lifted, without explanation, at the behest of the White House.
8) Although congress voted to sanction Russia for interfering in the election in August 2017 and Trump signed the bill (which he called "seriously flawed"), he then completely ignored the mandated congressional deadline for imposing them for no known reason, and, in fact, only got around to doing so when his hand was forced by the indictment of 13 Russian nationals for "malicious cyber-activity" during the 2016 campaign.
There's more, but I'll stop there. I await your detailed alternative explanation of all this.
DRJLaw: "Nor can you negate that an attorney for the Government retains independent discretion under FRCP Rule 11(b), where "to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances" they must consider whether "the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law."
No matter how you frame it, there was substantial justification for Trump's executive order. Even if only one justice had voted to uphold the basic framework of the order, there would be substantial justification. It wasn't frivolous as the action of the Supreme Court in upholding the executive order that was presented to it made clear.
Rule 1.3–"Diligence and Zeal" in force in DC states that:
"(a) A lawyer shall represent a client zealously and diligently within the bounds of the law.
(b) A lawyer shall not intentionally:
(1) Fail to seek the lawful objectives of a client through reasonably available means permitted by law and the disciplinary rules; or
(2) Prejudice or damage a client during the course of the professional relationship."
She has clearly violated this.
Furthermore, she is such an unethical, uninformed loon that she took it upon herself to decide for the President what was the "best" interpretation of the law, not what was favored by the President and was defensible.
From her letter refusing to defend the Executive Order:
"My responsibility is to ensure that the position of the Department of Justice is not only legally defensible, but is informed by our best view of
what the law is after consideration of all the facts. In addition, I am responsible for ensuring that the positions we take in court remain consistent with this institution's solemn obligation to
always seek justice and stand for what is right. At present, I am not convinced that the defense of the Executive Order is consistent with these responsibilities nor am I convinced that the Executive Order is lawful."
Notably absent from her ridiculous assertions are any citations of statutes or cases.
DRJ: "Show me the ethics complaint, and the ruling on the ethics complaint. Until then, I deny that any violation occurred."
This is a silly argument. Many statutes and ethical rules are violated all of the time and there is no enforcement. Just because Jack the Ripper was never found, doesn't mean that there wasn't a murderer. Just because there aren't hundreds of millions of prosecutions for speeding, doesn't mean that there aren't hundreds of millions of incidences of people violating the law and speeding.
In sum, Sally Yates unethically violated one of the most basic obligations of an attorney, loyalty to her client, the office of the President, which was occupied by a human being named Trump.
It's always funny when a Trump supporter (JDOhio) points at someone else as unethical. Oh, and calls them loons. Hahaha. Dude! Look at your leader and weep!
Lagaya: Dude. Look at the heart and soul of the Democratic party, Hillary Clinton, and weep! Look at the ridiculously stupid statements of the granstanding wingnut Yates and weep! Can't blame Trump for how stupid and unethical she is.
Ann, I won't waste my time. You're obviously a drinker of #TheResistance Kool-Aid, and since I'm not a part of the slightly more liberal half of the duopoly, I'm not. I will briefly say that most of the leak of redacted info about Manafort shows that just about all the info he passed on was in the public domain.
Let's also add that Trump sold arms to Ukraine which Obama refused to do. Ditto on launching cruise missiles at Syria.
I now await your response that this is a stable genius covering up his collusion tracks.
==
Has the Trump Org laundered money from Russian oligarchs? Yes, in all likelihood. Is that collusion? No.
JD, Yates' client was NOT President Trump. Derp.
Sally Yates truly WAS a fück-up weeks before that, though, giving Dear Leader official advice to not free Leonard Peltier. For that, she can rot in hell.
[citation needed]
Thanks for conceding that vague, non-specific hand-waving is all you've got.
He also passed on internal numbers. And guess what? A combination of internal and public polling is exactly what someone would need to most effectively target voters!
Strange that he lied about it if it was all so innocent, don't you think?
Sorry to disappoint you, but my argument, unlike yours, is non-rhetorical and based in acknowledging facts, not ignoring them.
So, yes. By all means, let's add that. Trump did sell anti-tank missiles to Ukraine in May 2018. This did not significantly alter the status quo of the conflict at all. However, shortly after the sale, Ukraine dropped its investigation of Paul Manafort, which was a significant change.
In fact, I'll not only see you, but raise you. In November 2018, after Russian warships directly attacked Ukraine's, Trump cancelled his formal meeting with Putin at the G20.
It's true that they met on the sidelines instead. And it's also true that Trump refused to follow his own administration's example by condemning Russia's act of aggression, saying instead the super-tough-on-Russia words "I don't like what is happening either way."
Nevertheless, a cosmetic concession was made and the photo op meeting with Putin did not take place.
And yes! In April 2017, in response to Syria's use of chemical weapons, Trump bombed a Syrian airbase damaging about ten aircraft and killing about ten of each civilians and soldiers. This was so fearsome that the airbase was in use again within several hours, and Syria was so chastened that it continued to use chemical weapons with impunity.
More recently, Trump announced his intention to withdraw from the Syrian conflict entirely, thus leaving the field entirely to Assad, Russia, and Iran. This is currently being slow-walked by others in his administration.
This happened simultaneously with the lifting of sanctions on Deripaska; both events followed the public confirmation that Manafort had lied and not cooperated.
But you're absolutely right. The two, very demonstrably inconsequential actions you identify did occur. I've added a third. Possibly there are a few others that I'm not thinking of right now.
Nevertheless, there is zero reality-based case to be made that Trump's overall approach to Russia/Putin has been anything but extremely — even notably — deferential.
I imagine that you're the type of person who, when someone says to you, "Pick a card, any card" chooses the one that's being forced by the person performing the card trick. Or does that just apply to your consumption of news and information?
I totally agree with both prongs of this ludicrously obvious straw-man argument, btw.
CORRECTION:
I wrongly stated that Manafort asked Kilimnik to pass the polling data to Deripaska. Apparently he asked that it be passed to Serhiy Lyovochkin and Rinat Akhmetov.
The latter attended the June 9 meeting with DJT jr. that was instigated by an email referring to "Russia and its government's support for the Trump campaign," chance being a fine thing.
Not that @Socratic Gadfly has seen anything at this point that is any sort of "tell" that there was collusion, of course. To be scrupulous, I'll summarize his argument:
(1) NO COLLUSION.
(2) Trump bombed Syria once, causing little damage, then made it clear that he was a weakling by letting chemical weapons attacks proceed unchecked; Trump sold weapons to Ukraine, though he again showed he was a weakling by refusing to condemn an open, unprovoked act of Russian military aggression against Ukraine when one occurred six months later.
(3) Something, something, something.
(4) NO COLLUSION.
Gotta love that whole "Nobody's shown me any evidence, and anyone who does show me any evidence has drunk the Koolaid, so nobody's shown me any evidence" card.
@Seth: There are plenty of people who have shown the dots simply don't connect. You and Ann have fun six months from now when your Mueller Souffle finishes falling in the oven.
Oh, I fully expect Mueller's report to wind up doing precisely zilch, whatever information it actually contains, at least as long as Republicans have control of the Senate. But it is a matter of fact that Trump's inner circle of crooks and grifters did an awful lot of crooking and grifting during and after the campaign, and that if the US had any hope at all of getting out of the mess it's in, he'd have been impeached for overseeing that crooking and grifting.
It's also a matter of fact that an alarming amount of that crooking and grifting involved coordination with Russian assets, all of whom live and die by the whim of a post-Communist totalitarian against whom Trump never seems to be able to say an unkind word. Whether or not that crooking and grifting rose to the level of "collusion", whatever the hell that means, is immaterial to me.
Trump is a crook, and in a world with any justice at all, he'd have run a hotdog stand into the ground.
@Socratic Gadfly
I don't have any expectations about what Mueller's findings will be one way or the other, because there's no basis in reality for me to presume that I know. Obviously, he knows much more than is publicly known, but beyond that, who knows?
That you apparently think you do doesn't surprise me, though.
Be that as it may. The only thing I was contesting was your risible claim that there were no signs, signals, or indications of collusion.
TBH, I don't really understand why you couldn't just say, "Yes, it does seem suggestive of at least a willingness to collude that when Trump's son received an email offering the campaign incriminating info on Hillary Clinton that was explicitly defined as "part of Russia and its government's support for Mr. Trump," he responded, "If it's what you say, I love it especially later in the summer." But suggestion isn't proof."
I mean, why do you have to be in full retreat from reason and reality? How does it advantage you?
For example, if you had responded to what I said about Manafort and the polling data with something like "Yeah, well, he was in debt, maybe he was acting in a private capacity to work it off, and not on behalf of the campaign," I would have had to agree that that's at least minimally plausible.
But no, it's gotta be fantasy-land all the way, for some reason. Makes no sense.
How did this comment section turn into a slightly-more educated snippet of an average Fox News Politics news-piece comment section?
Collusion is such a beautiful word, a word everyone uses but one subject to so many interpretations. Wonderfully slippery, imbued with delightfully fluid semantics in discussions about the 2016 election.
I think many would accept "collusion" as having taken place ONLY IF there was a verifiable recording, universally acknowledged to be an unaltered recording, of Donald Trump saying (in English to avoid quibbles over translation) "Vladimir Putin, please help my election campaign, and thank you so much for all the help you've already given me" (or something very similar). Short of that, those same people will always assert "no collusion".
(Of course, publicly asking for Russia's help in "finding the missing Clinton emails" doesn't count because Trump was "obviously" being theatrical….)
The notion that any campaign official below Trump, and other hangers-on, had engagements that benefited and assisted the Trump campaign just doesn't seem, in many minds, to be collusion: there will always be reasons to deny their relevance.
I have mixed feeling about what the law concerning lies to investigators should be. I agree with Ken that this seems like too powerful a tool, and that investigators shouldn't be able to go "fishing" for a crime. However, I also agree with a lot of the commenters here (and on the previous post) who point out that lying to investigators will almost always have an effect on the investigation because
(a) whatever evidence you have of X, the target's admission will always increase your credence that X
(b) if the person is a good liar, it could negatively affect your credence that X
(c ) If the target admits to X, it opens up more lines of questioning about X
(d) learning that the target considers X worth lying about can be very informative
(e) probably some other reasons
So how about this: maybe lying to investigators should be a misdemeanor, rather than a felony. The points in (a)-(d) above don't seem sufficient to warrant a major prison sentence, but they are serious. This would still give the investigators some leverage, because people don't want a misdemeanor conviction, but it wouldn't be the bludgeon they seem to have now. And, BTW, I'm not just talking about lies the investigators knew were lies. I think this would be sensible for ALL lies that are part of a (known) investigation, but aren't under oath.
Now, how do we go about making this change? IANAL, so I'm assuming there's just some kind of button we push?
I can only mock so many people at one time.
@Wallflower
"Slightly-more?"
You could have been more merciful. Did it really have to be murder?
@JD Ohio
"No matter how you frame it, there was substantial justification for Trump's executive order."
Two rounds of nationwide injunctions say otherwise.
"In sum, Sally Yates unethically violated one of the most basic obligations of an attorney, loyalty to her client, the office of the President, which was occupied by a human being named Trump."
You have presented no evidence that the Office of the President is the Department of Justice's "client," nor that Sally Yates violated even DC Rule of Professional Conduct 1.3 in connection with the first version of the travel ban.
You keep treating your personal opinions as facts or consensus conclusions, and they are neither.
Show me the ethics complaint, and the ruling on the ethics complaint. Until then, I deny that any violation occurred. It's not an argument, it's a rejection of your deficiently advocated position and your utter abandonment of the presumption of legality, due process, and a few other concepts that you should have learned by now.
@JDOhio – Hillary isn't the "heart and soul of the Democratic Party." Democrats don't really look to their presidential candidates as parental figures. I've been noticing that Republicans never really get this, ever since they started talking like Bill Clinton was the Democratic version of Ronald Reagan. He wasn't. Once he was out of office most Democrats weren't actually that fond of him; Al Gore ran away from him and they certainly didn't canonize him the way Republicans did St. Reagan. You would be hard pressed to find many Democratic politicians making decisions by asking themselves what (either) Clinton would do, at this point. (In fact, Hillary was hurt quite a bit by her husband's perceived over-eagerness to compromise when he was in office, apparently on the assumption that wives inherit these things from their husbands.)
@Ann: You're using facts to argue a point. That's cheating. Didn't you realize that?
@Seth: Yes. As far as I've ever been able to tell, the argument is essentially: 1) You provide me facts. 2) The facts support your opinion. 3) That means you have an opinion. 4) That means you are a partisan. 5) That means that your facts aren't facts, they're just partisan talking points. 6) That means I still haven't seen any facts.
Repeat until everybody gives up saying true things, then claim victory.
@JD Ohio
The Department of Justice represents the United States. Hence the case appellation "United States v. [Party not represented by the DOJ]".
The White House Counsel advises the President on matters concerning the Office of the President and his administration.
In short, AAG Sally Yates had an obligation to enforce the laws of the United States on behalf of its citizens. She thus declined to defend an order she didn't think was lawful. She was later vindicated by two federal courts.
So you're going to have to find new grounds for your allegation that she acted unethically. Some people think she should have resigned instead, if that's helpful to you.
DRJLaw:DJR: "You have presented no evidence that the Office of the President is the Department of Justice's "client," nor that Sally Yates violated even DC Rule of Professional Conduct 1.3 in connection with the first version of the travel ban."
I guess the statute describing the AG's duties doesn't matter.
28 U.S. Code § 511 states:
"The Attorney General shall give his advice and opinion on questions of law when required by the President." Seeing how the word "Attorney" is in the job description and the Attorney is supposed to advise the President, most people could see that the President is a client of the AG. I guess not you.
Your silly reference to "show me the ethics complaint", brought up a pet peeve of mine. John Williams, a member of the DC Bar is handling the prominent defamation case by Michael Mann (which I have been following for at least 4 years) against Mark Steyn and others.
His website states under "significant trials: "Seabury Management Inc. v. Professional Golfers Association, C.V. 92-530 (D. Md.)
Lead trial counsel for plaintiff in antitrust and contract action against Professional Golfers Association of America. Plaintiffs’ verdict of $2.6 million, trebled, plus $4.8 million in punitive damages." He neglects to state that the trial court and the appeals court both set aside the jury's punitive damages award of $4.8 million. See 52 F.3d 322.
Rule 7.1–Communications Concerning a Lawyer's Services of DC's Professional Rules states:
" (a) A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services. A communication is false or misleading if it:
(1) Contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading; "
The commentary states: "It is especially important that statements about a lawyer or the lawyer’s services be accurate, since many members of the public lack detailed knowledge of legal matters. Certain advertisements such as those that describe the amount of a damage award, the lawyer’s record in obtaining favorable verdicts, or those containing client endorsements, unless suitably qualified, have a capacity to mislead by creating an unjustified expectation that similar results can be obtained for others."
Although Williams' statement that he won a verdict including a punitive damages award is extremely misleading and violates DC's Rules and the express guidance of the commentary, he has had this statement on his website for at least 4 years and it is still there. No ethics complaint.
Under your reasoning, he is allowed to mislead potential clients and hasn't committed a violation by failing to inform readers of the website that his client never collected the punitive damages award.
You are simply delusional and impervious to reason. You did give me an opportunity to, in a minor way, publicize the ethical violation of Williams, which has some minor utility.
Ann: "The Department of Justice represents the United States. Hence the case appellation "United States v. [Party not represented by the DOJ]".
The White House Counsel advises the President on matters concerning the Office of the President and his administration.
In short, AAG Sally Yates had an obligation to enforce the laws of the United States on behalf of its citizens. She thus declined to defend an order she didn't think was lawful. She was later vindicated by two federal courts."
You are going to have to cite some authority for your position. There is no statute that I am aware of that provides that the AG has authority independent of the President. (Other than an obligation as an attorney to avoid making frivolous arguments — which is not at issue here) I have cited the relevant statutes above. Please cite contrary authority. A caption in a court case means nothing. (If you think it does, please cite the authority)
A law professor and former clerk to liberal Justice Blackmun wrote an article explaining that the AG and Dept of Justice acts only under the authority and direction of the President. See https://verdict.justia.com/2016/07/15/three-important-constitutional-lessons-take-fbi-director-comeys-statements-hillary-clintons-email-management
I would have had no problem with Yates resigning, but under the ethical rules she can't undercut her client, the office of the President, which clearly had a valid, non-frivolous case to present. As I pointed out previously, Yates' position was so weak that she didn't cite one authority for the assertions she made — all hot air. She has zero authority to decide what is "best", which is exactly what she explicitly did.
Ann: "The Department of Justice represents the United States. Hence the case appellation "United States v. [Party not represented by the DOJ]".
The White House Counsel advises the President on matters concerning the Office of the President and his administration.
In short, AAG Sally Yates had an obligation to enforce the laws of the United States on behalf of its citizens. She thus declined to defend an order she didn't think was lawful. She was later vindicated by two federal courts."
You cite no authority for your position. Above I cited 2 statutes that make clear that the AG has no independent authority. 28 USC 503 & 511. Please cite your contrary authority. I would also add that the word "Attorney" is simply a fancy name for "agent." If you are any attorney acting as one, you have a client. (In this case, Donald Trump as President of the US)
I would note your comment concerning the case caption is wrong. The case in the Supreme Court was styled as Trump, President of the US v. Hawaii. In the Federal Court of Appeals it was styled as: State of HAWAII; Ismail Elshikh; John Does, 1 & 2; Muslim Association Of Hawaii, Inc., Plaintiffs-Appellees, v. Donald J. TRUMP, in his official capacity as President of the United States.
Also, it is important to recognize that Yates' cited zero authorities for her position in the letter she wrote — it is all hot air. It is particularly ridiculous for her to claim that she has the authority to determine what is "best" or "wise" or "just." Zero statutory authority for that and particularly zero authority for that when acting as an attorney.
@JD Ohio
Yes, not me. For that matter, not Judge and former Solicitor General Charles Fahy:
The Government Client and Confidentiality: Opinion 73-1, 32 FED. B.J. 71, 72 (1973).
Nor Solicitor General Erwin Griswold:
46 Fordham L. Rev. 1049, 1060 (1978).
But since you've cited one statutory section that is directly contradicted by another that you've also cited and now chosen to ignore, I'll disregard those authorities and others on your say-so. The government just hasn't gotten around to filing an ethics complaint, because it only prosecutes those that it doesn't like (and Trump must certainly love Sally Yates).
Gish gallop ignored.
DRJLaw: Here is what Erwin Griswold said in a 1969 article (couldn't locate the Fordham article, but appears to be very similar)
Missouri Law Review
Volume 34
Issue 4 Fall 1969
"While Solicitors General have, I think, sought with remmarkable consistency to take statesman-like positions on legal matters
within their sphere, it seems unwise to lose sight of the reality that a
Solicitor General is not an ombudsman with a roving commission to do justice as he sees it. He is a lawyer, though with special responsibilities, who must render conscientious representation to his client's interests.
******
V. CONCLUSION
This discussion has, of necessity, given only a superficial view of the
practice of the Solicitor General's office. There is room for statesmanship
and we try to exercise that role in appropriate cases. But essentially, we are advocates, doing our best to present the legal arguments for our great client before the judicial tribunal which our Constitution has put first
in the land. We do not decide the cases, but we do have to exercise a lawyer's choice and judgment as to the arguments we make. That, as I see it, is lawyering. If it occasionally involves a little statesmanship, that, too, is sometimes the proper function of a lawyer."
I have yet to see any authority for the proposition advanced by Yates that she has some sort of roving authority to decide what is "best" "fair" or "just." There is a minor role for "statesmanship", which can only be exercised through the prism of being a loyal advocate who must be conscientious in representing her client's interests.
Please cite me authority where the AG is permitted to undermine and work against a reasonable legal position sought to be enforced by the President.
DJRLaw: Re: Charles Fahy. Not a great choice for your position. He argued and won the Japanese Internment cases. Couldn't find the article you cited.
DJRLaw: "Gish gallop ignored."
No, ethics violation ignored by you, the DC Courts and DC practitioners. Your argument that for a violation to have occurred, it must be prosecuted is remarkably dense.
@JD Ohio:
I don't see anything there that identifies the Office of the President as the actual or sole client.
I will when you identify a reasonable legal position that Yates was asked to defend. Because revision three of the Muslim ban was approved by the Supreme Court a year and a half after she was no longer AG, while revisions one and two were abandoned by the administration after being enjoined and having those injunctions upheld by Courts of Appeal.
Here's the timeline to refresh your flagging memory.
@JD Ohio
You're not the arbiter of ethics violations. You want to engage? Fine.
Which you admit is literally true.
Which does not alter what he claims. He does not claim that he obtained that amount as a final award. You chose to read it as such. Reasonable minds can differ as to whether the distinction is material.
If you're so incensed about it, file an ethics complaint. The fact that you put this much time and effort into it and have not makes me doubt your sincerity as well as its materiality.
We now return you to our program where gems like "[e]ven if only one justice had voted to uphold the basic framework of the order, there would be substantial justification" make me throw up a little in the back of my mouth.
DJRLaw: "I don't see anything there that identifies the Office of the President as the actual or sole client." Seriously, you don't see anything indicating that the Office of the President is a client. Hint. Look at the case style. Second hint. Who issued the Proclamation that was referred to 147 times in TRUMP, PRESIDENT OF THE UNITED STATES, ET AL. V. HAWAII ET. AL. Doesn't matter whether other government officials were peripherally involved — the main party was Trump who issued the proclamation/executive order and who obviously deserved legal representation.
DJR asked that I identify "a reasonable legal position that Yates was asked to defend." First, I would note that the burden of explaining why Trump's attorney could work against his interests was on Yates and she failed to identify any specific legal position taken by him or any specific provision of the first proclamation that was frivolous or unsupportable. Instead she wrote a ludicrous letter, without citing any authority, that she was entitled to determine what was "best" or "fair" or "just." It should be obvious to anyone that an attorney representing a client has a duty of loyalty to the client and must clearly explain any actions that are detrimental to the client. To justify her deep-sixing of her client, Yates did not identify any specific issues and simply exhaled hot air.
Second, the Supreme Court (beginning at p. 10 of opinion) in upholding the order stated that:
"The text of § 1182(f) states:
"Whenever the President finds that the entry of any
aliens or of any class of aliens into the United States
would be detrimental to the interests of the United
States, he may by proclamation, and for such period
as he shall deem necessary, suspend the entry of all
aliens or any class of aliens as immigrants or nonim-
migrants, or impose on the entry of aliens any re-
strictions he may deem to be appropriate."
By its terms, § 1182(f) exudes deference to the President
in every clause. It entrusts to the President the decisions
whether and when to suspend entry ("[w]henever [he]
finds t h a t the entry" of aliens "would be detrimental" to the national interest.
******
The sole prerequisite set forth in § 1182(f) is
t h a t the President "find[]" that the entry of the covered
aliens "would be detrimental to the interests of the United
States."
To answer your question, about "a reasonable legal position that Yates was asked to defend." She was asked to defend the proposition that The sole prerequisite set forth in § 1182(f) is
t h a t the President "find[]" that the entry of the covered
aliens "would be detrimental to the interests of the United
States."
I would add that the Supreme Court referenced other actions taken by previous Presidents, such as Clinton who issued a one-sentence proclamation (See p. 12) excluding certain Sudanese government officials and a 5-sentence proclamation preventing illegal sea migration issued by Reagan.
@Orv is right, as JDOhio proves himself clueless yet again. I guess, per the new Darth Cheney movie, JD is projecting his Rethuglican love of unrestricted executive power onto others. Not that JD is listening. Maybe he can't; maybe the MAGA hat/condom is pulled below his ears.
@Seth: But, legally, it does matter. As it does constitutionally. As I see it, fraud or similar financial crimes started before he ran for president aren't impeachable. They are triable, but not impeachable.
@Ken: Related question. Per DOJ claim that a sitting prez can't be indicted, why not? On the civil side, after all, SCOTUS let discovery etc move forward in the Paula Jones suit. And, that decision was made after DOJ took its stance on indictment.
Have you considered that he's only bullshitting?: There's a difference.
A liar kinda-cares about the truth; a bullshitter only cares if his narrative supports his argument.
It's an important distinction.
Ken has Trump Derangement Syndrome. It's a shame, he was a good mind, hope he gets it back when this is over.
The difference between the "bullshitter" and the "liar" is the same as between a "lovable drunk" and an "alcoholic": the former are euphemisms for the truth.
Oh, bullshit.
(Well, really, was there any other response?)
For Ann et al
Sorry (actually, I"m not sorry) but, per Greenwald, even ABC News says that #MuellerTime will NOT deliver any #collusion glazed donuts. https://twitter.com/ggreenwald/status/1084896076954513414
@SocraticGadfly
Sorry (actually not sorry):
Love the MAGA hatters with hats too tight talking about others being deranged.
Oh, since everybody here loves Ted Rall: https://socraticgadfly.blogspot.com/2019/01/ted-rall-hits-one-of-his-more-wrong.html
Looks like Donald "I've been very, very tough on Russia" Trump just got his wish to revoke sanctions against Deripaska, because there's nothing tougher than failing to enforce sanctions against oligarchs of hostile foreign powers.
Ohio guy: "No matter how you frame it, there was substantial justification for Trump's executive order… It wasn't frivolous as the action of the Supreme Court in upholding the executive order that was presented to it made clear."
You have written this repeatedly here, but the executive order SCOTUS ruled on (third version) was not the order Sally Yates had to deal with (first version). The first version was a blatant violation of federal law, in that it restricted the movement of permanent legal residents. That part of the first executive order was quickly dropped for the second and third versions.
Seth, you mean the Trump who:
1. Sold arms to the anti-Russian fascists running the Ukrainian govt when Obama wouldn't?
Or
2. Lobbed cruise missiles at Russian ally Syria when Obama wouldn't?
Or
3. Is planning to withdraw from a nuclear treaty with Russia when Obama wouldn't?
More recently, he refused to condemn an open act of military aggression by Russia against the Ukraine, thereby making clear that he didn't really oppose Russia or support Ukraine.
More recently he has announced his intention to withdraw from Syria entirely.
Are you kidding? Russia wants to be free to act like the nuclear power it is in Europe. That is not disfavorable to them.
He also refused to impose sanctions on Russia straight through the congressionally mandated deadline, did so only under public duress, and has now started lifting them for no damn reason at all.
He has publicly stated that he takes Putin's word that Russia did not intervene in the election over that of his own intelligence agencies that it did.
His own attorney is now apparently anticipating that SOME COLLUSION by the campaign will be proven.
But keep focusing on those isolated and acontextual little scraps of information. That's the ticket.
I'm beginning to wonder how many other servers filled with compromising information left by doddering old fools with reputations to protect were hacked by the Russians in 2016.
MGould guy: "You have written this repeatedly here, but the executive order SCOTUS ruled on (third version) was not the order Sally Yates had to deal with (first version). The first version was a blatant violation of federal law, in that it restricted the movement of permanent legal residents. That part of the first executive order was quickly dropped for the second and third versions."
The Trump administration demonstrated that the restriction on permanent residents was a mistake and an unimportant part of the litigation by dropping it. If Yates had been acting as an ethical lawyer instead of a grandstanding politician, she would have gone to the Trump administration and suggested that it be dropped. [which we now know it would have done] Instead, she acted as some sort of super arbiter of what the "best" law was (a function for a court reviewing the matter). Also, in her ridiculously stupid statement, she didn't identify any portions of the exec order that were illegal — she just had hot air unsupported by authority that it was for her to determine what was "best," "fair," or "just."
The whole premise of the American legal system is built on its adversary nature. Both sides are allowed to present their case. That means that one side will have a "weaker" [not "best"] case, but even the party with the weaker case (in this case actually those opposing the President), is permitted to argue its case, unless its arguments are frivolous. (Yates notably didn't argue that the President's position in the first order was frivolous.) In fact, there were multiple parties arguing against the President's order, which emphasizes how unethical Yates was by, in essence, trying to deny the President his day in court.
@JD Ohio
After losing in multiple district and appellate courts. So a "mistake" in the sense that the administration vigorously defended the first version of the executive order until beaten bloody and blue.
Oddly, issuing the letter and "going to the Trump administration and suggesting that [the provision] be dropped" can be one and the same.
I fail to see the difference between the Yates letter and your suggestion unless by "suggesting" you mean that after silently communication the order's unlawfulness, Yates should have blindly done whatever her alleged "client" instructed her to do. Can't wait for the executive order to shoot people on 5th Avenue comes through.
Which should appear in the letter why? You act as if there weren't Department of Justice memoranda that identified portions of the executive order that were unsupportable by the law and legal authority. You act as if the White House was kept in the dark concerning the problems with the first version of the executive order.
I could complain that the announcements of the executive orders never identified how is was supported by the law and legal authority. I didn't, and don't, because announcements don't customarily include that level of detail.
Parenthetically says you. "At present, I am not convinced that the defense of
the Executive Order is consistent with these responsibilities nor am I convinced that the Executive Order is lawful." "She did not use the magical words that I demand to see!" is not convincing.
As for the "weaker case" shot, you persist in vain in ignoring that the first two versions of the executive order were enjoined in the district courts and those injunctions upheld on appeal. In this case, which was the first version, the weaker case was conclusively determined to be the administration's.
Anyone arguing that position for this administration is a damn dirty hypocrite. Unless of course, you believe that the Attorney General is merely a functionary of the then-current President rather than an officer of the Government serving as an attorney for multiple clients, including the legislative branch and the general public.
Which I'm rather certain that you do. The Mueller investigation must really twist your knickers.
…yeah, our legal system is adversarial in nature because both sides often have a case that needs to be made before an unbiased arbiter. But we don't NEED to have two sides of every issue be argued. And no lawyer is ever obligated to argue something that they KNOW is untrue – they tend to get in trouble for doing that, as THAT is unethical.
Yates was under EVERY obligation to do something similar to what she did, and under no obligation at all to defend Trump's illegal orders. Even if Trump WERE her client (which he is not), she would be under no obligation at all to act like blatantly illegal things were somehow legal.
Most defense attorneys won't stand in front of a judge and argue that murder is, in fact, legal. There's a good reason for that – it's not legal.
I think it is the parties' NEEDS which ought to determine how many sides of an issue are argued, not ours.
[…] the legal world is not like the real world and the type of reasoning appropriate to it is distinct from that which human beings ordinarily employ. In the real world, people usually attempt to solve problems by forming hypotheses and then testing them against the facts as they know them. When the facts confirm the hypotheses, they are accepted as true, although subject to reevaluation as new evidence is discovered. This is a successful method of reasoning about scientific and other empirical matters because the physical world has a definite, unique structure. It works because the laws of nature are consistent. In the real world, it is entirely appropriate to assume that once you have confirmed your hypothesis, all other hypotheses inconsistent with it are incorrect.
In the legal world, however, this assumption does not hold. This is because unlike the laws of nature, political laws are not consistent. The law human beings create to regulate their conduct is made up of incompatible, contradictory rules and principles; and, as anyone who has studied a little logic can demonstrate, any conclusion can be validly derived from a set of contradictory premises. This means that a logically sound argument can be found for any legal conclusion.
When human beings engage in legal reasoning, they usually proceed in the same manner as they do when engaged in empirical reasoning. They begin with a hypothesis as to how a case should be decided and test it by searching for a sound supporting argument. After all, no one can "reason" directly to an unimagined conclusion. Without some end in view, there is no way of knowing what premises to employ or what direction the argument should take. When a sound argument is found, then, as in the case of empirical reasoning, one naturally concludes that one's legal hypothesis has been shown to be correct, and further, that all competing hypotheses are therefore incorrect.
This is the fallacy of legal reasoning. Because the legal world is comprised of contradictory rules, there will be sound legal arguments available not only for the hypothesis one is investigating, but for other, competing hypotheses as well. The assumption that there is a unique, correct resolution, which serves so well in empirical investigations, leads one astray when dealing with legal matters. […]
— John Hasnas The Myth of the Rule of Law
(faculty[dot]msb[dot]edu/hasnasj/GTWebSite/MythWeb.htm)
DRJlaw: "After losing in multiple district and appellate courts. So a "mistake" in the sense that the administration vigorously defended the first version of the executive order until beaten bloody and blue."
Typical uninformed comment by you. From the 9th circuit's decision deciding not to overturn the district court's TRO: "The Government has argued that, even if lawful permanent residents have due process rights, the States' challenge to section 3(c) based on its application to lawful permanent residents is moot because several days after the Executive Order was issued, White House counsel Donald F. McGahn II issued "[a]uthoritative [g]uidance" stating that sections 3(c) and 3(e) of the Executive Order do not apply to lawful permanent residents." WASHINGTON v. TRUMP
No. 17-35105. 847 F.3d 1151 (2017)
Upon realizing its mistake the Trump administration made clear that it wasn't enforcing this. The first exec order was issued on Jan. 27 — Yates' stupid letter saying that it was up to her to decide what was best was published on Jan. 30.
Additionally, the first exec order that Yates was undermining was never ruled on authoritatively by the appellate court. There was no final judgment — only non-final rulings on a TRO. Further the basis for the non-final decision was procedural due process, which was considered so inconsequential in Trump v. Hawaii that it wasn't even mentioned. (Once the lawful permanent resident issue was removed, which the appellate court conveniently considered as before it, when it was clear that it wasn't going to be enforced and wasn't being enforced) Moreover, the 9th Circuit's decision was so poor and superficial that it didn't even mention section 212(f) of the Immigration and Nationality Act, which was determinative in the case before the Supreme Court. (incidentally by only 3 judges of the panel — en banc decisions would normally be issued in cases as important as this if they were pending for a longer period of time) When the various cases reached a point where it was possible that en banc consideration might occur approximately 4 judges in both the 4th Circuit and the 9th Circuit dissented from the denial of an en banc hearing.
So, no it wasn't like some particularly erudite courts were issuing stupendously insightful opinions that thoroughly destroyed the President's arguments. It was clear at all stages that there was a substantial basis for all of the President's orders (even the procedural due process argument was simply that no hearing was offered — not that the underlying basis for the orders was wrong.) The President deserved representation from an ethical lawyer. Instead, Sally Yates clearly and unethically undermined her client the President of the US.
Incidentally, she was one of the people responsible for the disgraceful unmasking of Carter Page (by signing off on a Fisa warrant based on Democratic funded political dirt gathering which was a transparent effort to illegally spy on the Trump campaign). Almost certainly the FISA court wasn't informed that the basis of the warrant was political dirt gathered by Christopher Steele who was desperate to stop Trump and Yates was in on the dirty unmasking.
Still waiting for you to: "cite me authority where the AG is permitted to undermine and work against a reasonable legal position sought to be enforced by the President" which you have evaded for 12 days.
DRJlaw: "After losing in multiple district and appellate courts. So a "mistake" in the sense that the administration vigorously defended the first version of the executive order until beaten bloody and blue."
Typical uninformed comment by you. From the 9th circuit's decision deciding not to overturn the district court's TRO: "The Government has argued that, even if lawful permanent residents have due process rights, the States' challenge to section 3(c) based on its application to lawful permanent residents is moot because several days after the Executive Order was issued, White House counsel Donald F. McGahn II issued "[a]uthoritative [g]uidance" stating that sections 3(c) and 3(e) of the Executive Order do not apply to lawful permanent residents." WASHINGTON v. TRUMP No. 17-35105. 847 F.3d 1151 (2017)
Upon realizing its mistake the Trump administration made clear that it wasn't enforcing this. The first exec order was issued on Jan. 27 — Yates' stupid letter saying that it was up to her to decide what was best was published on Jan. 30. xxxxx
Additionally, the first exec order that Yates was undermining was never ruled on authoritatively by the appellate court. There was no final judgment — only non-final rulings on a TRO. Further the basis for the non-final decision was procedural due process, which was considered so inconsequential in Trump v. Hawaii that it wasn't even mentioned. (Once the lawful permanent resident issue was removed, which the appellate court conveniently considered as before it, when it was clear that it wasn't going to be enforced and wasn't being enforced) Moreover, the 9th Circuit's decision was so poor and superficial that it didn't even mention section 212(f) of the Immigration and Nationality Act, which was determinative in the case before the Supreme Court. (incidentally by only 3 judges of the panel — en banc decisions would normally be issued in cases as important as this if they were pending for a longer period of time) When the various cases reached a point where it was possible that en banc consideration might occur approximately 4 judges in both the 4th Circuit and the 9th Circuit dissented from the denial of an en banc hearing.
So, no it wasn't like some particularly erudite courts were issuing stupendously insightful opinions that thoroughly destroyed the President's arguments. It was clear at all stages that there was a substantial basis for all of the President's orders (even the procedural due process argument was simply that no hearing was offered — not that the underlying basis for the orders was wrong.) The President deserved representation from an ethical lawyer. Instead, Sally Yates clearly and unethically undermined her client the President of the US.
Incidentally, she was one of the people responsible for the disgraceful unmasking of Carter Page (by signing off on a Fisa warrant based on Democratic funded political dirt gathering which was a transparent effort to illegally spy on the Trump campaign). Almost certainly the FISA court wasn't informed that the basis of the warrant was political dirt gathered by Christopher Steele who was desperate to stop Trump and Yates was in on the dirty unmasking.
Still waiting for you to: "cite me authority where the AG is permitted to undermine and work against a reasonable legal position sought to be enforced by the President" which you have evaded for 12 days.
DRJlaw: "After losing in multiple district and appellate courts. So a "mistake" in the sense that the administration vigorously defended the first version of the executive order until beaten bloody and blue."
Typical uninformed comment by you. From the 9th circuit's decision deciding not to overturn the district court's TRO: "The Government has argued that, even if lawful permanent residents have due process rights, the States' challenge to section 3(c) based on its application to lawful permanent residents is moot because several days after the Executive Order was issued, White House counsel Donald F. McGahn II issued "[a]uthoritative [g]uidance" stating that sections 3(c) and 3(e) of the Executive Order do not apply to lawful permanent residents." WASHINGTON v. TRUMP No. 17-35105. 847 F.3d 1151 (2017)
Upon realizing its mistake the Trump administration made clear that it wasn't enforcing this. The first exec order was issued on Jan. 27 — Yates' stupid letter saying that it was up to her to decide what was best was published on Jan. 30.
Additionally, the first exec order that Yates was undermining was never ruled on authoritatively by the appellate court. There was no final judgment — only non-final rulings on a TRO. Further the basis for the non-final decision was procedural due process, which was considered so inconsequential in Trump v. Hawaii that it wasn't even mentioned. (Once the lawful permanent resident issue was removed, which the appellate court conveniently considered as before it, when it was clear that it wasn't going to be enforced and wasn't being enforced) Moreover, the 9th Circuit's decision was so poor and superficial that it didn't even mention section 212(f) of the Immigration and Nationality Act, which was determinative in the case before the Supreme Court. (incidentally by only 3 judges of the panel — en banc decisions would normally be issued in cases as important as this if they were pending for a longer period of time) When the various cases reached a point where it was possible that en banc consideration might occur approximately 4 judges in both the 4th Circuit and the 9th Circuit dissented from the denial of an en banc hearing.
So, no it wasn't like some particularly erudite courts were issuing stupendously insightful opinions that thoroughly destroyed the President's arguments. It was clear at all stages that there was a substantial basis for all of the President's orders (even the procedural due process argument was simply that no hearing was offered — not that the underlying basis for the orders was wrong.) The President deserved representation from an ethical lawyer. Instead, Sally Yates clearly and unethically undermined her client the office of the President of the US.
Incidentally, she was one of the people responsible for the disgraceful unmasking of Carter Page (by signing off on a Fisa warrant based on Democratic funded political dirt gathering which was a transparent effort to illegally spy on the Trump campaign). Almost certainly the FISA court wasn't informed that the basis of the warrant was political dirt gathered by Christopher Steele who was desperate to stop Trump, and Yates was in on the dirty unmasking. Her lack of ethics in the temporary travel ban cases apparently also was featured in her FISA warrant "work."
Still waiting for you to: "cite me authority where the AG is permitted to undermine and work against a reasonable legal position sought to be enforced by the President" which you have evaded for 12 days.
@JD Ohio
"We promise that we won't enforce the plain language of the statute/order/policy" is not something that the U.S. courts treat as dispositive when evaluating constitutionality. Please refresh your memory concerning facial and "as applied" constitutional challenges, as you appear to have forgotten that part of your legal education."
I have not evaded it. I have denied its premise. You have not identified a "reasonable legal position" presented to Yates in the first version of the E.O., and your own posts and arguments suffice to show why the first version of the E.O. did not rest on a reasonable legal position. Your attempts argue that the preliminary injunctions were not final judgments ignores the fact that the district courts evaluated "whether the plaintiff is likely to succeed on the merits" and that your demanded final judgments were only avoided via substantially altered second and then third versions of the E.O., effectively conceding that the first version was indefensible.
Again, you keep treating your personal opinions as facts or consensus conclusions, and they are neither. I am not bound to accept a poorly-reasoned, superficial, and pseudononymous conclusion that Yates' behavior was unethical. I am not bound to accept your judgments concerning the actions of the district and appellate courts here. I am not bound to privilege 28 U.S. Code § 511 above §§ 517, 518(a), 530B, and a host of other authority acknowledging the Attorney General represents interests other than the current President's wishes, in addition to the judgments of history in that regard (I dare you to call Richardson and Ruckelshaus unethical for their conduct in the Saturday Night Massacre).
We're not buying the statist, pro-Trump bloviating that you're selling. If we were to do so, then the AG (and his or her direct subordinates) would be ethically precluded from supervising Mueller's investigation into Trump and his campaign because he or she could not possibly be the head of a civil, criminal, or other administrative investigation of a supposed client. Yates was an attorney general representing the interests of the United States, which are not one and the same with the interests of the Office of the President, and there was no ethical duty to defend an E.O. that was not reasonably judged to be "warranted by existing law or by a nonfrivolous argument" (28 USC 530B; FRCP 11(b)).
Wondering if Ken (or anyone else) has seen, heard, or participated in Mr. Dershowitz's "Crime and Consequence" course? Got an e-mail today about it. Here's the trailer.
DRJlaw "Yates was an attorney general representing the interests of the United States, which are not one and the same with the interests of the Office of the President, and there was no ethical duty to defend an E.O. that was not reasonably judged to be "warranted by existing law or by a nonfrivolous argument" (28 USC 530B; FRCP 11(b))."
Very weird and illogical argument.
1. Yates never claimed that defending the Trump EO would require her to make frivolous arguments. She stated that she had the right to support the "best" legal position (in her mind), which is a mind-numbedly stupid position for a lawyer in an adversarial system to take. There is no amorphous best position for the United States as a country to take and there is no amorphous office of the President separate from the person who occupies the Presidency. There is no reason for Yates, who went so far as to write an editorial in the NYTs, if she felt that the President's positions were frivolous, to refrain from saying so, which would have only strengthened her position. She didn't, which strongly undercuts your argument. Of course, she arrogantly decided that it was her job to decide whether "any POLICY choice embodied in an executive order is wise or just" which makes clear that her position was not motivated by a concern with legally frivolous arguments and shows that she was motivated by policy concerns which are in the realm of the President's authority.
2. I have read the Federal Court of Appeals decisions and some of the District Court decisions and nowhere have I seen any reference to the defense of the first EO as being in any way frivolous. Between the various courts reviewing the orders, and the politically charged adversaries of the President, one would think that the issue of frivolity, would come up SOMEWHERE. I see no indication that you have read any of the appellate or trial court decisions, but you are welcome to point to some place where a court ruled, or suggested that President's positions were frivolous. With the first EO being "beaten bloody and blue," this should be an easy task. Both Civ. Rule 11 and Fed. R. App. Proc. 38 give the judges the right to initiate sanctions for frivolous actions, in addition to the right of litigation parties to file motions seeking sanctions. I would point out that as a matter of logic, the number of cases ruling the same way on an issue has nothing to do with whether the opposing arguments are frivolous. For instance, after Plessy v. Ferguson, there were undoubtedly many cases upholding the principle of separate but equal, but that doesn't mean that the opposing arguments were frivolous.
Being blinded by Trumpphobia and uninformed and insular outrage, you so far have refused to answer the question of how the Trump administration was making legally frivolous arguments when "The sole prerequisite set forth in § 1182(f) is t h a t the President "find[]" that the entry of the covered aliens "would be detrimental to the interests of the United States." Once he makes that finding, the case is over under the Supreme Court's decision. Additionally, the Supreme Court at p. 13 of its opinion stated: "The justiciability reviewablility) of plaintiffs' challenge under the INA presents a difficult question." The President's argument that his actions were not reviewable was clearly legally tenable although the Supreme Court decided to assume, without deciding, that the EOs were reviewable.
The long and short of it is that you go to great illogical lengths to justify the unethical actions of Yates, which are so fundamentally obvious that any first-year law student would clearly see her dereliction. On my end, I doubt that there is much more to say, so go ahead with your Trumpphobic rants.
JD Ohio:
Yates announced on Jan 30, 2017:
So for Yates to allow her subordinates to defend the EO would be inconsistent with the solemnity of seeking justice in defense of the unlawful. That sounds like a forest of frivolous arguments falling down. But you are right that Yates would not be making frivolous arguments, but merely abandoning oversight to allow them to be made.
JD Ohio:
[Citation requested!]
The only place "best" appears in Yates' 2017 announcement is in this sentence: “My responsibility is to ensure that the position of the Department of Justice is not only legally defensible, but is informed by our best view of what the law is after consideration of all the facts.” The record before and after Jan. 30, 2017 has shown that Yates' consideration of the facts is superior to that of Trump (nonexistent when stories are unflattering or complex) or the OLC (not their job) and that her application of knowledge of the law is superior to that applied by Trump (who doesn't know what it is to know something) and the OLC (who follow a mandate to look for means, not justice or any of the goals of the law).
JD Ohio:
[Citation requested!]
Are "positions" frivolous? Positions are like emotions — they can indeed be baseless, ill-informed, mean-spirited, evil, etc. without invalidating them. Such positions and emotions aren't frivolous, but actually held. Legal arguments and filings, on the other hand, can be frivolous (essentially baseless or without merit) when motivated solely by such positions not informed by the whole of the facts and the whole of the law. And Yates' July 28, 2018 editorial is about Trump and Sessions, not Trump's first EO, so your argument about some magical words being in it is doubly frivolous. Yates is not required to dredge up an 18-month old issue while talking about the current unsavoriness of President Trump and not required to use legal terms of art that you dictate. By stating in 2017 that she was not “convinced that the [first] Executive Order [was] lawful” she was making a equivalent statement than its current form was without basis, i.e. frivolous. In that 2018 editorial, Yates wrote: “The Justice Department is not just another federal agency. It is charged with fulfilling our country’s promise of equal and impartial justice for all. As an agency with the authority to deprive citizens of their liberty, its investigations and prosecutions must be conducted free from any political interference or influence, and decisions must be made based solely on the facts and the law.” That is a strong stance that frivolous positions must not be allowed to form frivolous arguments.
JD Ohio:
Here you quote from Yates' 2017 description of the OLC, indicating that they have abandoned such consideration of justice in order to tackle narrow considerations of what CAN be done under the law (even if their inputs are contrafactual). Yates wrote:
As leader of the Department of Justice, it is duty, not arrogance, that requires Yates to consider which choices are just and which choices are wise for the future of the DOJ.
On May 9, 2017, “Sean Spicer, […] said on Tuesday that top officials, including the president, had dismissed the [January 26] warnings from Ms. Yates [about the fact of Flynn's lying about Russian contacts] because she was a top Justice Department official in the Obama administration[.]” Seems like the Trump administration had a heaping quantity of arrogance to ignore facts from the head of the DOJ just because they were too incompetent to actually install a head of the DOJ. Seems like Justice (and counterintelligence) were not Trump priorities in January 2017.
TL;DR version:
I reject your narrow view of the responsibilities of the head of the DOJ. I reject your embrace of unlimited advocacy in favor of a single client as the proper role of a lawyer, let alone the Attorney General. I reject your hunt for post-hoc-selected magic phrasing as linguistically or legally meaningful to the issue at hand.
R Penner: " [citing Yates] At present, I am not convinced that the defense of the Executive Order is consistent with these responsibilities nor am I convinced that the Executive Order is lawful. [end of Yates cite]
So for Yates to allow her subordinates to defend the EO would be inconsistent with the solemnity of seeking justice in defense of the unlawful."
You don't understand the meaning of frivolous. An argument can be made in favor of a statutory interpretation where the statutory interpretation turns out to be unlawful, but just because it is wrong, doesn't mean it is frivolous. Yates is arguing that it is for her, not the President or the Courts, to determine what is lawful where there are reasonable arguments on both sides. An argument can be weak, but not frivolous if supported by arguable law. Attorneys have the right and duty to present weak arguments (supported by some valid authority) if instructed to do so by their client. [In this case, we know that the fundamentals of Trump's arguments were not weak because he won in the Supreme Court.]
Here is what the Supreme Court has stated:
"The Courts of Appeals have, quite correctly in our view, generally adopted as formulae for evaluating frivolousness under § 1915(d) close variants of the definition of legal frivolousness which we articulated in the Sixth Amendment case of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). There, we stated that an appeal on a matter of law is frivolous where "[none] of the legal points [are] arguable on their merits." Id., at 744, 87 S.Ct., at 1400. By logical extension, a complaint, containing as it does both factual allegations and legal conclusions, is frivolous where it lacks an arguable basis either in law or in fact. As the Courts of Appeals have recognized, § 1915(d)'s term "frivolous," when applied to a complaint, embraces not only the inarguable legal conclusion, but also the fanciful factual allegation.5….
When a complaint raises an arguable question of law which the district court ultimately finds is correctly resolved against the plaintiff, dismissal on Rule 12(b)(6) grounds is appropriate, but dismissal on the basis of frivolousness is not." NEITZKE, etc., et al., v. WILLIAMS, 490 U.S. 319 (1989)
There is a huge gulf between a losing argument and a frivolous argument and Yates, not claiming that she asked to do something frivolous, usurped the function of the courts and violated legal ethics in determining what she thought was lawful or best. No one person has the right or duty to determine what is lawful or best (particularly silly and unethical stand by Yates) What is ultimately lawful is defined by the courts, and courts often find that a party has engaged in lawful behavior even though, in the courts' view, the lawful behavior is not the best course of action.
@JD Ohio
1. "…nor am I convinced that the Executive Order is lawful."
Your focus on whether Yates used the magic word "frivolous" is inane. Your attempts to distinguish between non-frivolous positions that have lost and frivolous positions ignore that the FCRP 11(b) standard concerns whether the attorney subjectively believes that the arguments would be frivolous or non-frivolous, not whether a temporally-challenged third party such as you subjectively believes so. Your further attempts to lump the Yates letter into the "non-frivolous positions that have lost" category are simply counterfactual.
2. "The Government has not shown that the Executive Order provides what due process requires, such as notice and a hearing prior to restricting an individual’s ability to travel.
Indeed, the Government does not contend that the Executive Order provides for such process. Rather, in addition to the arguments addressed in other parts of this opinion, the Government argues that most or all of the individuals affected by the Executive Order have no rights under the Due Process Clause."
Again, your focus on whether the courts used the magic word "frivolous" is inane. Since you've quoted from this opinion earlier, I'm sure that you'll recognize the above and the following as well:
and
That appears to walk right up to, if not cross into, frivolity. I wonder why the words "due process" do not appear in the Supreme Court opinion that you keep attempting to use against Yates?
3. "Being blinded by Trumpphobia and uninformed and insular outrage, you so far have refused to answer the question of how the Trump administration was making legally frivolous arguments when 'The sole prerequisite set forth in § 1182(f)' is that the President 'find[]' that the entry of the covered aliens 'would be detrimental to the interests of the United States.'"
That may be the sole prerequisite, but it is not sufficient for the E.O. to be constitutional and enforceable. Yet again you desperately seek to avoid the fact that the "covered aliens" under the first version of the E.O. are not the "covered aliens" at issue in the third version of the E.O.:
and
Oh, that would be why. Because almost nine months later the Trump administration pulled its head out of its ass and remedied enough of the blatant Constitutional violations that it was committing in the name of being bound only by a "sole prerequisite" that a bare majority of conservative Justices could hold their noses and sustain it.
4. "The long and short of it is that you go to great illogical lengths to justify the unethical actions of Yates, which are so fundamentally obvious that any first-year law student would clearly see her dereliction."
The long of the short of it is that the reasons are logical, the actions are not unethical, and I can easily get multiple first-year law students to agree so. You do not have a monopoly on correct opinion in this regard, and your continued insistence that you do in the face of multiple commenters who have disagreed demonstrates the inky depths of your delusion.
https://www.rollingstone.com/culture/culture-news/gavin-mcinnes-proud-boys-splc-lawsuit-789888/?fbclid=IwAR21Tj_-j5MbrvF93CC4zSf_OsbuP2WODxkS58xuhltOA0pTYRDOw3Pn9as
Hey, FYI, Proud Boys founder is suing SPLC, in case that interests you.
@M B
Simply the next chapter in what Ken discussed here:
* * *
Are these "facts" as adjudicated by courts as in "Owens Corning caused breast cancer" or "facts" as in "nothing can be accelerated faster than the speed of light." Because these are two entirely different types of "facts."
Never been to law school but I think it works like this…
A [potentially] provable fact is a an event which would have left evidence behind or a claim about what testing evidence would result in or a scientific hypothesis amenable to study. A statement of provable fact is the cliam the event happened or didn't happen, provable by presenting the sufficient evidence it did happen or the lack of necessary evindence that would be found had it happened; the testing results will prove or disprove the claim; or the concordance of scientific observations will eventually tend to strongly support or reject the claim.
Provable: Jerry spent many weekend afternoons the summer after his child graduated walking the trails of the nearby national park long after the rest of us turned back.
Not Provable: Jerry met the ghost of Jerry Garcia on one of these isolated walks.. [What evidence must exist of such a claimed event? Since the speaker is using the third person, ]
Provable: Later that year, Jerry quit going to Sunday services.
Not Provable: Jerry probably privately thought the minister was insincere.
Provable: Jerry said at the meeting that he was going to get a divorce. [He said it or didn't say it, and there were people who must have overheard it if he did say it.]
Not Provable: The best cheeses are made with sheeps milk. [An unadorned "best" is not a metrical reducable to evidence testing or science.]
Provable: Jerry died still owing me a lot of money from the time I bailed him out of Tijuana jail.
Provable: George never recouped the money Jerry owed him, but he took comfort in Elaine's company platonically nonetheless.
DRJlaw: "Your focus on whether Yates used the magic word "frivolous" is inane. Your attempts to distinguish between non-frivolous positions that have lost and frivolous positions ignore that the FCRP 11(b) standard concerns whether the attorney SUBJECTIVELY believes that the arguments would be frivolous or non-frivolous, …"
Trumpphobia strikes again. Clearly wrong and you have been arguing about Rule 11 with no understanding of a basic underpinning of the Rule. From the Federal Practice Manual ederalpracticemanual.org/chapter4/section2 (www and "f" left out of the beginning of the link because this site handles links poorly.)
" A court need not find bad faith to issue sanctions; good faith is no defense.40 Thus, an "empty head, pure heart" defense to a motion for sanctions must fail." There is no requirement of subjective bad faith. This is on top of citing the Griswold article that supported my position and not understanding your own cite.
Since, if you were a reasonable person, you would be thoroughly embarrassed [know you won't be], I won't thoroughly refute your other multiple mistakes, but I will address two other obvious issues.
First, you say that the procedural due process claim (the basis for the injunctions against the first EO) was frivolous. Haven't seen it being called frivolous, but shouldn't matter because the Trump administration publicly stated through the President's attorney that the EO would not be applied to Green Card holders 3 days after the EO was issued. The most likely explanation for the Appellate Court's (and other courts) decision to act as though the due process issue was in the case is that the judges shared Ginsburg's opinion of Trump and the due process issue was the easiest issue to use as a predicate for an injunction. In any event your fire and fury against the first EO is directed at a provision that was withdrawn 3 days after the EO was issued.
Second, you have claimed that because in your view a large number of courts ruled against the EO that that is evidence of frivolity. However, numerous organizations filed briefs in the case involving the first EO, and if the Trump position was frivolous, they had every financial incentive to file motions seeking to paid sanctions for frivolous positions; they would benefit financially if they could prove frivolity. You have cited no lawyer or court that used the word frivolous.
Bottom line is that the fundamental provisions of the EO that were important were legally proper and that Yates did act unethically in deep sixing the President. Additionally, you are here supporting her unethical behavior.
JD Ohio — can you not read your own references?
Trump's insistence in calling the first EO a Muslim ban to tie it to his anti-First-Amendment promises cemented the objective evidence of improper purpose.
And, immediately following that block, we have this:
So the magic word "frivolous" is not the end-all of legal review.
And just a bit further down, we have the paragraph beginning:
And the same statute which authorizes the president to make findings of fact [a point that the current administration is notoriously weak at, and with no indicia in the first EO that they tried] and Article I says it is Congress who sets immigration policy and Congress who wrote 8 U.S.C. § 1152(a)(1) which controls the throttling of visas on a by country basis. The relevant parts of 8 U.S.C. § 1182(f) come from 66 Stat. 163 ( June 27, 1951) Section 212(e). (located on page 66 Stat. 188). This act of 1952 had a per-country quota system but that was stripped out in 1965, arguably ending authority to discriminate by country, thus 8 U.S.C. § 1152(a)(1). Newer statue = better black letter law.
@JD Ohio
Oh my God, you are dense. Read the rule:
Subjective belief is an express part of the rule. The fact that subjective belief is not required for sanctions for an improper submission, the material which you quoted, does not mean that a subjective belief is irrelevant to susceptibility to ethical discipline for refusing to file a submission. You have yet to show any authority that says that it is unethical to refuse to file a paper merely because the filing of that paper would not be sanctionable per se. There is no U.S. bar that has supported or would support the idea that a lawyer must make any argument or file any paper demanded by a client unless that action would be clearly sanctionable.
You also missed R. Penner's gem in your haste, so let's view that once again:
Please cite the favorable precedent or literature argued to yet oddly unacknowledged by the Ninth Circuit proceedings? I'll wait…
"Haven't seen it being called frivolous, but shouldn't matter because the Trump administration publicly stated through the President's attorney that the EO would not be applied to Green Card holders 3 days after the EO was issued. The most likely explanation for the Appellate Court's (and other courts) decision [pure speculation as to the mental state of the Ninth Circuit Court of Appeals omitted]…" — JD Ohio
A refresher on the most likely explanation, as written by the Ninth Circuit itself (Occam's razor at work):
I find it odd, and hypocritical, that you condemn Yates for refusing to defend the E.O. and deem it unethical yet you have no problem with McGahn refusing to defend a part of the E.O. and making alternate Presidential policy in the President's stead.
"Second, you have claimed that because in your view a large number of courts ruled against the EO that that is evidence of frivolity." — JD Ohio
I most certainly have not. Quote the alleged claim, I dare you. I have cited Rule 11(b)(2), and called your focus on whether Yates used the magic word "frivolous" inane. As a second refresher, I have also said "there was no ethical duty to defend an E.O. that was not reasonably judged to be "warranted by existing law or by a nonfrivolous argument" and quoted Yates' closing that "I am not convinced that the defense of the Executive Order is consistent with these responsibilities nor am I convinced that the Executive Order is lawful." The astute reader would notice an alternate prong, the appearance of the word "or," and a discussion focusing upon whether aspects are within the law. But you are dense, rather than astute.
"Bottom line is that the fundamental provisions of the EO that were important were legally proper and that Yates did act unethically in deep sixing the President. " — JD Ohio
Except for the fundamental provisions that were dropped, the exceptions that were added and expressly relied upon by the Supreme Court, the fact that the first version of the E.O. (Yates) and the third version of the E.O. (that you deem "legally proper") are substantially different, and the lack of any disciplinary complaint or actual finding that Yates acted unethically.
"Additionally, you are here supporting her unethical behavior." — JD Ohio
Yes, I am supporting her ethical behavior. Perhaps you should file an ethics complaint about that as well.
JD Ohio:
Had you bothered to Google before making this "almost certain" claim, or hell, even kept up with the story as it was unfolding, you would know that the FISA court was informed of exactly this. The FBI told the court that the dossier was compiled by Christopher Steele and that they "speculated" it was funded by someone with a political grudge against Trump. (Christopher Steele himself did not know who was funding his research, and it appears the FBI didn't either, hence the speculation.)
You are mixing up your talking points with the common right-wing lie that he FBI knew that Hillary Clinton funded the dossier, and for some reason pretended not to know that when presenting their evidence to the FISA court. (Why they would do that, especially since they flat-out said it was funded by someone with a political grudge against Trump, is a question these people are too stupid to ask themselves. The entire claim is based on the idea that "The dossier was funded by someone who hates Trump" would possibly result in a different decision by the FISA court than "The dossier was funded by Hillary Clinton," which is astoundingly stupid even for these people.)
I see you have accurately represented the right's lie that the FISA warrant was entirely based on the Steele dossier and nothing else, so good job on that. I'm sure you'll be provided a free MAGA hat in the mail for your service.
Ken, for the love of G_d, please write a new post.
Chris: "You are mixing up your talking points with the common right-wing lie that he FBI knew that Hillary Clinton funded the dossier, and for some reason pretended not to know that when presenting their evidence to the FISA court. "
Here is what Bruce Ohr stated: "During his testimony, Ohr said he stressed during the 2016 meetings, many of which took place before the Page surveillance warrant was obtained, the potential bias and conflicts associated with Steele and the dossier that was commissioned by the DNC and Clinton campaign and handled by the opposition-research firm Fusion GPS. The surveillance warrant application drew on the unverified Trump dossier." [f]oxnews.com/politics/bruce-ohr-shared-details-about-meetings-with-anti-trump-dossier-author-with-justice-department-colleagues
Haven't seen the actual Fisa application. It sounds like you have. Why don't you tell me where you have seen it. I was doubting that the Fisa application mentioned that the most important source, Steele, was desperate to defeat Trump. Can you point me to that. You make all sorts of assertions. Why don't you state where they came from and give partial links.
Here is another summary, which should give everyone great confidence in the fairness of the application: "Nellie Ohr worked for Fusion GPS and that the Clinton campaign hired the firm to continue researching Trump. He [congress person] is also right that Bruce Ohr provided the FBI a copy of the dossier.
But the FBI received the dossier from multiple sources. And it is not entirely accurate to say the FBI used the dossier to spy on the Trump campaign since Page left the campaign in September 2016. The FBI relied in part on the dossier to secure a warrant to monitor Page, but the dossier was not the sole basis for the wiretap — and the wiretap was authorized in court." [n]ewsobserver.com/news/politics-government/article218184400.html
Am looking forward to seeing what is actually in the Fisa Application signed off on by Yates. Sure it will further confirm her competence and high ethical standards.
DRJlaw quoting Court of Appeals to show that it was following established procedure to ignore Trump administrations policy of not enforcing EO against Green Card Holders: "The Government has offered no authority establishing that the White House counsel is empowered to issue an amended order superseding the Executive Order signed by the President and now challenged by the States, and that proposition seems unlikely… blah, blah, blah
Interesting that Appellate Court had that perspective. Here is what the Supreme Court's policy has been in dealing with litigants' assurances made in the course of litigation as they affect Court's decision [in the Defunis case, mootness] "It matters not that these circumstances partially stem from a policy decision on the part of the respondent Law School authorities. The respondents, through their counsel, the Attorney General of the State, have professionally represented that in no event will the status of DeFunis now be affected by any view this Court might express on the merits of this controversy. And IT HAS BEEN THE SETTLED PRACTICE OF THE COURT, IN CONTEXTS NO LESS SIGNIFICANT, FULLY TO ACCEPT REPRESENTATIONS SUCH AS THESE AS PARAMETERS FOR DECISION. See Gerende v. Election Board, 341 U. S. 56 (1951); Whitehill v. Elkins, 389 U. S. 54, 389 U. S. 57-58 (1967); Ehlert v. United States, 402 U. S. 99" DeFunis v. Odegaard, 416 U.S. 312 (1974) Wonder why the appellate court didn't use this line of reasoning and didn't even discuss it?
Apparently, I need to remind you that "As advocate, a lawyer zealously asserts the client's position under the rules of the adversary system… when an opposing party is well represented, a lawyer can be a zealous advocate on behalf of a client and at the same time assume that justice is being done." [a]mericanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/model_rules_of_professional_conduct_preamble_scope
So, the bottom line here is:
1. the claimed unlawful portion of the first EO (including Green Card holders) was dropped 3 days after EO was issued. (Certainly with the approval of the President. Stupid of you to argue that McGahn acted on his own, and that I am hypocritically giving him slack and not Yates) The fundamentals of what Trump was trying to accomplish were clear 3 days after the EO was issued. (You claim with no substantiation that 3rd EO was substantially different than the first. Why don't you point out how and how the non-Green Card provisos were so unlawful that they were frivolous and not supportable by reasonable arguments that could defeat the requested injunctions)
2. Yates claimed she had the authority to determine what was "best". (Preposterously stupid claim)
3. Instead of resigning and keeping her mouth shut, Yates grandstanded and improved her political standing among her associates. Meanwhile clearly violating her duty to zealously represent of the Office of the President and benefitting from her unethical action.
4. You have cited no one involved in the litigation (including Yates) who stated that the President's positions were frivolous. Even if Trump's position had been unlawful in the final analysis, it does not make it frivolous to argue a point that a court later concludes is wrong and ultimately unlawful. Many losing arguments are reasonable to make. (A point that flies way over Penner's head)
4. The Supreme Court upheld the fundamentals of the First EO (excluding the Green Card provisions) basically giving Trump unfettered authority to give heightened scrutiny to people from Muslim countries — Essentially a complete victory for Trump on the non-Green Card provisions. The Supreme Court held that: "The sole prerequisite set forth in § 1182(f) is t h a t the President "find[]" that the entry of the covered aliens "would be detrimental to the interests of the United States." A standard that any President can meet any time by simply giving any reason.
JD Ohio:
No one outside Congress has seen the FISA application. That said, the Schiff memo demonstrated that the earlier Nunes memo was a pack of lies, pointing out that the FBI revealed to the FISA court that the dossier was paid for by someone politically opposed to Trump, that Page had already left the campaign at the time he was spied upon, and that the dossier was not the sole basis of the wiretap. I'm heartened to see you acknowledge the latter two facts yourself.
https://www.nbcnews.com/news/crime-courts/why-team-trump-wrong-about-carter-page-dossier-secret-warrant-n893666
The five conservative members of the Supreme Court didn't just give Trump "unfettered authority to give heightened scrutiny to people from Muslim countries," they gave him unfettered authority to ban those people from coming to the United States at all, period. That no specific national security threat was cited to give him such authority, and that such authority violates the portion of the Immigration and Nationalization Act that says that no one shall be discriminated against in the issuance of a visa based on national origin were both facts either not considered by those five members or considered irrelevant. Also explicitly deemed irrelevant by these members were Trump's explicit statements that he intended this as a "Muslim ban," thus violating the first amendment, because these members believed that the motivation of a politician in passing a law is immaterial to deciding on the constitutionality of that law, a standard that would have allowed literacy tests and poll taxes. And who knows, maybe this court will allow those to stand if they are ever brought back, given how unwilling this court has been to strike down similar measures to keep black people from voting. My view of their decision on Trump's intended "Muslim ban" is adequately described in the dissents from the other Supreme Court members who still believe that overt religious bigotry matters when considering constitutionality, as well as in Sally Yates' original refusal to defend the ban, which is unconstitutional regardless of the opinion of five out of nine people.
Chris: "the Schiff memo demonstrated that the earlier Nunes memo was a pack of lies, pointing out that the FBI revealed to the FISA court that the dossier was paid for by someone politically opposed to Trump, that Page had already left the campaign at the time he was spied upon, and that the dossier was not the sole basis of the wiretap."
What you are saying may or may not be true. It doesn't matter to me. What matters to me is that Steele made clear that he was desperate to stop Trump. [t]elegraph.co.uk/news/2018/02/02/donald-trump-approves-release-controversial-memo/ 1. That being so, it should have been disclosed to the FISA court. I highly doubt that it was. 2. If it was disclosed to the FISA court and the court approved the search, then almost certainly the court failed in its mission and the whole process needs to be examined.
Additionally, in a general sense, it doesn't give me any confidence that Peter Strzok set in motion the FISA warrant. See [b]usinessinsider.com/peter-strzok-clinton-emails-trump-russia-investigation-mueller-2017-12
@ JD Ohio
Zealous advocacy does not mean that you must throw your reasonable judgment as to what is within the scope of FRCP 11(b) out the window. That's a preamble, not the actual disciplinary rule. Learn the difference.
Also:
1. Everybody but you acknowledges that the third E.O. was substantially different from the first E.O. It is not my burden of proof to show that an E.O. that was subject to multiple preliminary injunctions was "the same" and lawful. It is yours. I've already identified the qualifiers that the Supreme Court itself placed in its opinion. Your wish to "exclude" the non-Green card provisions and other due process mechanisms in order to claim victory is transparent, unconvincing, and mendacious.
2. I've quoted Yates' applicable language already. Your fetish for "best" is as inane as your fetish for "frivolous." Yates decision was demonstrated to be reasonable by the number of courts that issued or upheld preliminary injunctions of the first E.O. as unlawful and the lack of support cited by the Government for its due process theory. End of story.
3. Wrong. You can repeat this claim until the end of time, but neither I nor others here are buying it. Yates is practicing law as a partner at King & Spalding and there's not a damn thing that you can do about it.
4. Your old fetish for "frivolous" remains inane. The first E.O. was deemed likely to be unlawful and subsequently abandoned by the Administration. That is enough.
4 part 2, a.k.a. "5." You can attempt to "exclude" "[non-fundamental] non-Green provisions" in order to claw your way to a "complete victory to Trump," but your own words make clear to all that it was far from complete. "A standard that any President can meet any time by simply giving any reason" — except for discrimination on the basis of religion, and retroactive denial of entry to those already having a right of entry. Whoops. Forgot those.
@JD Ohio
Why don't you use your awesome legal and research skills to answer your own questions, instead of Gish galloping every commenter who contradicts your drivel?
http://www..cnn.com/2018/07/22/politics/read-carter-page-fisa-documents/index.html has had it up since last summer.
Another trivially located discussion of the disclosure:
Are we going to fetishize "desperate" now? Or does the last sentence satisfy your demand for disclosure?
Folks, just a reminder as you argue the definition of words with JD Ohio. (S)he has previously explained that (s)he takes a very Humpty Dumpty approach to language – words mean exactly what (s)he wants them to mean at any given time, and obtain a new meaning when that becomes desirable. (S)he delights, by admission, in watching people struggle to match the actual written word to what the words ACTUALLY mean at any given time.
All of which is to say: and conversation is JD Ohio is, literally, worthless. No progress can ever be made, on any front at all, because JD Ohio does not actually believe that using a shared language, and shared definitions, has value.
By all means, wage your arguments if they make you happy. But don't let yourself imagine you might actually change the troll's mind. It's not going to happen.
It was.
Wrong. Whether a source had an agenda does not, in and of itself, invalidate the source.
Oh, look, the racist has no Google skills. What a shock.
The point is not to convince the troll. The point is to convince the audience, and to mock the troll as a bonus.
+1, though for me it's mocking the troll as the primary, followed by convincing the audience.
Steele having personal opinions about the people involved in his work is sure getting flogged pretty hard.
When you're selecting an expert to testify in your cases, is it a requirement that in addition to being an expert, they've never held any opinions, or are their personal opinions usually irrelevant to their professional judgments?
What if an auditing accountant hates a co-worker, and then uncovers fraud by that person? Are the facts that they uncovered somehow tainted by the existence of an opinion? What if an employer finds out an auditor, or lawyer, or some other regulated professional, has an opinion (good or bad) about a co-worker; do they have to immediately fire them because they're no longer competent to function as a professional?
The whole thing seems odd; would it be some shocking ethical violation to find out that a police officer despised convicted felons, and mean that they're only allowed to investigate first-time offenders? Or would you instead need to look at their actual conduct in the actual case before a court?
Inquiring minds want to know! lolol
Also, imagine if drjlaw had to communicate entirely without pejoratives. It would sound like, "[crickets]." I swear, every single thing this person says uses a pejorative as a required element of the argument; everything it says is provably false, because every single objective fact is supported by subjective assertions that purport to affect the analysis, and are therefore not actually objective or provable.
He probably specializes in teaching how to give press conferences.
That is a good point, Cromulent Bloviator. To some extent, that's just the lowest-hanging fig leaf in the conservative media garden, but it also feeds into the deep-seated "Deep State!!1!" paranoia of their base. I met my first WorldNetDaily, InfoWars, and FOX News binge-consumer last night, standing in a grocery store checkout lane. He was perfectly calm, pleasant, articulate, soft-spoken, and even smiling, but 95% of our conversation was a single run-on sentence that he uttered with no pauses or breaks, that summed up every stupid conspiracy theory that's ever flatulated from those sources: everything from "Hillary's dying and covering it up" to "the Queen has secretly abdicated, passing over the elder son because she's being blackmailed" to "Trump is secretly working to unmask traitors all over the government," punctuated only by "… and the media refuses to cover it." It was enlightening. He wasn't stupid, merely parroting ridiculous information that he didn't know enough to recognize as such, but he fully bought into the idea that everyone was just out to get Trump because they didn't like him, and therefore any damaging info that the Russia investigation turns up shouldn't be trusted.
So…… Political hacks seed the public discourse with stupid ideas like the one you describe, and surely they recognize their own hackery. But those ideas attach themselves to people unable to defend themselves with relevant prior knowledge or thought, and then they become sincerely held. It is a most grievous condition of things.
Is it possible you meant to refer to JD Ohio rather than DRJLaw? I really hope so. Their contest of arguments seems one-sided, to me, in the opposite direction to that which you imply.
(((Ken, I have left comments here (for better or for worse) under another name, but I'm changing my name across the internet permanently and entreat your forbearance.)))
NEW TOPIC
Trump is made a shoddy proclamation to do a shoddy end-run around Congress. But…
At the heart of it is 10 U.S. Code § 2808 which authorized otherwise illegal military construction so long as the emergency "requires use of the armed forces" and with the authority ending “at the end of the … national emergency” so …
Is this not an invitation for the Courts to judge if
1) there is an objective requirement to use the armed forces
2) there is an objective standard for determining the end of the requirement to use armed forces, and
3) (perhaps on shakier ground) there is an objective end to the "emergency" described in the proclamation when elements of it are non sequiturs or contradicted by facts????
www whitehouse gov presidential-actions/presidential-proclamation-declaring-national-emergency-concerning-southern-border-united-states/
50 U.S.C § 1622 -> allow congress at anytime to end emergency (though the president can attempt to veto), requires review every 6 months, president to renew every 90 days BUT does not seem to give president right to determine if armed forces are "required"
50 U.S.C. § 1631 -> requires specification of what statutory authorities invoked
10 U.S. Code § 2808 -> military construction funds diverted in case of emergency requiring armed forces
10 U.S. Code § 12302 -> Allows president to coerce up to 1 million Reserve soldiers for up to 2 years each into his schemes in times of emergency
See Post above
The current situation is that border security is the status quo, not an emergency. The largest humanitarian crisis at the border is caused by the terrible way we treat those who apply for refuge status and the current administration’s glee in breaking up families. There is no “core national security interests” in crisis or unusually stressed state as the Mayor of El Paso will attest to. And actual “core national security interests” have been already addressed by existing border controls for decades.
By definition, any border is the entry point for anything, but the border is not geometrically point-like and is geographically and socially heterogeneous so a policy treating it as point-like risks being bad policy based in ignorance. Since not all criminals, gang members or narcotics originate from outside the US, we are going to require data here. Existing data indicates that 1) the majority of illegal immigrants overstayed their visa and thus likely came by plane and 2 ) immigrants are less likely to be criminals than the average American, 3) with the exception of marijuana (defined in law, not science, to be a narcotic) and possibly Miami Vice-style illicit shipping, drugs enter this country at points of entry (controlled border crossings, ports and airports), not the whole of the “southern border”.
I agree, the President and his staff are TERRIBLE. But first, a word about framing — the existence of large-scale migration is driven by the US’s economy, that the laws do not reflect this is a problem, that Congress has ceded authority over emigration to the Executive branch and they seem to be all incompetent kleptocrats seems to problem. But to talk about the large-scale migration you need to understand numbers better than Donald Trump. Casinos aren’t about the gross cash transactions but the net flow of profits. Likewise, it seems petty to complain about the numerical size of unwanted immigration if the outflow exceeds that number. (“From 2009 to 2014, Pew estimates that 1 million Mexicans and their families (including U.S.-born children) left the U.S., while 870,000 Mexicans arrived. … Meanwhile, migration from Asia to the United States has ramped up, and now outpaces overall arrivals from Mexico.”)
Except there is no logical or statutory need to detain them indefinitely nor is there a link between “seeking entry” and this topic when some of the reasons they seek entry are ground for granting them refugee status, a right enshrined in law, even for those caught having entered illegally.
“Often?” Again, Trump needs statistics. The shutdown gave us plenty of examples of people traveling hours to show up at immigration hearings that were never held. And isn’t he just complaining about the mechanisms of due process strained by a government strangled by his (and Bush’s) tax cuts?
That was the National Guard. Unpopular and viewed as an expensive photo op, they couldn’t actually act like a police force as per Posse Comitatus so they marched, strung up unpopular razor wire and ran surveillance operations with low ROI. Meanwhile, the actual border security touts their drug seizures at ports of entry.
Non sequitur. You don’t bring a gun to a funeral due to the gravity of the occasion. In this case you bring a gun to the funeral because Congress said in 1976 that you need to bring a gun before we will believe you REALLY want the money.
Math notes
The first year "of the Independence of the United States of America" would be some time July 4, 1776 through July 4, 1777. So for Feb 15 of year X to be the Nth year "of the Independence of the United States of America" we have N = X – 1776. This is 2019, so 2019 – 1776 = 243.
But you could tell by the language that Trump didn't author this part.
Dershowitz is a piece of shit.
Always has been and always will be.
@Cromulent Bloviator
pe·jo·ra·tive
/pəˈjôrədiv/
adjective
expressing contempt or disapproval.
The irony boggles the mind.
I'm having trouble following your logic. How are things that are not actually objective or provable "provably false"? Inquiring minds want to know.
@drjlaw
I used the noun form, not the adjective. Boggle not thy mind using so many loops.
Also, quite plainly: objective statement + subjective statement = subjective statement.
Therefore, objective claims supported by subjective bullshit proves itself false.
@Cromulent Bloviator
Try again. You wrote "everything is provably false." You also wrote "every single objective fact," not "objective claims." Finally, subjective statements are not inherently false.
Oh, and "bullshit" is a pejorative whether you intended a noun or an adjective. Hypocrite.
DRJlaw: "Everybody but you acknowledges that the third E.O. was substantially different from the first E.O. It is not my burden of proof to show that an E.O. that was subject to multiple preliminary injunctions was "the same" and lawful. It is yours. I've already identified the qualifiers that the Supreme Court itself placed in its opinion. Your wish to "exclude" the non-Green card provisions and other due process mechanisms in order to claim victory is transparent, unconvincing, and mendacious."
Notwithstanding the Supreme Court upholding Trump's travel restrictions and the obvious legal justifications for them, you have attempted to ignorantly and mendaciously weasel away from that holding and claim that the First EO was so different from the one approved by the Supreme Court that Yates could deep six her client on the ground that it would be frivolous to defend it.
Apparently, you think that the AG's Office of Legal Counsel (almost certainly composed of a large majority Obama holdovers) is completely incompetent. It declared with respect to the first order that: "The proposed order is approved with respect to form and legality." [w]ikipedia.org/w/index.php?title=File%3AOLC_opinion_on_legal_form_review.pdf&page=2 [Might that be the reason that Yates didn't use the word frivolous] Federal District Judge Nathaniel Gordon stated: "Because plaintiffs have not demonstrated that they are likely to succeed on the merits of their claims, an extension of the restraining order at the present time is not warranted," [c]nn.com/2017/02/04/politics/donald-trump-travel-ban-legal-challenges So, even before the Supreme Court upheld the fundamental procedures that Trump was implementing, there was substantial authority that his EO was not only not frivolous, but legally correct.
Even more basic, if you apply the Supreme Court standard of looking at the facial characteristics of the first EO and Trump's finding that national security interests were implicated and consider that his order did not mention Muslims or Islam, it would facially pass muster once he unequivocally withdrew the application of the order to green card holders.
Finally, the Washington v. Trump appellate decision which held that Trump's first EO was not valid was based solely on the due process rights of green card holders. This decision is even worse and more sleazy than I first imagined. On January 29 the Secretary of Homeland Security John Kelly deemed entry of lawful permanent residents into the U.S. to be "in the national interest" exempting them from the provisions of the order. This is one day before Yates' grandstanding letter. (No mention of Kelly's action in Court of Appeals decision. I wonder why) Of course, Kelly's action was further implemented by the unequivocal statement of the White House counsel, McGahn, on Feb. 1 that the order would not be applied to green card holders. In fact NO green card holder was EVER EXCLUDED from the US under the first order or any other order. [w]ikipedia.org/wiki/Executive_Order_13769#cite_note-nyt_greencard-123 Yet, the Court of Appeals ignored the procedures set forth in Defunis to reach a due process issue that was NOT excluding ANYONE. My so-called "wish" to exclude green card holders is 100% consistent with the fact that no green card holder was ever excluded from the US. The Appellate Court searched for an imaginary issue to invalidate the EO, and, of course, dishonestly found one.
Thank you for your lazy, uninformed comment which encouraged me to look even more closely and find more sleaze and dishonesty. I am sure you will dig deeper again, which will again reveal additional sleaze and dishonesty on the part of the Left.
@drjlaw
The difference is that I placed my pejorative where it is appropriate; in the conclusion, rather than the supporting argument.
@Cromulent Bloviator
It was the entirety of your argument. Hypocrite.
@JD Ohio
Oh, look. It appears that in your quest to use the cool new word that I've taught you, you've inverted the meaning "mendacious." I've never denied that the third E.O. was upheld. You, on the other hand, keep insisting that Yates overruled Trump on the substance of the third E.O. (the one that was upheld), that the first E.O. and the third E.O. are one and the same, and that the exceptions to the first E.O. noted by yourself and the Supreme Court somehow don't count.
See? You can't help but note the change at the same time as you deny that anything changed. As for "the Supreme Court standard of looking at the facial characteristics," odd how that is only the sometimes standard.
The only facial characteristics involved are the overt racism and religious bigotry of the current president. The sad part of that you believe that he cares at all. You're just a means, even less important than all of the associates that he has used as disposable props. Trump is only for Trump, and you are not a Trump.
Can we all, just for a second, acknowledge that we aren’t complete fucking idiots, and that we all know that the travel ban was implemented due to Trump’s anti-Muslim bigotry, regardless of whether or not the order itself ever mentions Muslims or Islam? That five out of the nine conservative justices were not willing to acknowledge that they weren’t fucking idiots, and chose to pretend that motivations in crafting a law don’t matter—a standard that would make literacy tests for voting constitutional—doesn’t change that fact. Yates was right on the merits, as were the four dissenting justices, who also couldn’t figure out why the other five were pretending that the long history of Trump’s anti-Muslim bigotry either didn’t exist or didn’t matter to the constitutionality of the law. Yates chose to side with America and its principles of freedom and equality over the bigot that was voted into the oval office by a minority of Americans who happened to live in the right places, and she was right to do so.
https oag.ca.gov /system/files/attachments/press_releases/Multistate%20Emergency%20Declaration%20Lawsuit%20.pdf
Selected Captions:
PRESIDENT TRUMP HAS LONG CLAIMED THAT A “CRISIS” AT THE BORDER REQUIRES BUILDING A BORDER WALL, BUT HAS NOT DECLARED A NATIONAL EMERGENCY UNTIL NOW
CONGRESS HAS APPROPRIATED LIMITED FUNDING TOWARD A BORDER BARRIER AND NO FUNDING TOWARD PRESIDENT TRUMP’S PROPOSED BORDER WALL
THERE IS NO IMMIGRATION ENFORCEMENT “CRISIS” OR “INVASION” AT THE SOUTHERN BORDER TO SUPPORT THE DECLARATION OF EMERGENCY
There Is No Evidence That a Massive Influx of Migrants Is Overwhelming Government Resources at the Southern Border
There Is No Evidence that Terrorists Are Infiltrating the United States via the Southern Border
There Is No Evidence that a Border Wall Will Decrease Crime Rates
There Is No Evidence that a Border Wall Will Impact the Smuggling of Dangerous Drugs into the United States
(Heh, Marijuana is a "narcotic" by legislative fiat, but dangerous is objective fact)
There Is No Factual Basis to Support the Statutory Criteria for Diverting Funding
Plaintiff States and their Residents Are Harmed by the Executive Actions
Harm caused by diversion of funding and other resources
Environmental harms to the States of California and New Mexico
(Claims for relief:)
VIOLATION OF CONSTITUTIONAL SEPARATION OF POWERS
VIOLATION OF APPROPRIATIONS CLAUSE
ULTRA VIRES
VIOLATION OF NATIONAL ENVIRONMENTAL POLICY ACT
@R. Penner
It's facially lawful. JD Ohio will tell you so. Surrender to the shallow, superficial analysis and let the authoritarianism soothe your fears away…
In addition to the lack of any emergency which actually "requires use of the armed forces," the complaint also points out that 10 USC § 2808 authorizes not "construction" but "military construction" and so border walls and related land grabs need not apply.
10 USC § 2801(a) — definition of "military construction"
The complaint also seeks to prevent diversions of other funds on the grounds it would harm various state interests, notably anti-drug policing, economic but-for-these-action stories and environmental protection of cute macrofauna (and other plants and animals).
Resume original topic
https thehill.com /hilltv/rising/430728-dershowitz-says-covington-catholic-student-has-reasonable-case-against-the
Well, if Dershowitz thinks it's reasonable… I'm going have to dig into it myself to form an opinion.
Allegedly, the $250 million figure from the lawsuit was engineered to match what Jeff Bezos paid for the WP. Almost like someone has a political axe to grind…
https www washingtonpost com /lifestyle/style/the-washington-post-sued-by-family-of-covington-catholic-teenager/2019/02/19/aa252be4-349c-11e9-854a-7a14d7fec96a_story.html
The case was filed in the Eastern district of Kentucky. It targets the "gist" of the Jan 19 reporting but also indicates that there was a disinformation campaign that didn't come to light until Jan 23.
The complaint itself is loaded with unseemly political slant and tries to label the press collectively as "bullies."
SANDMANN v. WP COMPANY LLC 19-cv-00019 N.S. v. WP Company LLC
PACER: https ecf.kyed.uscourts.gov /cgi-bin/DktRpt.pl?88372 ($$)
Despite naming other parties that contributed to their discomfort, the WP is the only defendant.
@R. Penner
I heard on Popehat that Dershowitz is a liar, though. So there's that.
And, when somebody claims the whole world was guilty of libel, under US law, that's like saying the whole world commits 12 RICOs per day. Only mean prosecutors and Law Cat (check internet for details) believe that.
The kid is suing the news. When you sue the news, you lose. Unless they posted your sex tape or something like that. If they merely got the story wrong, according to you, or even according to themselves, you lose.
He's not suing because some lawyer thought he is going to win. There is no way a lawyer actually believes that, even if the liar said it. He's suing because his parents don't mind ruining his life if it means their family gets some attention.
Has this blog been abandoned? I really miss it.
@Cromulent Bloviator
I think his life has already been ruined by the irresponsible and potentially defamatory reporting…I think that's why they're suing–suing could not possibly ruin the kid's life anymore than what's already been done.
"He's not suing because some lawyer thought he is going to win. There is no way a lawyer actually believes that, even if the liar said it. He's suing because his parents don't mind ruining his life if it means their family gets some attention."
He is suing because he already got attention he did not want. Various news organizations have admitted they got it wrong. What is left is either the hope of a settlement or forcing some kind of change in journalist practice.
@James
The Barbra Streisand effect dooms such efforts. But I think "he is suing" because his parents (who sue on his behalf) have a political axe to grind.
Got what wrong? There was a confrontation. There was a video. There was a man of advanced years telling a sad story. There was also a social media drive to promote the video (source unknown to me as of yet). Details emerge over time but the details of the instant are what we call news.
Do you think the WP has some magical way of knowing the future or knowing all or forcing all possible witnesses to tell their stories?
It would be the WP's insurance carrier who would pay any settlement, but let's focus on the second prong.
What change in journalistic practice does the Sandmann case seek?
In the Feb 14 letter to the WP (Exhibit L of the complaint), the Atlanta-based lawyers took issue with many items, the vast majority of which are verbatim quotes directly attributed to Nathan Phillips and other persons including the Bishop Foys of the Diocese of Covington, Kentucky, meaning a libel case against only the WP is not going to be responsive to those elements. AT ALL.
Of the complained about statement few mention the plaintiff directly. Presumably his facial expression is characterized as a "relentless smirk" and is a subjective judgement based on photos and/or videos. A later article identifies him by name as the student in the video who "stayed still" when other student's got out of Phillips way. And while those aren't directly sourced, in an interview Phillips said "I started going that way, and that guy in the hat stood in my way and we were at an impasse. He just blocked my way and wouldn't allow me to retreat." That's it. Time and time again, the lawyers identified statements of Phillips, the diocese and other people claiming what they saw or how they felt and the lawyers call that false and defamatory, when any falsehood cannot be laid at the feet of the WP.
Go on! It's easy to whinge about how X is awful, but unless you demonstrate how X can be done better, all you are doing is whinging. Please identify what practice is not generally good and specifically bad in this case. Sourced statements. Check. A minimum of interpretation and commentary in a news article. Check. Subject is current and newsworthy? Check.
But no, the lawyers are complaining about the "gist" of the article. Might as well sue over the Zeitgeist.
The Barbra Streisand effect is when the attempt to hide something brings even more attention. It does not apply in this case. The Covington lawyers are purposefully bringing attention in order to get a financial or at least political payout.
The plaintiffs lawyers will attempt to show that the media continued to publish false information even after the media knew their information was incorrect . Its a long shot but most of the other hurdles are already cleared.
– non public figures
– some/most of media as admitted initial information was incorrect
– public acknowledgment of threats of violence against the kids
– public acknowledgement of attempt to hamper future earnings of the kids via attempted to force withdrawal of college access.
James:
What false information did the Post publish?
Can you cite a single provably false statement, not attributed to an interviewee, from one of their articles about the protest?
@James
On the topic of why the lawsuit was filed, you attributed it to unwanted attention. But attention is something that accumulates, and a public lawsuit is a poor tool for ending attention as Barbra Streisand found in 2003 when 4 non-attorney views of her house turned into 420,000 in a month. You agree with me that the lawsuit will indeed bring more attention to Sandmann, which was never in doubt since it was from news coverage and commentary that I brought it here. The Streisand effect may very well not apply to this case, as relentless smirkers are not the only ones who love attention. But it does apply to your attribution to "attention he did not want" for the lawsuit. In now seeking to claim I am offbase with respect to the Streisand effect, you are being obtuse and unpleasant.
Libel cases aren't about hurt feelings or unwanted attention. Because of the First Amendment, they have to be about objective untruths. It's not libel to print that someone, even a particularly sympathetic and later proven innocent person, an alleged murderer when that is what the DA said. Thus it is critical what the WP wrote on their own behalf and not merely attributed to others when determining which statements and false, defamatory and their responsibility.
Thus, before you utter a single word, you have to address the elephant in the room:
What false information did the Post publish?
To side with Sandmann's lawyers without addressing that simply leaves the impression you are being a partisan hack.
@R. Penner
To clarify, that's not how libel cases work. If Bob defames Joe, you are not necessarily privileged to publish, "Bob said ____ about Joe." If Bob's statement was libelous, your statement of what Bob said might also be libelous. MIGHT. Common law long recognized a 'neutral reportage' privilege when writing in an unbiased fashion about matters of public interest. The 2nd Circuit has invoked this concept in the case of republished defamatory statements made about public figures in Edwards (1977).
If the victim of the defamatory statements is a private figure, that protection may not apply. I don't know of any federal ruling that addresses this question, but several State Supreme Courts have ruled there is no such protection, including but probably not limited to: New Jersey, in Lawrence v. Bauer (1982); California, in Khawar v. Globe Internat (1998); and Kentucky, in McCall v. Courier-Journal & Louisville Times (1988).
So, can The Post be held liable? I have no idea, but I do know that, at the very least, "we're just reporting what someone else said about the plaintiff" is not a reliable defense.
The idiocy of thinking you might be able to sue the news for reporting on it really puts the political blatherings of various parties in the correct light.
I mean, the lawsuit basically is, "I don't like what is coming out of that press over there, gubermint will you pretty-please regulate what they said. Their words bruiseded my feelies!!!"
It is almost as if there is some basic civic principle that covers it. Hmmmm… Golly, I wonder if anybody around here would have ever heard about something like that?? I guess not, probably just something nerdy and esoteric.
I know that when I don’t want a lot of attention, I always go to a protest in a bright red hat with a controversial slogan on it. Whomst among us doesn’t?
I know that when I don’t want a lot of attention, I always go to a protest while wearing a bright red hat with a controversial slogan on it. Whomst among us doesn’t?
@Bob Thank you for that. It jibes with what I've heard about other basic torts like product liability.
But by design of his parents and the diocese, Nick Sandmann may have been primed to be considered a public figure for limited purpose — potentially the face of a D.C. protest. And what is he known for now? Getting in the face of two other D.C.-visiting groups.
Perhaps everything else is a book review.
I don't get the thrust of this. So he's wrong about 18 USC 1001, a law that will never matter to most of us who aren't unfortunate enough to be prosecuted by the feds. And he's advocating against it in a way that overstates how likely it is to be overturned–there is, unfortunately, broad agreement on its usage. Yet I thought we all agreed that this law *should* be changed to require some higher standard than "the feds think you said something inaccurate" though maybe it's less clear on what the standard ought to be–honestly, I'd love to read a good piece on *that* talking about real cases and real issues to outline a plausible new standard that would in practice improve things.
So I guess it's just weird to focus on the nit of disagreement when you ought to be pushing on the broader agreement so as to reign in the abuse of this sort of law, which you normally would champion. Instead it feels like the choice of targets this time has you all but defending a law you're on record as hating. I mean, sure, I don't buy that some obscure old decisions are going to overturn 6 circuits that agree with each other, but I also know that these laws don't change until someone charges uphill to challenge them.
And it's weird because Manafort's case might be a good one to break that agreement, even if it's for all the wrong political reasons. I guess the difference is whether you value getting Manafort & co. more or less than fixing a widely-abused law?
I was curious myself about what the WaPo actually said about the Covington kids:
https://www.washingtonpost.com/nation/2019/01/20/it-was-getting-ugly-native-american-drummer-speaks-maga-hat-wearing-teens-who-surrounded-him/?utm_term=.75b1420f8548
I had to look to find what I think is the original WaPo article, above. It seems they quote Philips from an interview where he said he "felt threatened by the teens and that they swarmed around him as he and other activists were wrapping up the march and preparing to leave" (which was shown to be a lie in the full video). They haven't posted any sort of clarification or retraction of that point, despite having seen the video according the follow-up article and having been publicly invited (along with every other media outlet) prior to any lawsuits:
https://www.washingtonpost.com/opinions/2019/01/23/nothing-justifies-what-covington-students-did/?utm_term=.fa74c31c9fb0
So it's interesting, it's true that he said that, but it also didn't happen and the WaPo has done nothing to either article to explain that, regardless of how he felt, he was not surrounded, he walked up to them.
They say that nothing excuses what the teens did… you know, how awful they were standing there, waiting for their bus and smiling at the guy with the drum and all that while the Black Israelites yelled racist nonsense. I mean, why didn't the chaperones take them somewhere else, where they would have no way home? Apparently they also insulted the folks yelling racist stuff (wait, I thought they were the racists?).
So it's interesting, I can't find any of the WaPo's own words here, but I also see them failing to update the article to expose some of the lies told here, though apparently they did update the first one to reflect that the Nathan Phillips isn't actually a Vietnam veteran.
So I think the WaPo is lying by omission here. Note the present tense: they were invited to correct things quite publicly prior to the suit. There's no mention of who told them Nathan Phillips was a Vietnam veteran (did he lie to them? that seems relevant here…), there's no link to the full video, they don't bother to point out that Nathan Phillips lied to them about being approached and surrounded, as can also be seen in the full video, etc.
Of course false light is a higher standard than ordinary defamation and I'm not going to pretend to be a lawyer, I'll let others digest this, but I certainly feel that by reporting other people's lies and never issuing corrections after they were proven (and they've been given opportunity very publicly to do such), that they've painted the kids in a false light.
But that's my own opinion, I'm not going to make any legal claims as to whether that's correct as a matter of law. Nathan Phillips lied to them, up to that point, I would excuse it, but not admitting that fact after the video came out? I'm sorry, they need to own up to having been fed lies.
Yes, that standard might kill political news. I wouldn't miss it.
Hi @Popehat!
I just learned y'all blocked me on twitter.
I would like to appeal the decision if possible.
@RightOfLeft_TX
> What false information did the Post publish?
They published and later refused or otherwise failed to correct false claims made by Nathan Phillips about having been surrounded and harassed by kids merely standing at their bus stop, who he approached. They then wrote a follow-up article once a longer video came out that also failed to address this point, failed to link to the video, and still claimed the kids were in the wrong for not leaving their bus stop when the Black Israelites showed up. They, and all other media outlets, were publicly invited by the Covington kids' lawyers to issue corrections.
IANAL, but this looks similar to "false light" claims I've read about. I'll let actual lawyers say whether or not this applies here. I personally think this is a lie of omission they corrected the article once Nathan was proven not to be a Vietnam veteran, but went no further and did not address whether Nathan lied to them about that, as he did about other matters. In other news, the YouTube channel that outed Nathan's stolen valor has now been shut down by Google…
They were publicly invited to issue corrections and refused to do so. At this point, I personally believe they're complicit with his lying and their failure to correct the statements they are still publishing changes those into something that I consider their own statement on the subject.
I can't consider this "neutral reporting" when they only even attempt to present one side of it. Notice what's *not* in their articles? Any attempt to contact those kids or any explanations from them.
As far as I'm concerned, it's no loss if the WaPo goes the way of Gawker.
DRJlaw: "As for "the Supreme Court standard of looking at the facial characteristics," odd how that is only the sometimes standard.
"Unlike in [Masterpiece Cakeshop v. Colorado Civil Rights Commission, 585 U.S. ___ (2018)], where the majority considered the state commissioners’ statements about religion to be persuasive evidence of unconstitutional government action, the majority here completely sets aside the President's charged statements about Muslims as irrelevant" — Justice Sotomayor
As usual you deflect and ignore the relevant issues that I brought up and you have (sort of) attempted to rebut. I made the simple point that Yates unethically deep-sixed her client, the office of the President. You then made the erroneous argument that the first EO was so flawed that an attorney could deep-six her client because the attorney would have to make frivolous arguments to defend it, notwithstanding the Office of Legal Counsel found that the EO was legal and a federal district judge strongly implied it was legal. Also, notwithstanding that Yates took the unbelievably stupid position that it was for her to determine what was "BEST". In support of your silly and uninformed opinion, you cited Griswold, who in fact supported my position.
Now you cite a DISSENTING opinion by the bigot Sotomayor (remember her racist "wise latina" remarks and schtick) who is dumber than a rock. For instance, in the Ricci v. DeStefano affirmative action case, when she was hearing it while sitting in the Second Circuit, she was so stupid that she couldn't defend her affirmative action views which are at the heart of her jurisprudence and simply affirmed in toto a very flawed district court opinion. Here is what judge Cabranes, also of the Second Circuit had to say:
"Four months later, and three days prior to the publication of this opinion, the [Sotomayor] panel withdrew its summary order and published a per curiam opinion that contained the same operative text as the summary order, with the addition of a citation to the District Court's opinion in the Westlaw and LexisNexis databases. This per curiam opinion adopted in toto the reasoning of the District Court, without further elaboration or substantive comment, and thereby converted a lengthy, unpublished district court opinion, grappling with significant constitutional and statutory claims of first impression, into the law of this Circuit. It did so, moreover, in an opinion that lacks a clear statement of either the claims raised by the plaintiffs or the issues on appeal. Indeed, the opinion contains no reference whatsoever to the constitutional claims at the core of this case, and a casual reader of the opinion could be excused for wondering whether A LEARNING DISABILITY [emphasis added] played at least as much a role in this case as the alleged racial discrimination. This perfunctory disposition rests uneasily with the weighty issues presented by this appeal." [l]eagle.com/decision/2008618530f3d881612
Citing a dissenting opinion by a stupid justice is completely consistent with what you have done here.
******
DRJlaw: "The only facial characteristics involved are the overt racism and religious bigotry of the current president." Nice Jussie Smollett tactic.
@JD Ohio
Nice of you to breeze back in to reply nearly two weeks later.
I continue to disagree. Most of us here do. Deal with it.
I did not argue that Yates would have to make frivolous arguments to defend it. Yet again, quote me where I said that. You won't find it.
As to the OLC — no idea where you found a federal district court judge that supported the EO at the time that Yates as acting AG — I don't know how you practice law, but I make individualized judgments on my own, and don't do something simply because someone else declares that it is "legal." The OLC's determination does not suffice to demonstrate that Yates' judgment was unreasonable.
False. "My responsibility is to ensure that the position of the Department of Justice is not only legally defensible, but is informed by our best view of what the law is after consideration of all the facts…. At present, I am not convinced that the defense of the Executive Order is consistent with these responsibilities nor am I convinced that the Executive Order is lawful. " Her best view of what the law was was that the order was unlawful. You'd apparently rather that the AG operated under a slipshod view of what the law was. That's on you.
This speaks for itself on so many levels, so I'll let it do so.
Actually I was quoting from a dissenting opinion that cited a MAJORITY opinion by your blessed masters; one that held that a State decision in an adjudication must be religiously neutral where (from the syllabus):
Factors which were relevant when protecting the interests of a bigoted Christian baker but mysteriously irrelevant when protecting the legislative action of a bigoted faux-Christian politician…
Things that make you go "Hmmmm…"
Yes, I admit it. I paid Trump to be a fantastically public and overt racist. Paid him and the hundreds of media outlets that have reported on this attribute (for decades). Don't make me turn my awesome power to manipulate time and your reality against you as well.
I would like to offer an apology.
I would like to apologize first to Mr. White, whose blog this is, because I said I wouldn't come back at his request and now I have. Mr. White would be perfectly within his rights to delete this post and pretend it never happened.
I would like to apologize because I mistakenly thought that English and Legalese was the same language. I was wrong. I am an engineer, not a lawyer. I do not speak the relevant lingo.
Words in legalese have definitions, fought over in court case after case. Sometimes each case clarifies the definition, and sometimes each case shatters the previous definition.
I will, however, staunchly defend my position that definitions in English are stable things, and that definitions in Legalese are subject to the whim of dozens of courts everywhere, are cheerily arguable by any lawyer, and so are as solid as a sand castle built upon a cracked bucket.
Dunno if that helps any, but I thought I should try.
Jon (fD)
Hi Jon (fD) –
No, it doesn't help. Definitions in regular English change too. The Gay Falcon is a 1941 movie starring one of my faves, George Sanders. I suspect that the title of that movie would mean something different if it were made today. Sometimes the change is much quicker. Something being "sick" has more meanings now than it did 10 years or so ago. Legalese changes from time to time, and those changes are recorded and notated in detail for anyone interested to see, as opposed to changes in everyday English which may never be written down in any authoritative source or noticed by people outside of the affected communities. You never did explain how your opinion related to the concept of hearsay, which has had the same general legal meaning for quite a while I'm not sure why you came back to comment, as your comment seems to just repeat your earlier stuff and is in no way responsive to the way the conversation has gone since you left. Best wishes.
Hey, if it works for the Cheshire Cat, why not for Jon?
If you're talking about "sick" in its meaning of "impressive," you're off by a few decades; that usage dates back to at least 1983.
Although I would agree with the overall argument: in a world where the word "literally" has become "used for emphasis while not being literally true" (i.e. the exact opposite of its literal meaning), I can't see how vernacular English is any more stable than legalese.
English dictionaries are descriptive, not prescriptive, which is to say they are attempts to capture the meanings of words as they are used and not prescriptive definitions of what meanings they must be given.
Why does strike mean "a batter's unsuccessful attempt to hit a pitched ball.", "the horizontal or compass direction of a stratum, fault, or other geological feature.", "a refusal to work organized by a body of employees as a form of protest", "to take down a tent, sail, flag, or theatrical scenery", "to cancel, remove, or cross out" depending on context? Your claim that words have fixed meanings in English strikes me pink.
"spam" used to only mean a particular brand of tinned meat product. Now it almost always referred to unwanted and unsolicited communications.
"troll" used to be fictional man-eaters, now refers to real creatures best not to feed.
"aggravate" used to only mean "to make heavy or worse" but now included the sense of "to irritate or exasperate"
"nonplussed" originally mean to be so perplexed that one could not continue, but in the twentieth century took on the opposite sense of being unphased. Like "literally" the word did a 180 degree turn. "sanction" ("to approve" or "to impose a penalty on"); "terrific" ("imposing terror" or "great"); "awful" ("inspiring awe" or "bad") — these words have be subjected to serious semantic shift over the years.
"nostalgia" in the 1600s was homesickness of soldiers removed from their homes to go on campaign. Now it seems to exclusively refer to a longing for the state of things now temporally rather than spatially removed.
Using "hopefully" as a stand in for "it is to be hoped" rather than "in a hopeful manner" is a new sense, bitterly contested by writer Sir Kingsley Amis as late as 1997. In 2012, the Associate Press changed its style guidelines to allow writers to start a sentence with "hopefully" to mean "I am hopeful that something will happen."
Cribbed from, often verbatim, from:
io9 gizmodo com /trying-to-stop-words-from-changing-their-meanings-is-l-1693903255
io9 gizmodo com /10-grammar-mistakes-people-love-to-correct-that-arent-1646176479
io9 gizmodo com /trying-to-stop-words-from-changing-their-meanings-is-l-1693903255
www dailywritingtips com /5-words-caught-in-semantic-drift/
en oxforddictionaries com /definition/strike
Also: English and what Jon (fD) calls "Legalese" are quite obviously the same language; the latter is a jargon within the former.
As with any jargon, trying to interpret a technical document by assuming that words used in their technical sense can be read using vernacular definitions and retain their intended meaning is only going to result in confusion and frustration for all involved.
I would think an engineer would understand that conflating technical jargon and the vernacular usage of the same words will result in confusion, as engineering is, itself, a jargon-laden profession.
I suppose I should address some of these remarks, so here goes.
At the moment, I’m going to focus on one question, that being “Is ‘legalese’ a technical jargon or is it a separate language”?
I think it is a separate language, and here’s why:
First, I shall freely admit that, in English, the boundaries between a jargon, a dialect, and a distinct language are not well-defined*. For example, there is Frisian and English, two languages that are considered distinct yet have a great deal of mutual comprehensibility. There are Scandinavian languages (excepting Finnish) that are considered entirely distinct yet are, to some degree, mutually comprehensible.
I also give the example of “High German”, and “Swiss German”, that are both considered the same language but have distinctly different vocabularies and pronounciation.
All that is just showing, once again, definitions are unclear.
Second, a jargon adds definitions to words. As has been pointed out, words in English can have many meanings, some obsolete, some current. A jargon will add another definition, or several, either in a way of trying to be specific or a shorthand for something otherwise lengthy and complex. But it will not remove the existing definitions.
When I went looking for a definition of hearsay, I found what I thought was understandable and accurate, only to be told in no uncertain terms that was NOT the definition, that word meant something entirely different, and my efforts to find out what it meant were roundly mocked. I wonder what the people whose website I found think.
Jargons add definitions. Legalese apparently removes definitions. Therefore I hold it is not a jargon, as English with bonuses, and is a distinctly separate language.
Third, as has also been pointed out, the languages are constructed differently. In English, meanings of words come about through popular use, misuse, abuse, and are occasionally documented, while the meanings of words in legalese are dictated, by courts or law-makers, and excruciatingly documented in detail. This fundamental difference in construction is a fundamental difference in concept and execution, and thus is not merely technical language added to English.
That is why I think what I think. You are welcome to disagree.
Jon (fD)
* As an aside, another fundamental difference is that legalese goes to great lengths to establish sharp distinctions. English doesn’t. I believe this adds to my contention that they are different languages.
Hi Jon – your original point was "We're not speaking English here. We're speaking legalese, which not only isn't English, but also in which the very definitions of the words change with the weather." Now you say that it is English that changes in fits and starts, maybe documented and maybe not, while changes in legalese are carefully and exhaustively documented by those with the authority to make such changes. These two claims seem to me to be in tension.
I will attempt to resolve that tension.
I’m speaking English here. I do not know how to speak legalese very well – many people have told me so, and generally I concur.
Perhaps “the weather” is a poor metaphor*.
Definitions in legalese are created by fiat.
Someone** writes down ‘this is what that word means’, and that’s it. Or you appeal to another court, and who knows, perhaps it’ll mean something else once the appeals court is done with it, and perhaps it’ll be something entirely different from the pen of Justice Thomas. Whatever happens will be extensively documented, but that doesn’t change the fact that the definition has whirled about. The text of an overruled ruling is, literally, not worth the paper it’s printed on. The careful documentation does not fix the definition in place – words can, and do, change by immediate order.
Definitions in English change by consensus.
The English language is (generally) not subject to the whims of someone** redefining it to suit themselves. English changes by consensus among the bulk of speakers, and does so gradually and fuzzily, usually picking up more meanings rather than losing any.
And as I believe another commenter put it, definitions in English are descriptive, “this is how people use this word” whereas in legalese definitions are prescriptive, “this is how you must use this word”.
Both languages change. Never meant to imply that neither did. In fact, I think most of the previous objections were my claim that the definition of one word in legalese can change. But they change differently, in part because they’re different languages.
Hope that helped,
Jon (fD)
* Although the cynic in me suggests that the weather is more predictable than the court system…
** By ‘someone’, I’m including authoritative bodies of people, e.g. ‘a court’ or ‘The 121st Congress’. Note that there are multiple authoritative bodies, and they frequently disagree with each other.
Jon,
Recently, I watched the movie 'The Hitman's Bodyguard'. I quite enjoyed it, except for the fact that, near the beginning, an eyewitness's direct testimony about events that happened to him and his family is dismissed as 'hearsay' by a defence lawyer, and the magistrates of the European Court of Justice (or maybe ICC) grudgingly accept this dismissal and essentially strike the victim's eyewitness testimony from the record. This in fact sets the entire plot of the movie up.
When I saw that, I was deeply irked, and also reminded of your exchange in the last thread. It is depictions such as in that movie which motivate the misapprehensions that led you to shove your foot so far down your esophagus that you're going to be shitting toenails for a month. And yet, rather than admit that you were wrong about the difference between 'hearsay' and 'eyewitness testimony', you not only double- and triple-downed, you trespassed so thoroughly upon Ken's patience that he asked you to leave.
And yet, now, you're back. I imagine keratin makes for some pretty good fiber, but I'd seriously consider taking your foot off the menu.
Jon(fD) you continue to be wrong.
English meanings and grammar don't change by consensus. Changes are made and adopted or not by people for a variety of criteria, but never by consensus. That's why we have jargon, slang, and regional dialects. Lift versus Elevator. Truck versus Lorry. Bonzer versus Scrumdidilyumptious. Grok versus Capiche.
Legal definitions begin with the most basic fact in the universe that you again and again ignore in this thread:YOU are not the decider. For in the law, we have agreed to let the judge decide. And the judges have decided that while any one man's judgement will be inconsistent with that of others, we can get better decisions in a framework of rules and precedent. And because memory is imperfect, the instruments of law are written.
So if two people have a dispute over the meaning of a contract, they can take it, a written document, to a judge who will use rules and precedent to decide which party has the better claim. Sometimes this boils down to the meaning of a single word or phrase, but if it does, the judge is the one who is going to decide that meaning. It would be helpful if the contract itself defined the term, or if state contract law provided an applicable definition, baring that if it was a term of art well known in law, finally there is the common meaning where dictionaries provided evidence of what that might be. (I'm not a lawyer, and this might not be all the sources or the correct order, but the main point is that it is the judge who decides and so the decision is consistent with the judgement of others (a great labor-saving device) there will be rules and precedent about how to got about the deciding.)
Legal definitions in contracts are prescriptive because that's what the parties agreed to in writing. Legal definitions in statutes are prescriptive (for that statute or wider if they so choose) because the legislature considered the statute to be too vague without those definitions applying to their newly crafted law. But definitions are themselves made of words so when there is an unclear case, a judge's first and best recourse is to look to the history of past rulings as to what the definitions mean.
I guess this explains why the traffic court judge wouldn't accept my contention that the police officer's testimony as to the speed I was driving was hearsay. I did explain to him that I had read recently that legal terms were infinitely malleable.
Well, here goes:
On consensus language:
Jargon is arguably a prescriptive language, but slang and dialects are local consensus, even if the slang be limited to one street gang. Expecting consensus to be worldwide is ridiculous, because then there wouldn’t be any difference between English, French, Russian, Chinese… Consensus can be quite local, and within those localities, real or virtual, the language is built and modified by consensus.
On definitions in law:
If there were one and only one infallible, immortal, and incorruptible Judge-o-Tronic machine making all the decisions, you wouldn’t have this problem*. But the problem is that there isn’t one judge, there are many judges**, and they frequently disagree, and every time a higher court disagrees with a lower court, pop goes the definition again. Keep in mind the possibility of rulings by judges either actively corrupt or merely incompetent. They're human, I concur.
To keep this timely, I thought I should supply an article from the Los Angeles Times. It has nothing to do with hearsay specifically, but it does have to do with judges (Justices, technically) disagreeing with each other and established law – some law established more than fifty years ago, so even ‘long-settled’ law might not be quite as settled as some might wish it to be.
https://www.latimes.com/opinion/op-ed/la-oe-chemerinsky-supreme-court-clarence-thomas-opinions-20190305-story.html
Jon (fD)
* There may be other reasons why you don’t want one of those.
** And many other law and rule-making establishments.
PS – Mgould, you would have been within your rights to appeal that judgment. The appeals court might have refused to accept it, but you could have. J.
Jon, Jon, Jon, you're like an architect who thinks they know more about buildings than an engineer, because the buildings they design are all so much more beautiful. His cousin, who has an art degree, even said the same thing!
Stop coming to conclusions about what words mean. I'm talking about both English, and Legal Jargon. You need a full decade of active repentance where you look up what things mean instead of making conclusions, before you start sharing them. And keep looking, because it will always mean an additional thing when some otherwise-unrelated esoteric condition is true.
Start by reading the Dictionary Act. And then consider: each of these definitions has been further refined by the Courts.
Or, just become a Gorsuch follower; he takes a fresh stab at the Original meaning of the words whenever he feels the text tingle.
As someone whose brother-in-law is an architect, I can tell you that he would find it highly offensive to hear somebody compare his profession to Jon. Most architects know more about the engineering behind their buildings than the average lay person, and perhaps most importantly, they know the limits of their knowledge in that field.
A more apt comparison would be to some non-architect, non-engineering, (hell, probably non-art degree-holder) who thinks he knows more about buildings than both architects and structural engineers because he used to build houses out of Lincoln Logs, common sense dictates it should scale up trivially, and all that nonsense about stress and strain is just the professional elites trying to make work for themselves and prevent the common man from having agency in designing their own skyscrapers.
Never underestimate a lawyer's capacity to overlook the limits of his knowledge, particularly when there are big dollar figures and potential national exposure involved. Doubly so when the case is outside their area of specialization–and defamation/First Amendment litigation is uncommon enough (for good reason) that there probably aren't that many specialists out there.
@IForgetMyName
Yeah, I was deep in the throes of hyperbole and I presumed that the word "actually" acted as a caveat restricting the statement to lawyers making intellectually honest statements.
Obviously lawyers also can be found saying things they don't actually believe, for values of "actually" that include all the different types of honesty at the same time.
Like when Gerry Spence claims to have "won" all his cases, even though he knows that his definition isn't used in English, or in Law. His claims are perfectly reasonable once explained, but they're not actually true as stated. For example, if I sued somebody for $10,000, and they represented by Gerry Spence and I received a judgment in my favor for $9,999.99 that would count as a Win to Gerry. Except, according to the Court, I won. Or if they charge you with murder and disturbing the peace, and you're acquitted of disturbing the peace; for him that is a win. For his client, not so much.
(That said, How To Argue And Win Every Time is a great book. It just isn't a book about how to win. It is rather a book about picking your battles. Pick your battles. But words might have external meaning.)
@ Cromulent Bloviator
Which is, of course, exactly what I did.
If you hearken back to the original post that started the whole kerfuffle, you will find that I was reading about hearsay and Mr. Dershowitz’s comments thereupon and Mr. White’s comments upon Mr. Dershowitz’s comments.
I thought I knew what hearsay was, but I wasn’t sure, so I went and looked up a definition*.
Then I posted that this is what I thought it meant, and “here’s a link to a definition”.
I got told off, by Mr. White himself, in no uncertain terms, that no, that I was wrong, that definition was wrong, everything I had said was wrong, that I had completely wasted my and everyone else’s time by looking up and trying to use an online definition in English of what was legalese and was basically an ignoramus**.
So you might understand why your suggestion to “look things up” will be seen with a somewhat jaundiced eye here, thank you very much.
Jon (fD)
* Some seem to think I hunted for hours to find a definition that agreed with me. I didn’t – it was about the first readily readable one that popped up in a Google search. The first two were incomprehensible without enabling bits of Javascript that I didn’t want to enable.
** I’ll grant the ignoramus bit.
Jon (fD):
In summarizing your interactions here, you might want to add that
A) The definition you provided was not a definition. It was a rule of thumb describing what the Hearsay rule did. It did not come close to actually defining Hearsay – it didn't even try.
B) The 'definition' you provided did not actually support your point. At all.
C) Our host then PROVIDED you with a clear definition. A very clear, concise, and correct definition, that actually entirely fit in with the random rule of thumb you'd found online, as the actual definition would rule the vast majority of statements made outside a court as being Hearsay – which is what your rule of thumb focused upon.
D) You then complained that his definition was wrong, and that the courts were wrong, despite the courts/legal professionals being the people who'd literally invented and defined the word, because you personally didn't like their definition of their own word. As part of this complaint, you claimed that as an engineer you felt words had a specific meaning. This, apparently, was meant to show that the specific meaning of the word, which Mr. White was kind enough to supply you, was faulty.
E) You were, eventually, asked to leave. You even agreed to leave. And then you were asked to spend a decade educating yourself, and just a few moments ago explained that you had, in fact, done just that since your first post a few days ago. And yet here you are, asking that we consider Mr. White, who is rather widely respected in his field, to be faulty in asking people to look up information sometimes, and conversely suggesting that you, who are an obvious and proven liar, should be considered trustworthy on the definition of legal terms.
Just… things you might want to mention, to provide an accurate view of what events have transpired.
Ken alive and well? I don't tweet/FB/watch TV much, so other than not seeing a new post in a while I'm in the dark.
Sometimes I wonder if I'm responding to what I actually wrote versus what people think I wrote. But since you thought I might mention your items, I shall do exactly that.
A) A functional definition "This is what this rule does" is a definition.
B) Citation needed on that one.
C) Yes, in legalese. This is how I learned that legalese is not English.
D) Not that it was currently wrong, just that it could change without notice, and then what was wrong yesterday could be right tomorrow. Unlikely, but possible.
E) And I apologized for that. Furthermore, I don't know that Cromulent Bloviator is Mr. White. Are they one and the same?
If you persist in thinking that I am a proven and obvious liar, then I doubt you will review what I actually wrote.
Jon (fD)
@Cromulent
That's certainly true, but that's not actually what I meant. There are a lot of lawyers who aren't intentionally dishonest, but sincerely overestimate their abilities. This is particularly striking among two groups. First, young lawyers just starting out, fresh out of law school with a broad academic knowledge of the law but minimal practical experience. Their main weakness is usually a general lack of appreciation for the mechanics of legal practice, particularly trial practice. The other group is the old, experienced specialists who are legitimately very competent at their fields of practice, and because of their (completely earned and justifiable) confidence in their own knowledge within those fields tend to overlook their limitations in other fields.
It's not that they want to deceive other people, or they're after money. In fact, most of the time when I encounter attorneys reaching beyond their grasp, it's not when they're trying to grab clients, but rather when they're engaged in advocacy of some sort (or plain ol' arguing with other attorneys.) Part of the problem is law school–it's very good at giving a broad overview of many areas of the law, but the law evolves, jurisdictions vary widely, and often the pragmatic realities of how the law is practiced means that the academic "truth" of a certain issue is at best irrelevant and at worst counterproductive. A little knowledge can be a dangerous thing, and I've learned that it's simply human nature not to know how much you don't know.
I don't doubt there are attorneys who remember a chapter of Con Law about the First Amendment and maybe a half chapter of Torts on defamation, think "That kid's clearly not a public figure, we don't have to prove actual malice, I think we've got this," and file the complaint before doing all the research.
Three weeks later, before WaPo lawyers showed up in court, before even the judge ruled on the three Atlanta-based lawyers speaking in court, the Sandmanns filed another suit against CNN for $275 million — $25 million more in compensatory damages and an identical demand for "not less than" $200 million in "punitive damages". Same Eastern District of Kentucky, Same five lawyers out of GA and KY, Different judges (for now).
At least there is no parallel construction to the odious paragraph 19 of the WaPo complaint, where the $250 million figure is tied to how much Jeff Bezos "the world's richest man" paid for the Washington Post. But the CNN Complaint does make the truth value of the President's claim that CNN is "fake news" an issue for discovery — deposition time! This is curious, if CNN is Fake News how does that help the lawsuit? Similarly it claims Nick Sandmann never sought the ear of the public, yet I thought he had volunteered to a school-based anti-abortion protest.
https www cincinnati com /story/news/2019/01/22/covington-catholic-why-march-life-isnt-like-most-field-trips-dicier-proposition-today-no-vacation/2643814002/
If only.
I do. And I have. Have you? Because you've picked right up from where you left off, repeating the very same behavior.
Echoing some of my views on the Sandmann cases: https slate com /news-and-politics/2019/03/nicholas-sandmann-covington-defamation-cnn-washington-post-maga.html
…
…
…
…
@Ken,
Are you OK?
I'm worried that AD might have buried you in a slew of lawsuits…
. .. . .. — ….
FRCP 42(a) gives the court authority to recognize that cases joined by "common question of law or fact" (for example, is Sandmann a public figure? Was his reputation damaged to the extent of $125 million? Does he have the right to $525 million even if the facts and law are in his favor?) can be decided once instead of multiple times.
LR 40.1(b) for the Eastern District of Kentucky appears to allow such related cases to be assigned to the same judge upon motion by any party.
It seems to me that introducing evidence of a CNN interview would help WaPo weaken the "not a public figure" claim and both CNN and WaPo are helped if the total requested liabilty is seen as something to be capped and allocated by the court. Does anyone see a reason why CNN and WaPo would not want these cases heard by the same judge or even consolidated?
No. It was a poor simile.
@Ann,
"…No. It was a poor simile…."
:)
It's interesting how few folks know the difference…..or even what a simile is. BTW, have you noticed some of the online definitions of 'simile'? Wikipedia says: "…Similes are a form of metaphor that ….", which they most assuredly are not.
. .. . .. — ….
There's a report out today from the ADL on all the extremist murders in the U.S. in 2018, every one of which was committed by someone with ties to far-right extremist groups and/or ideology, many of whom targeted women, Jews, or Muslims for that reason. There were about fifty such incidents, apparently.
Every time I see something of this nature, or read about a shooting like the one in New Zealand, (or the one in Pittsburgh, or the one in Tallahassee), I think about when Randazza blamed (IIRC) Heather Heyer's murder on the fact that someone punched Richard Spencer that one time.
Or I'm reminded of the line in his brief for Andrew Anglin, where he says, in effect, "No reasonable Jewish person who was being bombarded with violently anti-semitic words and imagery by a swarm of online bigots who self-identified as neo-Nazis would experience it as a threat, lol. That shit is just too widespread and popular to take seriously."
Or I recall how he said that he hoped to see Infowars become even more mainstream, widespread and influential than it is.
Or I remember when he responded to an article about an all-female fortified village in Syria called Jar Win — which came to be as a means to protect its inhabitants from the real and imminent threat of kidnapping, rape, and sex slavery — by commenting on the hilarity of its name, because (according to Randazza) girls can't open jars.
Anyway. Just tripping down memory lane with myself and Randazza's regular public displays of mind-numbingly stupid and callous self-regard, I guess. Good times.
/off-topic.
@Albert —
The culture's appreciation for distinct rhetorical figures of speech is seemingly on the decline.
@Albert & @Ann:
A simile may not be a metaphor, but it is like a metaphor.
@Richard
I don't say this often, but lol.
I think that's an analogy, though. Per my understanding, similes and metaphors are both *figurative* comparisons — e.g., "Here I am/Rock you like a hurricane," etc.
Maybe I made that rule up because that's just how oppositional I am. But I believe there's something to it.
Ann: I don't know that your definition is RIGHT, per se, but "A simile is like a metaphor" does not strike me as being a simile. It might be, on some technical ground somewhere, but I doubt you'd find all that many people willing to die on that hill – unless you're looking at the sort of people who feel VERY STRONGLY about things like oxford commas, or how many spaces should follow a period, or the like.
…and yeah. It seemed like light and hope would return when Clark left, then Randazza came to visit. Alas.
@Richard,
:)
. .. . .. — ….
@Ann: I wouldn't even call "a simile is like a metaphor" an analogy; it's a simple comparison.
That said, overanalysis is the death of humour.
C'mon Ken, comment on Devin Nunes' Twitter lawsuit. Yo know you want to, it has 'taint' in it.
http://www.msnbc.com/rachel-maddow-show/why-devin-nunes-lawsuit-against-twitter-such-bad-idea
Posting here because comments are closed on the "Is it RICO?" post.
College admissions scandal. Is it RICO?
It certainly sounds like Singer was being charged under RICO but IANAL and this blog is fairly consistent in its "it is never RICO" messaging. (Also currently amused at the class action suits being all "the universities are liable under California state law for false representations about the fairness and reliability of their admissions processes" which, really?)
Full agreement with Ann and guestposter. Randazza should not be judged based on whom he defends in a court of law, as some have attempted to do, but on whom he defends in the court of public opinion.
We can judge him however we want.
https://www.huffpost.com/entry/asset-code-id5c756897360000ce176b018c-typeimageasset-code_n_5c7ff88de4b020b54d814e44
https://www.huffpost.com/entry/marc-randazza-alex-jones-connecticut-judge_n_5c919bd6e4b0dbf58e459cf5
Attorney Marc Randazza Is Too Unethical To Represent Alex Jones lol
After so long with no Popehat blog posts, the title of this post becomes hilarious. Checking Popehat daily to see if there's anything new, apparently Alan Dershowitz has been lying to me for 79 days straight!
@Austin:
98 days, if you count the previous post.
One would have thought there would have been a post on Avenatti's misadventures.
@Austin –
I've been doing the same thing for a while now. It amuses me to no end.
Ken before you go liking more comments from Trump defenders clinging to the Barr letter I hope you read it closely yourself… Barr says
First – you cannot obstruct justice if you are not covering up a crime?
Then – the letter says "did not find that the Trump campaign conspired or coordinated in these efforts" that's it? Not directly linked to the troll farms?
Do not believe the cover up and encouraging them by taking their side gives them ammo to in coming months keep blocking the report. The DOJ today said Barr is not planning to send the report to Congress either, the NYT quotes them as Barr is creating ANOTHER summary!
Get in front of this and listen to SethAbramson for once.
I definitely need a post explaining why Avenatti got arrested.
Instead of what a pony at pancake house told me, which is that he was just negotiating a tort settlement that presumtively involved an NDA.
You all should listen to the podcast "All The President's Lawyers." Ken has expressed quite a lot of opinions on Michael Avenatti there, and in fact describes a confrontation with Avenatti over the phone about some tweets Ken had made. Good stuff! Avenatti told Ken he is a nobody, apparently.
@MGould
My problem with a podcast is that I don't allow unscreened multimedia to enter my life.
Timothy Leary said in the 80s; who controls your screens, controls your mind. I agree with that. And I think that audio is as dangerous in that regard as video.
Text is much less dangerous, because it is easier to scan it and find out generally what the information is, without actually dumping the details into your brain. With audio and video that isn't realistic, because the brain processes that information much more easily.
So I'd want to scan a transcript before listening. And golly, if I had a transcript I can guarantee you I would never listen to the podcast. And podcasts aren't created for you to listen to; they're created as a vehicle for advertising. The transcript has little to no advertising value. Perhaps even negative value, because there are those among us who understand these concerns, but they merely prefer the transcript; if it isn't there, they'll listen. So there is rarely a transcript.
Also, I don't think general comments on the person would be useful for people wanting to understand the legal issues around this latest appearance in the news.
So for now, I'm carefully considering everything I know about the subject; that being what the pony told me.
Avenatti has a point about Ken, though; Avenatti is a household name. "Avenatti, isn't he that porn lawyer? The bald one?" Almost everybody in the country knows about him. Who knows who Ken White is? Lawyers, nerds, and Prenda enthusiasts.
@Cromulent Bloviator:
I am far less skeptical about podcast advertising and "dumping details" into my brain than you are, but the reason I'm not following AtPL is otherwise the same as yours: no transcripts.
First, to process information aurally, I basically have to shut down all other lingual inputs. If I'm listening to someone speak, I can't be reading, or contemplating, or making decisions (e.g. driving), or really doing anything else, if that "anything else" isn't 100% reflexive and so won't take precedence over what I'm hearing. So podcasts for me are a constant, frustrating process of listening for three minutes, getting carried off on a mental tangent (or encountering traffic, or receiving an urgent e-mail, or or or), and then realizing that I've missed something that was said and having to rewind it.
Second, my aural comprehension, frankly, sucks. Nothing wrong with my ears; this is a processing issue. I'm the type of person who puts subtitles on when watching TV or movies, because otherwise, I'm going to miss something that was said, and have to re-watch that same clip over and over until my brain finally manages to string the phonemes together into a comprehensible sentence. With in-person conversation, I basically have to look at someone's lips in order to make sure I'm hearing them correctly, moreso if there's any other source of sound in the room (music or other conversations). The sounds are getting through, but I just can't understand them without further context.
Third, text is referenceable in a way that audio and video aren't. Sure, you can cue up a YouTube clip to a certain spot, but, if you have a transcript, someone can just press Ctrl-F and find the part you've quoted, and immediately see the context of that quote. Or you can put a bookmark in your book, put it down, and then, when you pick it up… What was happening just before this? I'll just read the last page. With audio, even if you mark down the point you want to return to (which is harder to do than text, and, due to not being searchable, harder to find if you don't mark down the time you left off), it's much more annoying to have to scan back the audio a minute or so and have it spoken back to you rather than flipping a page back, remembering what exactly happened on that page in a second or two, and then flipping forward.
Fourth, audio is so damned slow. I can read a page of text in my head in no more than 1/10 of the time that it would take me to read it aloud. I've heard people suggest that I should speed podcasts up if that's the problem, but see point #1 and #2 for that: I'm already having a hard time keeping up. Accelerating the podcast isn't going to help with that, at all.
Finally, it's just unnecessary. Even if you follow the long-discredited rule that 93% of communication is non-verbal, that's referring to coded emotional information, relative status, subtext, and so forth. If I'm listening to a radio play, then that stuff provides lots of relevant information that I wouldn't get from just reading a transcript. In a legal discussion, though, I'll miss a few jokes, and that's about it.
For appealing to someone's emotions, yes, audio/video is absolutely a better medium. But for simple communication of factual information, text is far superior, and having to consume that information in podcast form is an unjustifiably frustrating waste of my time.
And that's not even getting into accessibility issues for people who aren't quite so lucky as I am. I can consume information in podcast form (as frustrating as I find it), but many can't. Or could, if it was in their own language, but most automatic translators work on text, not on audio. Or they have sensory issues and have no easy way before listening of confirming that the podcast won't contain some sound that will give them an intense migraine.
I get that it costs money to have people transcribe your podcasts, and I get that the decision to spend that money belongs to KCRW and not to Ken. But, whoever is making the choice not to include transcripts, they're making it much more difficult to consume their product.
I take both of your points about the downside of podcasts. I wonder if the difficulties both of you have with podcasts extend to listening to and focusing on other people actually speaking to you in everyday life. Many of the objections you express about aural media in general would seem to apply to those situations as well.
For what it's worth, pretty much all the advertising iiib ATPL is just snippets of *other podcasts* in the KCRW network. Much less oily than most youtube videos or other podcasts.
And the content is legally informative as well as entertaining.
@MGould:
While I can't speak for Bloviator, I can't imagine that most people try to insert advertising into conversation, or use conversation as attempted mind-control.
As for myself, I'll run down the list.
When I'm having a conversation in person, that person (generally; I can be distractible) has my visual attention in addition to my aural attention. My mind can sometimes wander, but with some effort, I can get myself to pay attention. In order to give my full attention to a podcast, I basically have to lie down and close my eyes, because my mind will find something visual or tactile to occupy it otherwise.
In person, I also have an additional stream of visual information to contextualize the phonemes I'm hearing and help interpret them as the correct words/phrases/sentences. I do sometimes have to ask other people to repeat themselves, because I didn't catch what they said. I hate (with the burning rage of a thousand suns) talking on the telephone, for exactly the reasons given (and don't get me started on teleconferences). There's at least more mental engagement when other people can hear what you say, but it's still horrible.
I generally don't find myself having to discuss my conversations with other people, so being able to reference exactly what was said isn't so much of a big deal. Losing track of what was originally being talked about is absolutely a thing, but, as far as I can tell, that seems to happen to everyone.
As for speed, I don't tend to notice it when I'm actually interacting with people, but I have noticed it on the rare occasions when I have recorded a conversation and played it back later (it's so slow). It think it might have something to do with the additional stream of visual information, or maybe just from being "in the moment" with the other person or people.
So, for myself, at least, in-person conversation, while problematic for some of the same reasons as a podcast, isn't nearly as bad, largely because in-person conversation is not just listening to the sounds of other people's voices.
I don't have any trouble understanding spoken communication.
I just think all that non-verbal stuff is the things getting in the way of the communication of ideas, and the ideas is all of my interest.
And I live in a world with an information glut. When I was younger, and information was expensive, I consumed it more readily. On the internet, the challenge isn't find information. The challenge is to filter the information you consume, and consume what has value.
Much of what Ken writes has value. But I wouldn't consume it in a podcast unless I actually had a real need for the data; simply being interested in his ideas isn't enough. Now, if instead of a podcast it was a catalog of informational videos arranged by topic, like little lectures, and they were either freely available or on youtube, then I'd be interested. To be a podcast, though, it will be in radio show format. It will be chatty. It will contain off-the-cuff blah-blah. It will likely have multiple participants, multiplying all that emotional gook and signaling that loads down the communication. And IMO debases it.
I would rather read the comments here; at least the signaling is more explicit, more transparent, and I can scan over the parts I'm not interested in. That said, I don't think the average reader here is even interested enough in the law to read Gorsuch's dissents, much less the decisions. Even many of the lawyers are too busy tweeting to read that stuff.
I'd be willing to listen to one (1) podcast about Prenda, because the saga is at the end after a very long, strange trip.
My point about the dangers of the format wasn't intended to be focused merely on advertising; it is all the signaling that I despise. Much of it is just the subconscious desire of the producers to represent their world view, or maintain the status quo. That includes all their opinions, received knowledge, stereotypes, fears, desires, expectations… if they have to write down what they say, they'll be forced to choose most of those that they include.
I'm a law-and-order liberal, who believes the Vietnam War was a criminal act, the Korean War was an important defense of Freedom, and that it is better to drop a bomb from a drone than let non-State combatants run free to plan their crimes. Guantanamo should have been illegal for other reasons, but based on the SCOTUS ruling I say that since it is property of Cuba and we exercise continuing military jurisdiction, so our continued presence violates the UN Charter. I believe it is perfectly legal to indict a sitting President. I believe that the Constitution's lack of clear verbage on the President's pardon rights doesn't mean they're as expansive as the sky, but that instead it means that some pardon powers exist, and whatever the details are it is only the President that exercises the power; Congress should have no trouble clarifying the details. I believe that Chevron deference is an affront to Congress, and an insult to the text of the Constitution. I believe that the 4th Amendment doesn't allow for the police to conduct any searches at all, including pat-downs or vehicle searches, without a warrant. I believe that warrantless "stingray" searches by the police violate federal criminal law, and that without a warrant, there can be no reasonable expectation that the act was a legitimate part of police duties. I believe that most cases of police discharging their firearms are both unlawful, and cowardly. I believe that the right of unions is important, but that it is a corrupt practice under existing law for governments to negotiate contract terms with unions that go anywhere at all beyond pay and workplace conditions. I also think the top tax rate should be over 50%, and that the total taxes collected from businesses and individuals should be close to even. I also believe in Capitalism, and I believe that Capitalism is a system described by Adam Smith whereby the Government peers over the shoulders of industry and regulates so as to ensure a level playing field for new entrants to a market; that Capitalism is at its core the skeptical regulation of entrenched powers to stop them from skewing the playing field. I believe that violence does not solve personal problems, mostly because the sword duel has been banished. I believe that piracy (on the high seas) and terrorism should be actively combated by issuing Letters of Marque, as the Constitution wisely allows for. I believe that the Vice President has the Constitutional right to call a 50+1 vote in the Senate at any time. I believe that when Congress makes reference to the War Powers Act in a military funding authorization bill, that counts as a Declaration of War as per the War Powers Act, and that therefore the United States is at war with a variety of non-State actors for nearly 20 years now. So while I consider the existence of the base at Guantanamo to be a war crime against Cuba, I consider it obvious that all the accused enemy combatants held there to be detained lawfully.
So there are basically only like 5 people in the country who I think are Virtuous enough to be signaling it; and I presume they think the same of my views. The signaling has negative value, it prevents people from finding the expansive common ground that exists on an issue-by-issue basis. It causes them to herd themselves into supposed opinions about the issues above that they received from they-don't-even-know-who that they thought at the time were Virtuous and On The Same Team. I'm almost as disgusted by people's willingness to consume audio/video media in this sort of intellectual environment as I am with the quality of the content in the first place.
But what I haven't received very many opinions on is; what is the line between negotiating a non-disclosure agreement, and extortion, in the context of Avenatti? When I look at his smiling face, I think of pancakes. I think of a lawyer I once knew, the smell of her hair as she jumps up onto the coffee table shouting at some poor disgruntled schmuck: "Say PONY! Say PONY! What are you EMBARRASSED?! You're not MAN ENOUGH to say the word PONY?! How about PANCAKES? Can you say PANCAKES?" And I feel a strong need to know; When exactly is a lawyer allowed to ask for money? This is like, some sort of impossible question that no sane lawyer will ever give a straight answer to. All I can do is shout at the sky, and wish for a pony.
How does the execution of someone who has not been convicted through due process of law conflate with you being a "law-and-order" liberal? I mean, killing someone who is attacking you is one thing, or someone who is resisting lawful arrest with deadly force, but when you're launching a drone strike, there's no immediate danger that justifies the use of lethal force.
Add to that the non-combatant collateral damage that often comes with drone strikes, and … yeah, I don't know how countenancing the killing of people solely on the government's hand-on-Bible say-so that these are bad people who deserve to be killed, is a "law-and-order" stance.
I can't find that one in the Constitution. Closest I can find is "Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behavior, and, with the Concurrence of two thirds, expel a member. " and I can't think of any contextually-appropriate definition of "Proceedings" that wouldn't include calling a vote.
By that logic, aren't the detainees at Guantanamo (et al) prisoners of war, and entitled to all of the rights thereof?
And, if not, if they're accused criminals apprehended abroad, aren't they entitled to the same rights as any other person arrested by the United States (legal defense, speedy trial, etc.)?
Either way, I can't see how they could be considered "detained lawfully." The Gitmo detainees have been given neither the rights of an apprehended criminal, nor the rights of a prisoner of war.
And, again, I don't see how "depriving someone of liberty without due process of law" (i.e. detaining them indefinitely without any expectation of ever putting them on trial to ascertain their guilt) is something a proponent of "law-and-order" would support.
Chris (Feb 2): "Had you bothered to Google before making this "almost certain" claim, or hell, even kept up with the story as it was unfolding, you would know that the FISA court was informed of exactly this. The FBI told the court that the dossier was compiled by Christopher Steele and that they "speculated" it was funded by someone with a political grudge against Trump."
Since you made your comment about the FISA application, I have had time to read all 4 warrants and all of Carter Page's testimony as well as part of Bruce Ohr's testimony and part of Lisa Page's testimony. The FISA warrant is 100% not 99%, 100% bogus. A somewhat significant fact you have wrong is that Steele's name was not mentioned in the application.
Moreover, the FISA application slyly and deceptively stated that: "The identified U.S. person (Gleen Simpson) hired Source#1 [Steele]to conduct this research. The identified U.S. person never advised Source #1 as to the motivation behind the research into Candidate #l's [[Trump] ties to Russia. The FBI speculates that the identified U.S. person was likely looking for information that could be used to discredit Candidate #l's campaign." Didn't mention that Steele was "desperate to defeat Trump" or that Steele hadn't been to Russia since 2009.
The FISA application falsely (based on fake Steele Dossier) claimed that Page (an unpaid volunteer on an informal advisory committee) had met with Igor Sechin, the President of Rosneft oil and Igor Diveykin (a senior police official) to collude with the Russians. Page had never in his life met with either person and had never even heard of Diveykin. He stated so on numerous occasions, calling the Dossier "complete garbage", including in Congressional testimony. If, Page had been lying, Mueller who prosecutes perjury at the drop of a hat, would have charged Page. It is crystal clear that Page told the truth and that the Dossier was, in fact, garbage.
Moreover, Lanny Davis, Michael Cohen's lawyer (and past Clinton lawyer), stated that the 14 facts alleged by Steele in the Dossier were all wrong, including that Cohen had been to Prague. ttps://www.realclearpolitics.com/video/2018/08/22/lanny_davis_so_called_dossier_false_cohen_never_prague.html#
Of course, who signed off on this corrupt application, none other than our old unethical friend Sally Yates. Moreover, although Page repeatedly stated how bogus the Dossier was, the FBI waited until about 6 months later before it even questioned him. (He was questioned 4 times in March 2017 and didn't even bring a lawyer, the Dossier's charges were so ridiculous.) Further, this bogus piece of garbage was renewed 3 times.
So, having taken your advice, I looked closely, and the FISA Application is about as bad a violation of civil liberties as can be imagined and is further a corrupt attempt by Obama administration to spy on a Presidential campaign.