Category: Justice

Corrupt Partisan Pig-Felching Bastards

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In what is a continuation of Chief Justice John Roberts’ life long quest to prevent Black people from voting, the Supreme Court has upheld Arizona’s voter suppression laws and further gutted the voting rights act.

This is a nakedly partisan and nakedly corrupt decision:

Conservatives have effectively accomplished their long-term goal of blotting the 15th Amendment out of the Constitution with a bottle of Wite-Out®. This has been the conservative project (whether those conservatives have called themselves “Democrats” or “Republicans” depends on the era) since the 15th Amendment was ratified in 1870.

The 15th Amendment, of course, prohibits both state and federal governments from denying the right to vote on the basis of race. Conservatives were shockingly effective at reading this amendment out of the Constitution for the first hundred years after its ratification. The amendment was so bad at stopping conservative racism that we needed a whole different rule, the 24th Amendment, which was ratified in 1964, to outlaw the poll tax, which had become a favorite way for white people to deny minority voting rights.

………

Yesterday, in a Supreme Court case called Brnovich v. Democratic National Committee, Justice Samuel Alito told conservatives how to defeat the Voting Rights Act, once and for all. White supremacists don’t have to storm the Capitol to hoard political power anymore. They just have to follow Alito’s instructions.

The issue in the case was pretty straightforward, as these things go. Arizona had enacted two voter restrictions. One outlawed “ballot harvesting”—which is the scary Republican label for, say, an older person giving their mail-in ballot to somebody else to walk it to the drop-off location. The other allowed the state to discard votes accidentally submitted at the wrong polling place.

Both of these laws had the effect of suppressing minority voter participation. That’s not a conjecture I’m making based on my apparent Black superpower of understanding what white people are trying to do. That’s an empirical fact, one we know from the data we have from Arizona elections, and that was acknowledged by the Arizona defenders of the laws and the Supreme Court itself. These laws disproportionately affected voters of color, period.

But the 6-3 conservative majority on the Supreme Court said that the racial bigotry inherent in these laws is fine, because they concluded it’s not that much bigotry. In the situation where ballots are cast in the wrong precinct, Alito noted that 1 percent of Hispanic, African American, and Native American voters cast votes in the wrong precinct (votes that can now be completely discarded in Arizona), while .5 percent of white voters did. Alito says that this disparity is too small to matter for the Voting Rights Act.

………

Elena Kagan, joined by Stephen Breyer and Sonia Sotomayor, blasted Alito’s framing in a dissent that is already more well-known than Alito’s majority opinion. It’s worth reading in full, but this part is stellar:

And what is a “mere inconvenience” or “usual burden” anyway?… Consider a law banning the handing out of water to voters. No more than—or not even—an inconvenience when lines are short; but what of when they are, as in some neighborhoods, hours-long? The point here is that judges lack an objective way to decide which voting obstacles are “mere” and which are not, for all voters at all times.

Kagan’s mention of water was a clear reference to the current eruption of voter suppression laws, enacted by Republicans in Georgia and elsewhere. She was absolutely right to go there, because Alito’s awful logic will not stay in Arizona. Instead, it will give voter-suppression efforts (those already happening and those yet to come) a clear safe harbor to smuggle in all their bigotry.

Alito applies his new conception of the Voting Rights Act to laws restricting the “time, place, and manner” of voting. Alito then makes up a five-factor test to apply to these voter restrictions (spoiler alert: racists win), but the upshot is that, going forward, states that argue that their voter suppression efforts only restrict when people can vote, where they can vote, and what they have to do in order to vote can functionally ignore the Voting Rights Act. It won’t matter if those time, place, and manner restrictions have a disparate racial impact. It won’t even matter if those restrictions are done with the express intent of racial bias. The presumption that voter restriction is illegal if it is designed to exclude or suppress minority voters has been replaced by Alito’s new ruling that the state can impose restrictions that merely inconvenience voters of color on purpose.

………

This is what conservative justices have always been here to do. People think that the issue that unites conservative justices is hostility toward abortion or antipathy toward the LGBTQ community or a shared passion for corporate malfeasance. And sure, conservatives broadly share horrible views about all that stuff. But the thing that truly binds a Trump judge with a Bush judge with a Ronald Reagan judge, the thing that reaches out across time and space to put Roger Taney in bed with William Rehnquist and John Roberts is their rejection of Black voting rights and the laws and the precedents meant to protect them. The idea that the 15th Amendment prohibits laws that say “No N***** Votes” but nothing else is the consistent theme of conservative voting-rights decisions. Unless the law explicitly uses the n-word, conservatives are going to tell you that it’s a “race neutral” restriction on voting and turn to stone.

………

Conservatives will never stop trying to take away the right of nonwhite citizens to vote. That has been their unyielding position since the end of the Civil War. You can have a free and fair democracy, or you can have conservatives in control of the judiciary, but the history of this country says that you can’t have both.

The history of conservative jurisprudence on voting is to the ideals of the constitution what Ebola is to the concept of French kissing.

The packing of the Supreme Court over the past 4 years has been a disaster for the nation, and a clear and present danger for our freedoms.

Tease

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People are crowing about the arrest of Trump Organization CFO Allen Weisselberg for tax fraud.

A lot of people think that this is the beginning of the end for Trump, but that it just wishful thinking.  It is not even the end of the beginning.

I’ve seen this scenario too many times before.  The bad guys walk:

New York prosecutors on Thursday unveiled a 15-count indictment charging the Trump Organization and its finance chief, Allen Weisselberg, with a wide-ranging conspiracy to avoid paying taxes, launching the first criminal case resulting from a multiyear investigation into former President Donald Trump’s business affairs.

In a Manhattan courtroom, prosecutors described a 15-year-long tax-fraud scheme involving off-the-books payments to employees at the Trump Organization. Executives took perks such as car leases and Manhattan apartments without the company or the recipient paying taxes, prosecutors said.

………

“There’s no clearer example of a company that should be held to account,” said prosecutor Carey Dunne in court. “It’s not about politics.” He said the investigation was ongoing.

Mr. Weisselberg, appearing in handcuffs, pleaded not guilty. He was released pending trial, though he was required to surrender his passport after prosecutors said he was a flight risk. His lawyers said he would fight the charges.

The top charge for Mr. Weisselberg—grand larceny in the second degree—is a felony that, upon conviction, carries a maximum sentence of 15 years in prison. Mr. Weisselberg was charged with 15 counts. In addition to grand larceny, prosecutors charged him with scheme to defraud, conspiracy, four counts of criminal tax fraud and other crimes.

The Trump Organization, through its attorneys, also pleaded not guilty. The company was charged with 10 counts, including scheme to defraud, conspiracy and four counts of criminal tax fraud.

………

The charges could ratchet up the pressure on Mr. Weisselberg to turn on Mr. Trump, who wasn’t charged Thursday. Mr. Weisselberg has so far declined to cooperate, but some defendants change course when faced with the possibility of prison time, former prosecutors said.

He’s not going to flip.

………

Prosecutors would need to show three things to charge Mr. Trump: knowledge, intent and participation, said Daniel Horwitz, chairman of the white-collar defense and investigation practice at McLaughlin & Stern.

And they will not get that if Weisselberg does not flip.

………

A case solely focused on fringe benefits is unusual, former prosecutors said. Charging an individual or company for failure to pay taxes on employee benefits alone is rare, though such charges are used as part of larger cases.

Which is one reason why I think that we will not see anything reaching Trump.  The case, at least until the DA adds charges, is not going to put Trump in jail.

………

………

In a possible bid to escalate pressure on Mr. Weisselberg and other executives to cooperate, the indictment mentions—though doesn’t name—Mr. Weisselberg’s son, who paid $1,000 a month on one Trump Organization-owned apartment for seven years and then paid no rent on another Trump-owned apartment in 2018. The rental payments weren’t reported as income to tax authorities, prosecutors said. The Wall Street Journal has reported that his son, Barry Weisselberg, lived in Trump-owned apartments. A lawyer for Barry Weisselberg didn’t respond to a request for comment

This case is not a nothing-burger, but the chance that it will place Donald Trump appear to be quite small, though it does appear to be a threat to the Trump organization, as it is likely to make lenders skittish about extending additional credit.

The Solution to this Problem is Democratic Legitimacy

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Didier Reynders, the European Union’s justice minister is arguing that challenges to EU law on the basis of national law threaten to break up the organization.

That nations in the EU are taking these steps is no surprise.  The EU has no democratic legitimacy.

It has been, since its origins as the European Coal and Steel Community, a profoundly undemocratic institution.

The European Parliament is about as ineffective as the Roman Senate under Caligula,* and posesses far less power than said august Roman institution.

Ordinary voters still have a voice in their local government and in their local judiciary, while they have none (by explicit design) in the EU.

As such challenging EU dictum through the local courts is a logical, and likely popular, strategy, particularly in the face of German hegemony within the The European Commission:

The EU’s justice commissioner has vowed to fight back against a proliferation of legal challenges and rulings by member states that have attacked the supremacy of EU law, warning that they could destroy the union itself.

In an interview with the Financial Times, Didier Reynders said that this increased questioning of the primacy of EU law — and the right of the European Court of Justice to have the final word — created a “spillover effect” that had emboldened others to follow suit.

In a sign of the perceived threat, the European Commission this month launched legal proceedings against Germany in response to an explosive ruling by its constitutional court last year that the ECJ had acted beyond its competence in a case related to European Central Bank bond-buying.

This ruling is actually an artifact of German hegemony.  Bashing the lazy and profligate south has been a winning electoral strategy in Germany since the adoption of the Euro as a currency.

The next big legal challenge Brussels is bracing for is a decision by the Polish constitutional tribunal, which could come on July 13, on whether certain elements of the EU’s treaties are compatible with the constitution. The case, brought by Poland’s nationalist government, is regarded by legal experts as the most serious challenge yet to the EU’s legal order.

If the EU, and the Eurocrats, fail to realize that without political legitimacy through meaningful democratic processes these problems will only get worse.

Democracy is inconvenient, and a pain in the ass sometimes, but absent a muscular application of this concept to EU governance, the EU may cease to exist.

*The real history of Caligula appointing his favorite horse, Incitatus, to the Roman Senate is actually saner than is commonly represented. He threatened to appoint the horse to the Senate in order to demonstrate just how dysfunctional the body was.

It was a prank intended to humiliate the Senate.

From the Department of About F%$#ing Time

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The Department of Justice has sued Georgia over over its new racist voting laws. 

Personally, if evidence of a conspiracy to deprive citizens of their civil rights is found, and this is clearly fits the legal definition of a conspiracy, I’d like to see a criminal investigation with some of the principals subject to the risk of jail time:

Justice Department officials announced a federal lawsuit Friday against Georgia over new statewide voting restrictions that federal authorities allege purposefully discriminate against Black Americans, the first major action by the Biden administration to confront what it describes as efforts by Republican-led jurisdictions to limit election turnout.

The legal challenge takes aim at Georgia’s Election Integrity Act, which was passed in March by the state legislature and signed into law by Gov. Brian Kemp (R). The law imposes new limits on the use of absentee ballots, makes it a crime for outside groups to provide food and water to voters waiting at polling stations, and hands greater control over election administration to the legislature.

The 46-page federal court filing came as numerous GOP-majority state governments have been seeking to impose new voting restrictions in the wake of President Biden’s victory over Donald Trump last November. Trump has spent months waging a baseless effort to discredit the result, making false and unsubstantiated allegations of widespread voter fraud.

In Georgia, Black voters helped drive record turnout for the presidential election and handed the state to Biden, who became the first Democrat to win its electoral votes in 28 years. High levels of Black voter turnout also helped Democrats Raphael G. Warnock and Jon Ossoff sweep the U.S. Senate runoff elections in Georgia in January, ensuring full Democratic control of Congress.

Among other things, this lawsuit moves to bring Georgia under the preclearance provisions of the Voting Rights Act again, and this is a good thing.

Politicians should not be allowed to prevent people from voting because they vote against those politicians. 

As an aside, if you live in Georgia, register as a Republican, and vote for the Trump-nuts in their primary so as to make a chance of Democratic victory in the general election more likely.

An UNBELIEVABLY Appropriate Use of the KKK Act

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Various Biden campaigners have sued Texas terrorists who attempted to force their campaign bus off of the road in October of last year under the Klu Klux Klan act of 1871.

This seems about right:

Timothy Holloway clutched the wheel of a Biden-Harris campaign bus last October, swerving and dodging as one hostile car bearing a Trump flag after another tried to run him off a Texas highway.

“We were terrified,” Holloway said in a news release. “They were clearly trying to scare us and prevent us from arriving at our destination in peace.”

The tactic worked — the Biden campaign canceled the rest of the day’s events, saying it feared for the safety of campaign staffers, supporters and local political candidates. Some prominent Republicans cheered the effort by the self-proclaimed “Trump Train,” while President Donald Trump himself lauded their efforts, calling the drivers “patriots” who “did nothing wrong.”

Now, Holloway — along with a White House staffer, a former Texas lawmaker and a campaign volunteer — are suing several members of the caravan, accusing them of violating the Ku Klux Klan Act of 1871, which bars violent election intimidation, as well as local Texas laws. The group is also suing local law enforcement, claiming they failed to provide protection.

“Those on the bus feared injury or for their lives. All suffered lingering trauma in the days and months thereafter,” says one of a pair of federal lawsuits filed to the Western District of Texas court on Thursday. “The events of October 30 arose from a campaign of politically motivated intimidation.”

………

The case isn’t the only recent attempt to invoke the Ku Klux Klan Act against Trump supporters. In February, Rep. Bennie G. Thompson (D-Miss.), chairman of the House Homeland Security Committee, invoked the Klan Act in a lawsuit against Trump, Rudolph W. Giuliani and two extremist groups whose members are accused of participating in the insurrection. Thompson alleged that Trump and Giuliani violated the act by inciting the riots with false claims of a rigged election. The lawsuit is ongoing.

This was terrorism, pure and simple, and they should be treated at LEAST as severely as the Muslim losers that the FBI entraps in their sting operations.

Take their guns while the trials are going on, and seize their trucks, as they are the instruments of the crimes.

He Won’t See 22½ Months

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Derek Chauvin, who murdered George Floyd, and tried to do the same with many of the people he encountered, (in addition to being a tax cheat) was sentenced to 22½ for murdering George Floyd.

It’s nice that he got a sentence commensurate with his actions, which were callous and heinous, but I’m inclined to believe that he’s going to get preferential treatment in terms of prison assignments and by the parole board, so I don’t expect him to serve this in a maximum security prison, which the sentence would generally require, and I expect him to serve only a small portion of the actual sentence, rather than the ⅔ of the sentence generally required for parole:

Former Minneapolis police officer Derek Chauvin was sentenced Friday to 22 and a half years in prison for the murder of George Floyd.

Before Hennepin County Judge Peter Cahill announced the sentence inside a courtroom in the Hennepin County Government Center, members of members of Floyd’s family spoke about the impact of his murder. Floyd’s brother Terrence Floyd wept as he struggled to speak.

“I wanted to know from the man himself,” he said, addressing Chauvin. “Why? What were you thinking? What was going through your head when you had your knee on our brother’s neck?”

Philonise Floyd, another of Floyd’s brothers, wiped his eyes as he spoke and asked the judge for closure by giving Chauvin the harshest sentence possible.

………

“I want to give my condolences to the Floyd family,” Chauvin said in a brief statement before he was sentenced. His defense team has indicated they will appeal.

Cahill’s decision started with the state’s sentencing guidelines which recommend 12 and a half years in prison for a conviction on unintentional second-degree murder for someone with no criminal history.

The prosecution asked for 30 years, or twice the highest recommended sentence of 15 years.

Assistant Attorney General Matthew Frank reiterated the four aggravating factors the prosecution hoped would sway the judge to add years to Chauvin’s prison sentence — that Chauvin abused his position of authority, treated Floyd with particular cruelty, that the crime was seen by several children and that Chauvin knew the restraint of Floyd was dangerous.

I would add another reason for a harsh sentence:  This sort of behavior is ROUTINE for police officers in the United States, and thus the sentence needed to be severe in order to provide deterrence to other malefactors on police forces throughout the country.

Still, I expect him to be out into home confinement or some-such within 2 years.

The Schadenfreude Drought is Over

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Did you hear that the New York State appellate court just suspended Rudy Giuliani’s law license pending a more permanent disposition?

The court basically said that  his lies in court in support of Trump had been so egregious that a permanent disbarment should be on the menu:

Rudolph W. Giuliani, a former top federal prosecutor, New York City mayor and lawyer to a president, had his law license suspended after a New York court ruled on Thursday that he made “demonstrably false and misleading statements” while fighting the results of the 2020 election on behalf of Donald J. Trump.

The move was a humbling blow to a man who was once known as a law-and-order crusader and whose political ambitions and creative courtroom tactics against mob bosses turned him into a fixture on national television.

The New York State appellate court temporarily suspended Mr. Giuliani’s law license on the recommendation of a disciplinary committee after finding he had sought to mislead judges, lawmakers and the public as he helped shepherd Mr. Trump’s legal challenge to the election results. For months, Mr. Giuliani, who was Mr. Trump’s personal lawyer, had argued without merit that the vote had been rife with fraud and that voting machines had been rigged.

In its 33-page decision, the court said that Mr. Giuliani’s actions represented an “immediate threat” to the public and that he had “directly inflamed” the tensions that led to the Capitol riot in January.

“The seriousness of respondent’s uncontroverted misconduct cannot be overstated. This country is being torn apart by continued attacks on the legitimacy of the 2020 election and of our current president, Joseph R. Biden,” the decision read.

Courts and law bars hate ruling on things political, but this rat-f%$#ing is so pervasive, that they feel that they have no choice but to act.

Given that Giuliani has not actually practiced as a lawyer, except for his Trump related rat-f%$#ing, for years, it won’t effect him much financially, but it marks his exit from respectable society. 

Or at least, that’s what I hope.  After all Roy Cohn remained a fixture of society well after his “sell by” date.

About F%$#ing Time

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Finally, the courts are starting to rule against the modern-day slavery ring that is the NCAA.

It’s a fairly limited ruling, (9-0) simply stating that their limits of scholarships that the NCAA places on athletes are a violation of antitrust law, but it’s a start:

The Supreme Court unanimously ruled on Monday that the N.C.A.A. could not bar relatively modest payments to student-athletes, a decision that underscored the growing challenges to a college sports system that generates huge sums for schools but provides little or no compensation to the players.

The decision concerned only payments and other benefits related to education. But its logic suggested that the court may be open to a head-on challenge to the ban by the National Collegiate Athletic Association on paying athletes for their participation in sports that bring billions of dollars in revenue to American colleges and universities.

In a concurring opinion, Justice Brett M. Kavanaugh seemed to invite such a challenge.

“Nowhere else in America can businesses get away with agreeing not to pay their workers a fair market rate on the theory that their product is defined by not paying their workers a fair market rate,” Justice Kavanaugh wrote. “And under ordinary principles of antitrust law, it is not evident why college sports should be any different. The N.C.A.A. is not above the law.”

While this is good for athletes, it might be better for students in general, since the top schools openly collude on financial aid awards and tuition for students more generally, which should be targeted by antitrust authorities.

I think that this could be a precedent for this as well.

Interesting Tactic

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The state has sued Google, looking to have its search declared a public utility, which would make its favoring of its own products, including its ad markets unlawful.

This is an interesting way of doing things, but I have no idea how likely that it would successful:

Ohio Attorney General Dave Yost has filed a lawsuit asking a court to declare Google a public utility that should be regulated as such.

“Google uses its dominance of internet search to steer Ohioans to Google’s own products – that’s discriminatory and anti-competitive,” Yost said in a statement. “When you own the railroad or the electric company or the cellphone tower, you have to treat everyone the same and give everybody access.”

The lawsuit, filed in Delaware County Common Pleas Court, is believed to be the first of its kind, Yost’s office said.

………

Google disadvantages businesses and consumers by ranking its own services above competitors, Yost argues in the complaint. For example, if someone searches for a flight, Google Flights is the first result that pops up after advertisements, not other search sites such as Expedia and Travelocity.

The lawsuit does not seek monetary damages.

Even if they win, there will be years of appeals, but I would really like the State of Ohio to prevail.

A Good Start

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New York State Senate has just passed a wide ranging antitrust law which appears to have some serious teeth.

It eschews Robert Bork’s corrupt and hypocritical sham that ignored the whole history, and recast antitrust as something that only applied when consumers were immediately charged more money.

The changes in the law:

  • It lowers the presumption of market dominance from 80%+ to 40%.
  • It allows private plaintiffs to file under the law.
  • It makes “Unilateral power to set wages or contractual provisions that restrict workers from moving from their current employer to a competitor,” evidence of market dominance.
  • Dominant firms would forbidden from, predatory pricing.

There is a good primer here. 

This has not passed the state assembly yet, and it is not clear if “Ratfaced Andy” would sign the bill into law.

You are getting a lot of bullsh%$ about how this will harm small business, but that’s a lie.

Business who would be subject to this would people like Google, Apple, Amazon, Facebook, and dominant hospitals in a regions, who all need to be taken down for the good of society:

The New York state Senate passed legislation Monday making it easier for plaintiffs to win antimonopoly lawsuits, in the latest state-led effort to rein in large technology companies in the absence of action by Congress.

The antitrust bill was opposed by business groups and backed by unions and other critics of corporate giants such as Amazon.com Inc. and Alphabet Inc.’s Google. To become law, it must also pass the state assembly and be signed by the governor.

Monday’s 43-20 party line vote represented an incremental victory for advocates of tougher antitrust laws, who will seek to use it as a springboard to tougher laws in other states and at the federal level.

“We have a problem in this country. We have a problem that there is tremendous market power in very, very few hands,” said New York state Sen. Michael Gianaris, a Democrat and the bill’s lead sponsor, at a virtual press conference Monday. “Small startups and medium-sized businesses don’t have the opportunity to grow and innovate.”

………

Mr. Gianaris said he would continue fighting for the New York bill if it doesn’t become law during the state legislature’s current session, which ends this week. No further legislative days are scheduled this year, although more could be added.

If the bill isn’t passed this year it would have to be reintroduced next year. New York Gov. Andrew Cuomo’s office had no immediate comment.

Congress is considering changes to federal antitrust law, but those efforts haven’t advanced significantly this year as lawmakers focus on other priorities. States including Maryland and Florida have enacted new statutes aimed at powerful tech companies.

The proposed New York law takes broader aim. It would make it unlawful for a company “with a dominant position in the conduct of any business…to abuse that dominant position.” A company would generally be presumed dominant if it had a greater than 40% market share.

That is a more plaintiff-friendly standard than current U.S. antitrust laws at the federal and state level. Generally under those laws, a company is considered a monopoly if it controls two-thirds of a market, and its conduct isn’t considered anticompetitive unless it can be shown to harm consumers.

It’s very late in the session, so there is a good chance that it won’t pass this year, but it should be back next year.

This is Why Nothing Ever Changes

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One of the most depressing things about Washington, DC is how the establishment zealously defends their prerogatives and immunity, even if they are completely unjustified.

You can talk about Ford pardoning Nixon, GHW Bush pardoning his Iran Contra co-conspirators, and now the Biden Department of Justice insisting that the government should defend Donald Trump from a libel suit, because they need to, “Protect the institution.”

The case involves behavior prior to Trump’s time in office, and the statements in question were made in a personal capacity, but the institution must be preserved.

It stinks to high heaven:

The Justice Department is keeping up the previous administration’s fight to defend former president Donald Trump against a private defamation lawsuit brought by a woman who accused him of rape — an effort that President Joe Biden had criticized on the campaign trail.

On Monday, lawyers for the Justice Department as well as Trump’s personal legal team were due to file the next round of briefs — marking the first major deadline for the department under the new administration to weigh in. In the government’s latest brief, the Justice Department lawyers continued to press arguments that the lower court judge got it wrong when he concluded that Trump wasn’t shielded from being sued and was acting within the scope of his official duties as president when he accused Carroll of lying.

“When members of the White House media asked then-President Trump to respond to Ms. Carroll’s serious allegations of wrongdoing, their questions were posed to him in his capacity as President,” the Justice Department wrote in Monday’s reply brief. “Elected public officials can — and often must — address allegations regarding personal wrongdoing that inspire doubt about their suitability for office.”

Bullsh%$.

The Justice Department under Biden inherited numerous pending Trump-era legal fights, but Carroll’s case was one of the few that Biden had offered an opinion about when he was running for office. A turnover in the White House can create sticky situations for DOJ to navigate — the department historically defends the authority of the executive branch and senior administration officials in court, even as the politics of the party in power changes across presidents.

………

DOJ’s effort to intervene in the case last fall was widely criticized as a misuse of government resources on behalf of Trump. During a nationally televised town hall event in October, Biden had highlighted the Carroll case as an example of Trump trying to use the Justice Department as his “own law firm.”

“Can you remember any Republican president going out there, or former Democratic president, ’Go find that guy and prosecute him’? You ever hear that? Or: ‘By the way, I’m being sued because a woman’s accused me of rape. Represent me. Represent me.’ … What’s that all about? What is that about?” Biden said at the time.

Biden was right then, and he is wrong now.

………

Carroll sued Trump in state court in New York in November 2019. Trump had litigated the case for months using privately retained lawyers. In September, however, DOJ filed notice that it was moving the case to federal court and intended to take over Trump’s legal defense on behalf of the US government.

The department argued at the time that Trump was covered by a federal law that protects federal employees from being sued as individuals over actions they take as part of their work, known as the Westfall Act. When Trump, as president, denied Carroll’s allegation and accused her of making it up to sell copies of her book, the Justice Department argued that this law applied.

If DOJ succeeded, the US government would become the defendant instead of Trump as an individual. That would likely end the lawsuit, since the government is shielded by a legal principle known as “sovereign immunity” against a range of civil claims, including libel.

And now the Biden DoJ has decided to try to extend this decision.


In an opinion in late October, US District Judge Lewis Kaplan found that Trump wasn’t a government “employee” under the Westfall Act, which refers to “officers or employees of any federal agency.” Even if Trump was an “employee” within the meaning of that law, the judge wrote, his comments about Carroll didn’t fall within the scope of his official duties as president, so the law still wouldn’t cover his situation.

“A comment about government action, public policy, or even an election is categorically different than a comment about an alleged sexual assault that took place roughly twenty years before the president took office. And the public’s reasons for being interested in these comments are different as well,” Kaplan wrote in the opinion. “The president’s views on the former topics are interesting because they alert the public about what the government is up to. President Trump’s views on the plaintiff’s sexual assault allegation may be interesting to some, but they reveal nothing about the operation of government.”

………

Carroll’s lawyer Roberta Kaplan also issued a statement saying they were confident they’d win on appeal.

“It is horrific that Donald Trump raped E. Jean Carroll in a New York City department store many years ago. But it is truly shocking that the current Department of Justice would allow Donald Trump to get away with lying about it, thereby depriving our client of her day in court. The DOJ’s position is not only legally wrong, it is morally wrong since it would give federal officials free license to cover up private sexual misconduct by publicly brutalizing any woman who has the courage to come forward. Calling a woman you sexually assaulted a ‘liar,’ a ‘slut,’ or ‘not my type,’ as Donald Trump did here, is not the official act of an American president,” Kaplan said.

The Department of Justice is functioning as the personal lawyer for a government official, and not as a representative of the government, or the people here.

This is a disgrace.

So Not a Surprise

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Oregon State Represenstative Mike Nearman was indicted a month ago for allowing right wing terrorists entry into the state house.

Well, now we have video evidence that he he was coaching his constituents on the invasion of the Oregon Capitol.

While correlation is not causation, I wonder if perhaps there were  US representatives at the US Capitol who were similarly involved in the January 6 insurrection:

Just days before Rep. Mike Nearman helped armed protesters enter the closed Oregon Capitol building in December, endangering fellow lawmakers and Capitol employees, he coached constituents on the exact steps to get his help breaking in.

A video shows Nearman, a Republican from outside Independence, walking constituents through the step by step process of where to stand, how to text him and what help he would provide that would allow them to break the rules and get into the Capitol during the Dec. 21 special legislative session.

He does so with a wink and a nod, interspersing the instructions with disclaimers that he’s not giving out a real cell phone number (he is and it’s his number), that he knows nothing about the planned “Operation Hall Pass” and that nothing like that will actually happen.

In fact, exactly what he described did occur, prosecutors and investigators say. Protesters gathered outside the Capitol’s west entrance in obvious protest of the closure, Nearman left the House chambers where lawmakers were gathered doing state business and he walked out a Capitol entrance, leaving the open door hanging long enough for angry citizens to grab it and enter.

He can’t be alone in this.

Flip him, make him talk, and expose the whole rotten edifice.

Just Desserts

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The explosion of arbitration clauses in business contracts, and the Supreme Court’s enthusiastic embrace of keeping ordinary folks away from fair courts, has led to a situation where there is often no recourse for people cheated by businesses.

People have now created companies that automate the application for arbitration, completely overwhelming the ability of the companies, and the arbitrators, to process:

For years, AT&T worked tirelessly to erode its customers’ legal rights, using mouse print in its terms of service preventing consumers from participating in lawsuits against the company. Instead, customers were forced into binding arbitration, where arbitrators, chosen and paid by the companies under fire, unsurprisingly rule in favor of companies more often than not. Initially, the lower courts derided this anti-consumer behavior for what it was, noting that however brutally flawed the class action is, binding arbitration, at least the way we let companies designed it, in many ways made things worse.

But these lower court roadblocks quickly evaporated when the Supreme Court ruled in 2011 (Mobility v. Concepcion) that what AT&T was doing was perfectly OK. While lower courts saw this as an “unconscionable” abuse of consumer rights and the law, the Supreme Court bought into the ongoing myth that binding arbitration is a hyper-efficient, modern alternative to class actions. In reality, it shifted things to a form of binding arbitration that was costly, lopsided, and cumbersome for consumers, and less transparent for those used to visiting Pacer to dig up legal histories.

Fast forward to a few years ago, when a growing number of companies and services (like Fairshake) began streamlining the arbitration process, making it easier and less expensive for consumers (and yeah, class action lawyers). This shifted the balance of power back toward consumers, and starting in 2018 or so companies like Uber, AT&T and Comcast began to complain they were being swamped with arbitration feuds. Now, a year later, even giants like Amazon are being forced to take consumer complaints back to the courtroom, in part because a system they constructed to dodge accountability is no longer helping them do that:

………

In short, corporations (beginning with AT&T) spent the better part of the last decade fighting for an arbitration system that resulted in fewer payouts, fewer successful complaints, and less overall transparency. And while happy about that initially, the second the internet and technology shifted the balance of power in the other direction, they were eager to flee back to the devil they knew. It should be curious to see if other giants like AT&T also begin stripping binding arbitration out of their end user agreements, or if this is just a temporary setback on the path toward less accountability.

By way of example, Uber has had 12,500 requests for arbitration filed, and it has refused to start the process, which is now being litigated, and Amazon has thrown in the towel, and is allowing customers to file in court:

Amazon.com Inc. has stopped requiring customers to pursue claims in arbitration — rather than a court of law — after tens of thousands of people inundated the company with complaints that the Alexa digital assistant was improperly collecting voice recordings.

Amazon’s terms of service, which govern everything from buying products on the company’s web store to using its consumer gadgets, now lets customers file class-action suits against the company in state or federal court. Previously claimants had to enter arbitration as individuals. All cases must be filed in King County, Washington, where Amazon is based, according to rules that were last updated on May 3.

The change follows the filing of some 75,000 Alexa-related arbitration claims — almost entirely from people represented by Chicago law firm Keller Lenkner LLC — in the last 16 months. The cases likely added up to tens of millions of dollars in filing fees payable by Amazon, according to the Wall Street Journal, which reported the move earlier Tuesday.

Companies have created a biased process, and gone as far as possible to convince any litigant that this process is completely unfair so as to discourage filing.

Someone made it as simple as going to a web site, and clicking, “I agree,” and now they are clicking their asses off.

A Little Late, Aaron Schwartz is Dead

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The Supreme Court has finally shot down the overbroad interpretation of the Computer Fraud and Abuse Act (CFAA) that was used to prosecute Aaron Schwartz to death.

I’d say, “About f%$#ing time,” but it’s at least 7 years too late: 

The Supreme Court’s decision on Thursday in Van Buren v. United States provides the court’s first serious look at one of the most important criminal statutes involving computer-related crime, the federal Computer Fraud and Abuse Act. Justice Amy Coney Barrett’s opinion for a majority 0f six firmly rejected the broad reading of that statute that the Department of Justice has pressed in recent years.

Among other things, the CFAA criminalizes conduct that “exceeds authorized access” of a computer. Crucially, the statute defines that term as meaning “to access a computer with authorization and to use such access to obtain … information … that the accesser is not entitled so to obtain.” The question in Van Buren was whether users violate that statute by accessing information for improper purposes or instead whether users violate the statute only if they access information they were not entitled to obtain. In this case, for example, a Georgia police officer named Nathan Van Buren took a bribe to run a license-plate check. He was entitled to run license-plate checks, but not for illicit purposes. The lower courts upheld a conviction under the CFAA (because he was not entitled to check license-plate records for private purposes). The Supreme Court disagreed, adopting the narrower reading of the CFAA, under which it is a crime only if users access information they were not entitled to obtain.

To be clear: Van Buren should be in jail for a very long time, but his crime is violation of people’s civil rights, abuse of power, and taking bribes, not computer hacking.

And Amy Coney Barret gets to the heart of the matter, that the government’s position would literally make tens of millions of people unwitting felons:

Finally, Barrett turns to a topic that dominated the amicus filings and much of the time at oral argument: the “breathtaking amount of commonplace computer activity” that the Government’s reading would criminalize. For Barrett, that reality “underscores the implausibility of the Government’s interpretation,” which provides (in words Justice Elena Kagan coined in an earlier case) “extra icing on a cake already frosted.” Barrett notes that extending the statute to “every violation of a computer-use policy” would make criminals of “millions of otherwise law-abiding citizens,” offering examples of such trivial conduct as “embellishing on online-dating profile” and “using a pseudonym on Facebook” – activities that violate website use restrictions and thus would fall within the government’s understanding of the CFAA.

If there is a lesson from all of this, it is that prosecutors will take the most outrageous and extreme view of any criminal statue that they come across.

There needs to be some serious reform here.

Karen²

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Amy Cooper, who was caught on tape attempting to use the police to murder a bird watcher who noted that her dog needed to be leashed in that area of Central Park, has now sued her former employer, who fired her for the episode.

She is now claiming that she was fired because she was white.

My guess is that she has discovered that she is justifiably toxic and cannot get a new position anything near to what she used to do.

Consequences are a good thing, and they should apply to white people as well:

Amy Cooper, a white woman who last year became an international symbol of the routine racism that Black people face in their daily lives, is suing her former employer for firing her, arguing that she is a victim of racial discrimination.

Ms. Cooper makes the claim in a lawsuit filed this week against the investment firm Franklin Templeton, which terminated her employment a year ago after she was captured on a widely shared video in a tense encounter with a Black bird-watcher.

The lawsuit is the latest fallout from the May 2020 episode in Central Park, which touched off intense discussions about the history of white people making false, and sometimes life-threatening, accusations against Black people to the police.

………

She says in the suit, which was filed in federal court in Manhattan, that she “did not shout at Christian Cooper or call the police from Central Park on May 25, 2020, because she was a racist — she did these things because she was alone in the park and frightened to death.” She goes on to say that Mr. Cooper had selected her as a “target” and describes him as “overzealous.”

And the suit argues that Franklin Templeton did not thoroughly investigate the situation because of Ms. Cooper’s own race and gender, effectively reaching its decision to terminate her because she is a white woman.

They terminated you because are a self-important bigot, and people won’t hire you for the same reason.

The fact that you are a horrible human being who got caught on tape is karma, not oppression.

Pass the Popcorn

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Manhattan DA District Attorney Cyrus R. Vance Jr. has convened a criminal grand jury to investigate the Trump Organization.

I am not going to get my hopes up, if prominent Republicans went to jail for crimes, Karl Rove would be sharing a cell with Dick Cheney:

Manhattan’s district attorney has convened the grand jury that is expected to decide whether to indict former president Donald Trump, other executives at his company or the business itself, should prosecutors present the panel with criminal charges, according to two people familiar with the development.

………

The move indicates that District Attorney Cyrus R. Vance Jr.’s investigation of the former president and his business has reached an advanced stage after more than two years. It suggests, too, that Vance thinks he has found evidence of a crime — if not by Trump, by someone potentially close to him or by his company.

I so want to see Trump in the dock.

How Convenient

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Is anyone surprised that, the guards on duty when Jeffrey Epstein committed suicide in prison, will serve no jail time in a deal that they cut with prosecutors?

If they got jail time, maybe they might say something ……… inconvenient:

The two Bureau of Prisons workers tasked with guarding Jeffrey Epstein the night he killed himself in a New York jail have admitted they falsified records, but they will skirt any time behind bars under a deal with federal prosecutors, authorities said Friday.

The prison workers, Tova Noel and Michael Thomas, were accused of sleeping and browsing the internet instead of monitoring Epstein the night he took his own life in August 2019.

They were charged with lying on prison records to make it seem as though they had made required checks on the financier before he was found in his cell. New York City’s medical examiner ruled Epstein’s death a suicide.

As part of the deal with prosecutors, they will enter into a deferred prosecution agreement with the Justice Department and will serve no time behind bars, according to a letter from federal prosecutors that was filed in court papers Friday. Noel and Thomas would instead be subjected to supervised release, would be required to complete 100 hours of community service and would be required to fully cooperate with an ongoing probe by the Justice Department’s inspector general, it says.

I’m SO sure that the investigation of Epstein’s death is going to be scrupulous and extensive.

Pennsylvania Elections Today (Larry Krasner:1 — Philly PBA:0)

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Reformer Philadelphia District Attorney Larry Krasner, just destroyed his Police Union supported opponent by an almost 2:1 margin in today’s primary. 

This makes him almost certain to win the general election, as Republicans are severly out-numbered in Philadelphia, and their nominee is best known for having an ex-girl friend found dead in his bathtub: (Not kidding here)

Philadelphia District Attorney Larry Krasner easily defeated Democratic primary challenger Carlos Vega on Tuesday, taking a giant step toward winning a second term after campaigning on his record of criminal justice reform.

The Associated Press projected Krasner as the winner over Vega late Tuesday night. With 22% of the projected votes counted, Krasner held a wide advantage, 65% to 35%. In a city where Democrats outnumber Republicans seven to one, Krasner is now very likely to win November’s general election. He won the 2017 general election with 75% of the vote.

“Four years ago we promised reform and a focus on serious crime,” Krasner told supporters at a Center City hotel Tuesday night. “We kept those promises. And this time they put us back in office for what we have done. Not ideas, not promises, but realities.”

Krasner, 60, was a defense and civl rights lawyer for three decades, with a long record of suing the Philadelphia police before he was elected as a reformer in 2017. That victory helped propel him to the forefront of a new crop of progressive prosecutors across the country, a reform movement that was tested this election in Philadelphia by rising violent crime.

In his victory speech, Krasner said he had a mandate “from the people most affected by serious crime,” voters he suggested had rejected critics who blame the DA for shootings plaguing the city.“That mandate has rejected, definitively, a politics of fear that is built on falsehoods,” he said, calling for more funding for crime prevention. “We have to invest in all those things because we were robbed of them a long time ago. And what we are facing now is the consequences.

You have a mandate to push even harder, particularly against the Philadelphia police who still have a lot of Frank Rizzo in them.

Also, on the other side of the state, a DSA supported candidate scored an upset victory over the incumbent mayor.

Beating a two-term incumbent in a race centered on equity, state Rep. Ed Gainey won the Democratic primary on Tuesday, which should pave the way to becoming Pittsburgh’s first ever Black mayor.

Mr. Gainey was beating incumbent Mayor Bill Peduto 45 to 41 percent as of 11:11 p.m., with retired police officer Tony Moreno garnering 13 percent of the vote and local ride-share driver Michael Thompson registering 1 percent.

“I just called [Ed Gainey] and congratulated him on earning the Democratic endorsement for Mayor of the city of Pittsburgh. Wishing him well. Thank you Pittsburgh for the honor of being your Mayor these past 8 years. I will remain forever grateful,” Mr. Peduto tweeted shortly before 10:30 p.m.

Mr. Gainey, a 51-year-old state lawmaker representing a district stretching from Highland Park to Wilkinsburg, frequently asked, “For whom is Pittsburgh most livable?” — a question that he backed with facts from the many task forces and reports Mr. Peduto commissioned to identify problems. His message seemed to match the moment, and he thanked God, his wife, his children, his mother, his step-father and all of his campaign staff after Mr. Peduto conceded on Tuesday.

………

Mr. Gainey is almost certain to win in November, with no Republican filed to run in the primary and the city’s dark blue demographics making it unlikely a challenger could oust him — though it’s possible a Republican will have emerged from the write-ins.

Not a bad result, particularly given that Peduto tried to accuse Gainey of “Socialism”  toward the end of the campaign.

Nice to see the term shifting from a detriment to something positive.

Cowardly Prosecutor Bullsh%$

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Elizabeth City, NC DA Andrew Womble has announced that he will not be charging the officers who unleashed a fusillade of bullets and killed Andrew Brown in his car.

He has also announced that this was a serious investigation, and that he won’t be releasing the body cam footage, because, f%$# you.

This does not fill me with confidence in the integrity of the investigation:

A North Carolina district attorney on Tuesday said officers were justified in the fatal shooting of Andrew Brown Jr, a Black man, in April, and that the sheriff’s deputies who fired will not face charges for killing the 42-year-old father of seven.

Andrew Womble said Brown’s death “while tragic, was justified” because three deputies “reasonably” believed deadly force was necessary to protect themselves and others while serving a warrant for Brown’s arrest on felony drug charges.

………

Brown’s death certificate said he died as the result of a gunshot wound to the head. Brown’s family commissioned an independent autopsy which specified that he was shot five times, once to the back of his head.

Womble said he would not release body-camera video of the confrontation, for which Brown’s family and supporters have repeatedly called to ensure integrity in the investigation of his death.

If the body cam footage were that clear, they would be streaming it on YouTube now.

They are covering it up because they have something to cover up.