Friday, February 26, 2021

What the new rioter charges may mean

Shortly after January 6, the first charges were brought against the Capitol rioters. Those charges tended to be of the minor, misdemeanor variety. At the time, I blogged the following:

“I’ve read many comments decrying the fact that some of the most egregious offenders have only been charged with minor infractions. At this stage in the investigation, prosecutors are simply assembling the group of people who are involved in illegal activity. As more facts are received and evaluated, more charges will follow, especially for those engaged in the most abhorrent activity. Complicating their work is the fact that there is a host of charges that may come into play, ranging from murder, sedition, criminal conspiracy and RICO to the more mundane illegal entry.”

Within the last couple of weeks, additional charges have now been levied against many of these people and additional defendants are regularly being identified. If you are following developments on a regular basis, some charging decisions do not appear to make sense. Why, for example, are two people who seem to have acted in a similar manner facing different charges?

The unsatisfying answer is that the charging process is not going to make sense, at least in the short term. From the outside, we view criminal matters linearly. We see it as an orderly process, beginning with the criminal act and ending with the conviction or acquittal. Prosecutors, especially in a complex case, approach it, well, backwards. Let me illustrate.

The Capitol invasion is a highly complex case involving hundreds of individuals and affiliated groups. Some of those involved were simply caught up in the moment. Others had distinctly nefarious motives. The goal of the prosecution, when all is said and done, is to see to it that appropriate justice is meted out to everybody. In order to accomplish this goal, prosecutors need to work backwards from the goal to see how various charges, plea agreements, agreements to testify against others, and trials will accomplish those ends. Each individual defendant plays a part in this matrix.

Back to the initial question: why are similar people not charged the same? A lot of the answer often comes down to an individual’s value to the prosecution in related cases. Take two people who have done similar things and have a similar criminal background (if any). One of them is willing to provide information or testify about what he observed or knows. The other person is not. The cooperator will be charged with misdemeanors so that his plea agreement will result in a more lenient sentence. The non-cooperator will be charged with a felony and suffer greater consequences.

My example is, of course, a tremendous oversimplification, and other factors come into play as well. It does, however, give you a little insight into the variables that prosecutors weigh.

Wednesday, February 24, 2021

The “it’s Trump’s fault” defense to January 6

One of the most iconic pictures of the Capitol assault is of the “shaman” in full regalia, the visual equivalent of the running of the bulls on steroids. Facing a number of criminal charges, Jacob Chansley has been held in custody. His lawyer has now filed an extensive pleading, asking for pre-trial release. A part of the argument is what you would expect: this is really a nice, peaceful guy (who even does “catch and release” of flies) who is truly sorry for what he did.

The main focus of the pleading, though, is that the reason Chansley acted in a way that was completely out of character was the agitation and a call to action by then president Trump. Chansley’s defense, then, is a blame-shifting strategy. His legal premise is a principle called “estoppel by entrapment.” Translated, the term means that you are barred (estopped) from charging me because I got sucked in.

Since many other defendants are also blaming Trump for their actions on January 6, let’s look at what they will need to prove to escape liability for their actions.

In Raley v. Ohio (1959), the U.S. Supreme Court outlined what you need to substantiate in order for this defense to work. You must prove that a “government agent” announced that the action was legal, that the defendant relied on the announcement, that the reliance was reasonable, and that prosecution would be unfair, given the defendant’s reliance.

In the minds of these defendants, the first two components are a given: an announcement that their actions would be legal and that they relied on those representations. They claim that they were following a call to action, to “stop the steal.”

If that is true, the crux of the defense becomes whether the reliance was reasonable. Reasonableness is, at best, a difficult standard to define. What it generally boils down to is whether someone who is thinking clearly would consider an action to be a rational response.

The prosecutor will argue against “reasonableness” in a sequential way.

Is it reasonable to believe that the election was stolen, after more than 60 contrary court opinions and the statement by the Justice Department that this was “the most secure election in history?”

If so, is it a reasonable response to attempt to stop the administrative act of counting electoral votes?

If so, is it a reasonable response to storm the Capitol, resulting in massive property damage and death?

If so, is it reasonable to believe (as other defendants have alleged) that the president would pardon you for felonious actions?

Taken as a whole, “the reliance was reasonable” will be a difficult defense to prove.

Whether the former president is independently liable for his role in the storming of the Capitol is a completely separate question. We already know Chansley’s opinion on that issue.

Monday, February 22, 2021

The Supreme Court and tax returns. You may proceed.

The headline of the day from the U.S. Supreme Court is the New York state prosecutors may obtain ex-president Trump’s tax returns. The opinion took the form of a simple, unsigned order. Sometimes what is unsaid is as illuminating as what is said.

When the case was before the Court last year, a 7-2 decision held that presidents do not have special rights to prevent state criminal procedures and subpoenas. The court also said, however, that the defendant (Trump) retained the same rights to object to subpoenas as other individuals would. When the case went back down the first time, Trump raised some of those “normal” objections. When those objections were rejected, the case came back up to the Supreme Court.

This is a long way of saying that the Supreme Court was not interested in overturning the lower court’s decision that Trump’s “normal” objections had no merit. Therefore, the subpoenas for tax records may be enforced.

Again, as I say frequently here, the opportunity to obtain financial records does not prove anything. It is only after the information is evaluated that possible criminal charges might be brought.

Some pundits have questioned why it took so long for the Supreme Court to make what appears to be a fairly simple order. One reason is that the High Court typically tries to avoid making decisions that have immediate political overtones. That also may explain why, in other orders today, the Court finally put an end to the meritless post-election litigation.

As expected, Mr. Trump’s response to the order was vociferous, maintaining that this order will make it easier for the Democrats to continue their incessant personal attacks against him. His comments are, to use a distinctly non-legal term, garbage. Read again, what I wrote a few paragraphs earlier. All that this order does is to allow subpoenas to obtain financial records, exactly the same way they would if they were issued to you or me.

If criminal actions follow, they will be due to the evidence uncovered.

Friday, February 19, 2021

Why file a lawsuit you know you are going to lose?

Some lawsuits are so deficient on their face that no reasonable lawyer would think they’d have a chance at victory. So why are they filed? One answer, especially for public figures, may be to take advantage of the news cycle. The filing of litigation can be accompanied by great fanfare. The case’s disposition frequently gets only nominal notice.

Applying this premise to specific cases is not scientific, but some suits do seem to walk like a duck and quack like a duck.

Rather than picking an easy target like Sidney Powell’s “release the Kraken” litigation, consider the actions taken by Congressman Devin Nunes. To date he has filed libel or defamation suits in four different federal courts related to his involvement in Ukrainian matters. All of the suits were announced with great fanfare on his preferred media sites. Receiving less publicity, if any, is the fact that he has already lost two of these cases on motions to dismiss. In the other two cases, motions to dismiss are pending.

What brought these cases to mind is this week’s resolution of a defamation action filed by Nunes senior advisor Derek Harvey. In this lawsuit (brought by the same lawyers who represent Nunes and covering similar Ukraine activity), Harvey relied on 20 statements he attributed to CNN. 

The court dismissed the entire case, much of it on jurisdictional grounds. But the court continued:

“The Plaintiff Harvey has alleged twenty defamatory statements. He has failed to plausibly claim how any of these statements are legally defamatory, and twelve of them were apparently not published by defendant CNN. The remaining eight statements are privileged as a matter of law. Nevertheless, if plaintiff possesses facts to cure such manifest deficiencies addressed in this Memorandum Opinion, he may file an amended complaint within fifteen days. Such an amended complaint may be subject to dismissal by reason of repeated failure to cure deficiencies or futility in the amendment.”

Manifest deficiencies.

Wednesday, February 17, 2021

“Trailer for sale or rent” – the Sex Shop Case

The drive down I-65 from the Midwest to Florida is not known for being a particularly interesting one. Following a seemingly interminable stretch down the length of Indiana, you finally pass Louisville, Kentucky. But then you see something different – a large sign painted on the side of a parked semi-trailer that reads: “Lion’s Den Adult Superstore Exit Now.”

Some people got their you-know-whats in a bunch about that, so the town of Upton passed an ordinance to get rid of it. The ordinance prohibited off-premises signs on non-permanent structures. That’s the ticket. The Lion’s Den filed suit against the town, claiming that their right of free speech had been violated. They won on the District Court Level and the town appealed to the 6th Circuit.

The Court began by describing the Lion’s Den business in a marvelously understated way. “Located just off Exit 251 on Interstate 65, the store sells ‘books,’ ‘magazines,’ and other items not worth belaboring.”

The Court also noted that “Over half of its business comes from interstate drivers.” Good business model. People who wouldn’t dream of entering such a place in their hometown could rationalize that “nobody knows us in Kentucky.” (As a personal note, I think the Court missed an excellent opportunity to reference “trailer for sale or rent” from the Johnny Rivers song.)

The unanimous three-judge opinion took only six pages to affirm the lower court decision that shut down the ordinance. Opining that limiting free speech is greatly discouraged (and citing prior case law), the court held that an ordinance making a distinction between signs located on premises and those that were off-premises was arbitrary. Vague arguments about “public safety” were simply not enough to prohibit this sign and limit the plaintiff’s right to free speech.

So the sign remains. Remember to park in the back.

An interesting aside: the District Court judge and two of the three appellate court judges were appointed by Donald Trump.

Monday, February 15, 2021

The My Pillow Guy's Video and Disclaimers - Sleep Tight

 Disclaimers are everywhere and cover everything from the ridiculous to the sublime.

 “Do not use sheet as a parachute.”

“Items removed from the oven are hot and may cause burning.”

“The following program is a paid advertisement for Willie’s Widgets.  We are not responsible for its content.”

The legal effectiveness of disclaimers is widely debated but the purpose is clear – to avoid being sued.

This brings us to the My Pillow guy’s two-hour long video called “Absolute Proof” that has run repeatedly on right-leaning cable network OAN. OAN’s disclaimer before the video is notable both for its extraordinary length and specific distancing from the allegations that Lindell was promulgating.

You can almost hear Queen Gertrude in the background mouthing her classic “The lady doth protest too muchmethinks.” 

Whether OAN’s disclaimer would be sufficient to protect it from liability for defamation (suit has not yet been filed) is unclear from a legal standpoint. If the video had provided the absolute proof it promised, there would not be an issue. The better question is why OAN would potentially expose itself in the first place.

--Daniel Hoebeke

Sunday, February 14, 2021

Professional Responsibility Has Teeth

 You will remember that Dominion Voting Systems filed a billion dollar defamation suit against “release the Kraken” lawyer, Sidney Powell. She promised a vigorous defense that will show evidence of massive fraud (evidence she has promised but never delivered since the beginning of December). Powell has hired Lin Wood to defend her.

Lin Wood also has a history of filing post-election lawsuits claiming massive fraud, election rigging and other misdeeds. You may recall that all of his lawsuits were dismissed due to a lack of evidence, wrong jurisdiction and wrong parties.
Here’s where it gets interesting. Lawyers are held to professional standards that include a prohibition against filing frivolous or unsubstantiated lawsuits. Wood has his primary licensure in the State of Georgia. The State Bar of Georgia, on its own motion, has just instituted disciplinary proceedings against Wood. It alleges the violation of, if I’m counting correctly, eight different sections of the Code of Professional Responsibility. The complaint goes beyond Wood’s misuse of the courts and itemizes his conduct in demeaning a variety of public officials and private individuals.
To say that their complaint is exhaustive would be a massive understatement. The extraordinary recitation of Wood’s misdeeds runs, get this, 1,600 pages. Think of it as more than three reams of paper.
I know I’ve said it before, but it bears repeating. You can publicly make all the unsubstantiated claims of fraud and a stolen election you want on television and social media. But courts do not find frivolous claims remotely amusing. And neither does the State Bar. [Written February 14, 2021]

Does Anyone Like Facts These Days?

 Let’s say I own a restaurant. A local news program, over a three-day period, interviews a self-proclaimed expert on restaurants. He contends that I am actually an alien from the planet Rimlom and that all of my employees are also Rimlomians. He alleges that we are tainting our food in a way that will eventually transform our patrons into Rimlomians as well. The station does nothing to discourage that view. I sue the news station and the journalist for defamation. What do you think my chances of success are?

Quite slim, I suppose. In court, I would need to prove that not only has my business deteriorated, but it is because viewers of the program believed the allegations to be true. The court’s thoughts would be “almost nobody is gullible enough to believe that.” Underlying that conclusion is that even if people desperately wanted to believe that I was doing something wrong, this argument is too ludicrous to be taken seriously.
Successful defamation cases often rely on the gullibility of substantial members of the viewing public. These viewers are well-meaning people who, after hearing the allegations, can somehow rationalize how the argument supports their position. Their conclusions do not need to be based on facts. Due to a strong predisposition, facts are only minor irritations that get in the way of the conclusion that the individuals want to believe.
The news station and journalist in my restaurant example will simply continue with business as usual. However, in cases where they see they see potential merit in the defamation case, defendants may take action to minimize damages, possibly through some corrective action.
Fox News took Lou Dobbs off the air one day after the Smartmatic suit named them as defendants in a defamation suit. It is, of course, too early to draw conclusions, but the timing is interesting. [Written on February 13, 2021]

Winning Defamation Cases is Hard

 Let’s say I own a restaurant. A local news program, over a three-day period, interviews a self-proclaimed expert on restaurants. He contends that I am actually an alien from the planet Rimlom and that all of my employees are also Rimlomians. He alleges that we are tainting our food in a way that will eventually transform our patrons into Rimlomians as well. The station does nothing to discourage that view. I sue the news station and the journalist for defamation. What do you think my chances of success are?

Quite slim, I suppose. In court, I would need to prove that not only has my business deteriorated, but it is because viewers of the program believed the allegations to be true. The court’s thoughts would be “almost nobody is gullible enough to believe that.” Underlying that conclusion is that even if people desperately wanted to believe that I was doing something wrong, this argument is too ludicrous to be taken seriously.
Successful defamation cases often rely on the gullibility of substantial members of the viewing public. These viewers are well-meaning people who, after hearing the allegations, can somehow rationalize how the argument supports their position. Their conclusions do not need to be based on facts. Due to a strong predisposition, facts are only minor irritations that get in the way of the conclusion that the individuals want to believe.
The news station and journalist in my restaurant example will simply continue with business as usual. However, in cases where they see they see potential merit in the defamation case, defendants may take action to minimize damages, possibly through some corrective action.
Fox News took Lou Dobbs off the air one day after the Smartmatic suit named them as defendants in a defamation suit. It is, of course, too early to draw conclusions, but the timing is interesting. [Written on February 6, 2021]

Dominion Sues

 Today, Smartmatic filed a comprehensive $2.7 billion lawsuit in the state of New York against Fox News, a number of their news anchors and other individuals. Containing 276 pages, the allegations of specific wrongdoing and purposeful disregard of the facts are exhaustively itemized. I have only read the complaint once, but I can still make some preliminary observations.

First, the complaint, especially the summary that begins the complaint, reads like a John Grisham novel. If true, the actions of Fox News, its anchors, and Sidney Powell and Rudy Guiliani (whose unsubstantiated allegations were taken at face value) would show that the integrity of news reporting was completely undermined by a desire to pander to their primary viewership.
Second, if you have tended to think about Dominion Voting Systems and Smartmatic in the same breath, it is the fault of Fox News and its enablers. In 2020, Smartmatic was ONLY used in Los Angeles County and not in any of the areas where voting irregularities were alleged. Hence, they suffered guilt by association where no association actually existed.
Third, It is notable that the only Fox News employees who are named as defendants are people who hold themselves out to be journalists: Lou Dobbs, Maria Bartiromo and Jeanine Pirro. Excluded as defendants are such pundits as Sean Hannity, Tucker Carlson and Laura Ingraham. There was a brilliant reason for the exclusions. As I noted in a prior “legal stuff”, a court has previously concluded that pundits/commentators (including Tucker Carlson specifically) could not be successfully sued for defamation because “no reason person” would construe their commentary as real news.
The focus of the suit against Fox News, then, is that, as a purportedly accurate news source, it purposely misled its viewers and perpetuated a narrative about Smartmatic that it knew to be false. Here is their conclusion:
“With this action, Smartmatic says: Enough. Facts matter. Truth matters. Defendants engaged in a conspiracy to spread disinformation about Smartmatic. They lied. And they did so knowingly and intentionally. Smartmatic seeks to hold them accountable for those lies and for the damage that their lies have caused.”
The merits of the case will be determined at a later time. But from a first read, this is not a case that will easily be dismissed. [Written on February 4, 2021]

The Kraken and Nigerian Princes

 I once administered the estate of a woman who, at her death, was subscribing to more than 50 magazines on a tremendous variety of topics. That discovery made little sense, since there were no indications that she was a voracious reader. The reason became clear when I came across a renewal notice that said “Renew now and $100,000 can be yours!” She sincerely believed that those subscriptions would make her rich. (As an aside, the shell company perpetrating this con has since been shut down for deceptive practices.)

The reason that scams work has nothing to do with facts or logic. Rather, their success depends on their ability to identify something that the recipient desperately wants to be true – and then to promise it. However, as we continue to see with the Nigerian prince scam, some people will continue to fall for scams, even when faced with the truth.
This discussion is background for the most recent developments in Attorneys Sidney Powell and Lin Wood’s election fraud litigation in Michigan. You will recall that Sidney Powell has already been sued by Dominion Voting Systems for $1.3 billion for defamation. (Again, a reminder that the case is ongoing, so reserve judgment.)
The latest is that attorneys for the City of Detroit, who Powell described as “a third rate five-man Detroit law firm” (in a court pleading no less), are pursuing sanctions against them. Their brief concludes: “Plaintiff’s purpose was subverting democracy by obtaining judicial imprimatur to lend credence to baseless election conspiracy theories.” Dang, those are some big words for a third rate law firm. The petition for sanctions and its supporting brief goes into extensive detail to show that plaintiffs were pursuing this matter devoid of facts. The result was that many people, desperately wanting to find fraud, have been conned.
Although defendants present a compelling case, sanction requests are infrequently granted. A more likely result is that the matter will be referred to the disciplinary commission to address whether their law licenses should be impacted.
And still, some people believe the Nigerian prince. [Written on January 27, 2021]

Stipulation of Facts

 One reason why the legal process is orderly and predictable is because of something called a “stipulation of facts.” The original complaint outlines the facts upon which the case is based. The response looks at each of the paragraphs and decides what things they will agree upon at the outset. These “stipulations” have the effect of narrowing down the areas of disagreement.

Stipulations may also occur later in the proceedings. For example, you might remember that in Guiliani’s oral argument, he stipulated that “this is not a fraud case.” Subsequent stipulations like this are not uncommon. It allows the parties to help the judge decide which issues are ultimately the most important. It is the orderly development of facts, often through stipulations, that eliminate extraneous noise. Whether or not you agree with the conclusions of law, you at least have some assurance that these conclusions are based on facts as determined by the judge rather than innuendo or opinion.
As individuals, we can learn much from this deliberative process. All too often, I see people posting supposedly factual allegations that even basic research shows to be untrue. I will never argue that people are not entitled to their own opinions. But opinions are not facts. We will be able to move forward together more effectively if we to use the judicial approach of insuring factual accuracy first. [Written on January 24, 2021]

Blind Followers

 I was once called on to defend a person who got drunk at his 40th birthday party and then went out and rear ended a squad car. That case came to mind while thinking about the problems facing the defense attorneys in the Capitol riot cases.

The first line of defense for some is to argue is that not all those who entered the Capitol engaged in the same level of conduct. While that may be true, all that means is that you a guilty of a lesser offense. So what then?
Contrition and a clean record helps. But before sentencing, the judge will still ask “why did you do it?” The answer usually contains some variation of the word stupidity.
Attorney Al Watkins who represents Jacob Chansley, also known as the “Qanon Shaman”, has already outlined one part of his stupidity defense: "He regrets very very much having not just been duped by the President, but by being in a position where he allowed that duping to put him in a position to make decisions he should not have made."
Essentially, Chansley is saying that he so blindly followed the President that he was no longer able to view the President’s past actions and invocations critically. I’m not sure how much that will help his case since the stupidity defense provides no assurance that Chansley will not be similarly duped in the future.
It will be intriguing to see if other defendants assume the same posture. If they do, the next question will be whether they learned anything from this experience. [Written on January 23, 2021]

Tolkien to the Rescue!

 Apparently, the election fraud went much deeper than anyone expected. A lawsuit was filed in The US District Court, Western District of Texas, Waco Division, entitled Latinos for Trump, et al v. Sessions, et al. The defendants include the President, Vice President, all members of Congress and others.

As best I can figure out (and I admit that my legal training did not adequately prepare me for this), the entire election was fraudulent and an unconstitutional takeover. The only remedy is a temporary restraining order, putting the entire government under the temporary control of “Stewards” and the protection of those who stormed the Capitol. Who are these stewards you ask? That is explained in a footnote that I will quote verbatim.
"2 During the course of the epic trilogy, the rightful King of Gondor had abandoned the throne. Since only the rightful king could sit on the throne of Gondor, a steward was appointed to manage Gondor until the return of the King, known as “Aragorn,” occurred at the end of the story. This analogy is applicable since there is now in Washington, D.C., a group of individuals calling themselves the President, Vice President, and Congress who have no rightful claim to govern the American People. Accordingly, as set forth in the Proposed Temporary Restraining Order, as a remedy the Court should appoint a group of special masters (the “Stewards”) to provide a check the power of the illegitimate President until this Constitutional Crisis can be resolved through a peaceful legal process of a Preliminary Injunction Hearing and a jury trial on the merits."
I generally do not comment on the merits of a case while it is unfolding, but I’m fairly certain that this one is going to fail. [Written on January 22, 2021]

The NRA Fires a Shot

I’ve been following with interest the New York Attorney General’s lawsuit against the NRA. We are still early on in the litigation, so it is too early to comment on the strength of the case.

There was an oral argument on some preliminary motions today. What was said there gives me an opportunity to talk to my non-lawyer friends about what makes a strong or weak argument in court and why you may decide to raise a weak one.
In a motion to dismiss, the defendant attempts to show that there is no reasonable basis on which the plaintiff (or prosecutor) can prevail at trial. At the conclusion of a motion to dismiss argument, it is entirely appropriate to suggest to the judge that the lawsuit had no merit; it was “frivolous.” If the judge finds this to be correct, the court may do a number of things at the conclusion of the proceedings, such as assessing costs and attorney’s fees against the plaintiff.
In today’s oral argument, the NRA lawyer took a different tack. He suggested that the lawsuit “is 163 pages of corruption allegations against a political enemy.” This argument would be appropriate AFTER a dismissal had been granted, supported by evidence of course. At this stage of the proceedings, the argument has ZERO positive impact on his case as far as the judge is concerned.
If the argument is not going to help your case now, then why make it? You probably have guessed the answer. It energizes those who support his position, his base. By this evening, you’ll hear it as a sound bite on the news. Mission accomplished.
I bring this up now, because you will be seeing this approach of appealing to your base repeatedly in the coming months. If or when lawsuits are filed against Trump or the Trump organization for financial illegalities, I guarantee that the emphasis will not be on the legal one – that the proceedings are frivolous – but that these are allegations against a political enemy. And the true believers will buy it.
You heard it here first, folks.
(Update: the motion to dismiss was denied.)

[Written on January 21, 2021]

The Kraken Dies

 Deceased, the Kraken. Attorney Sidney Powell, the lawyer who was perhaps the most outspoken proponent of the theory that the election was stolen and had promised evidence “of biblical proportions”, has voluntarily dismissed her final appeal concerning the Georgia results.

One of Powell's core arguments was that the software used by Dominion and other providers changed enough votes around the country to rig the election in favor of president-elect Biden. In recent days, she has become uncharacteristically subdued in her comments. This is due, in large part, to the $1.3 billion defamation lawsuit that Dominion filed against her. That suit supported its allegations with pages and pages of specifics, demonstrating that what Powell has been alleging has no basis in fact. (Again a reminder: the lawsuit is in its early stages. You should draw no legal conclusions until all evidence is presented.)
The timing of Powell’s lawsuit dismissal would not appear to be coincidental. It is likely that the Dominion lawyers will point to any continuing efforts by Powell to discredit Dominion as a part of computing the damages resulting from her conduct. From all appearances, her dismissal today could be construed an attempt to cut some of her potential liability.
In other arenas, Powell is also facing complaints for filing frivolous lawsuits. The true believers who have contributed to her attorneys fees through her online solicitations must be having second thoughts. [Written on January 19, 2021]

Freedom of Speech and Consequences

 Freedom of speech (or assembly) does not mean freedom from consequences. At its most extreme, speech that is “directed to inciting or producing imminent lawless action” and “likely to incite or produce such action” can lead to a conviction for incitement to violence (Brandenburg v. Ohio, 1969).

It goes beyond that, however. Just because I want to express myself does not mean that others are required to publish it; they may suspend my privileges on their site. If I comment on someone else’s post here, they are entitled to delete it. If I participate in a “block the steal” event, my employer may decide that I am are no longer desirable. If I publish lies about Dominion election software, I may be sued.
What we are seeing now is a number of people complaining that they are being unfairly penalized for what they are saying and doing. “That’s not fair!” is the common complaint of a teenager. It is not a legal standard.
There ARE classes of individuals who are federally protected against retaliatory actions. These are called suspect classifications. For example, the U.S. Supreme Court has recognized religion, race and national origin as suspect classes. Actions that discriminate against members of these classes are evaluated under a “strict scrutiny” test. Adherence to particular political ideologies are not included in this category.
I vaguely remember as a child that the defense to an action would sometimes be described as “I’m free, white and 21.” When we talk about “the good old days,” we tend to forget about that or are glad that those days are gone. Most of us do anyway. [Written on January 17, 2021]

Social Media and the Law

 When Twitter suspended the accounts of Donald Trump and a number of posters advocating violence leading up to the presidency of Joe Biden, many conservatives looked for a microblogging site that would allow them to openly share their opinions. They found it in Parler, a site that catered to expressions of conservative thought. Through its lack of content monitoring (intentional or otherwise), Parler saw a dramatic increase of posts that ranged from conspiracy theories to those who advocated for violence. These posts described, in vivid detail, rape, torture, murder, and the violent overthrow of the government.

Following the assault on the Capitol, AWS, the Amazon-linked platform used by Parler, demanded that Parler remove content inciting violence or that they would close the site down. Seeing no effort to do so, Parler was taken offline due to “violations of terms of service.” Parler then filed suit against Amazon’s parent company, claiming antitrust violations and breach of contract. They also requested an injunction against AWS and an order to immediately restore service.
On Thursday, two separate but interrelated events occurred. Dan Bongino, a conservative political commentator and part owner of Parler, issued an extensive interview where he outlined how Parler was being irreparably damaged by the actions of AWS.
Concurrently, a court hearing on the injunction was being held. The oral response by the attorney for AWS, though couched in legal terms, was essentially that actions have consequences. After both sides presented their preliminary arguments, the judge repeated pressed Parler’s attorney to specify the emergency that would require an immediate order. Parler’s lawyer ultimately acknowledged that taking a longer, more deliberate approach to a permanent resolution would be the “better avenue.”
The difference between the approach in court and the public allegations of Parler spokespeople might be reminiscent of my comments yesterday: “if you want to hear things that support your point of view, tune into your media of choice. If you want evidence, you’ll need to be patient. It will come out in court.”
The use of social platforms raise a number of complex legal and practical issues. I'll be breaking those down in later posts. [January 16, 2021]

Law and Patience

 Remember Michael Avenatti of Stormy Daniels fame? He filed suit claiming to have a disc that contained all the evidence necessary to take down Donald Trump. Brash and articulate, Avenatti found an eager audience among those who disliked Trump. For weeks he dominated the airwaves on CNN and MSNBC, always promising that damning information. As we know now, he had nothing. He is now generally regarded as a charlatan, has declared bankruptcy, and is facing numerous civil and criminal charges.

Avenatti stands for the proposition that when you have the evidence, you present it in court. When you don’t, you rely on the media and an audience base who wants to believe you, regardless of the facts.
Here are three other lawyers who have become household names: Rudy Guiliani, Sidney Powell and L. Lin Wood. These lawyers have been the most vocal, and involved, in the cases to overturn the results of the presidential election. Like Avenatti, they, bolstered by numerous Trump tweets, claimed to have “insurmountable” evidence of fraud and election rigging on a national level. They too played to a receptive and eager audience, notably on FOX. Their evidence, it was claimed, would be produced “in the next couple of weeks.” We know the result – repeated promises of evidence, but losses in more than 60 cases. All three of these lawyers have been discredited and are facing a variety of monetary sanctions and professional disciplinary actions.
Guiliani, Powell and Wood also stand for the proposition that when you have the evidence, you present it in court. When you don’t, you rely on the media and an audience base who wants to believe you, regardless of the facts. As an aside, can you name three lawyers who have been defending these cases? Probably not, because their work was done where it belonged. In court.
The moral: if you want to hear things that support your point of view, tune into your media of choice. If you want evidence, you’ll need to be patient. It will come out in court. Tomorrow’s legal stuff: Dan Bongino, Parler and the suit against Amazon. [Written January 15, 2021]

Wood and Powell

 Attorney (for now) L. Lin Wood, one of the staunchest proponents of the election fraud lies, was proverbially kicked in the teeth by a federal court judge in Delaware yesterday. Wood had used the special permission of the court (a “pro hac vice” petition) to represent Carter Page in his lawsuit against the parent company of Yahoo and HuffPost. That permission has been revoked.

The judge looked at what Wood had done in a Georgia election challenge and noted that the complaint he filed "would not survive a law school civil procedure class" and the case itself was "textbook frivolous litigation." The judge was just getting warmed up. He ultimately revoked Wood’s privilege to argue in Delaware because of his “toxic stew of mendacity, prevarication, and surprising incompetence.”
For a lawyer who operates a national law practice, this does not portend well for the future.
“Release the Kraken” lawyer, Sidney Powell, also ran into a pro hac issue yesterday. She is still trying to challenge the election results in Georgia, having filed an appeal to the 11th Circuit Court of Appeals. One problem: she isn’t licensed in the 11th Circuit.
This is the quality of the lawyers who argued the election fraud cases. And still, some people believe there is merit in them. This all points to the need to be careful where you get your “news.” Harken back to the dismissal of a lawsuit against Tucker Carlson last September. I can’t state it better than the judge did.
“This ‘general tenor’ of the show should then inform a viewer that he is not ‘stating actual facts’ about the topics he discusses and is instead engaging in ‘exaggeration’ and ‘non-literal commentary.’ Fox persuasively argues that given Mr. Carlson’s reputation, any reasonable viewer ‘arrive[s] with an appropriate amount of skepticism’ about the statements he makes.”
Any. Reasonable. Viewer. [Written on January 12, 2021]

Law is Not in a Hurry

 One of the most difficult things to explain to clients is that the legal process does not provide immediate gratification or results. It takes time. That is an especially good thing in criminal matters because, as career prosecutors will tell you, time is required to allow all the facts and evidence to come forward. Does the system always work? Of course not, but the odds of obtaining full justice are greatly increased when you are deliberate in your actions.

Consider that as you watch the initial charges being brought against the Capital rioters. I’ve read many comments decrying the fact that some of the most egregious offenders have only been charged with minor infractions. At this stage in the investigation, prosecutors are simply assembling the group of people who are involved in illegal activity. As more facts received and evaluated, more charges will follow, especially for those engaged in the most abhorrent activity. Complicating their work is the fact that there is a host of charges that may come into play, ranging from murder, sedition, criminal conspiracy and RICO to the more mundane illegal entry. Again, be patient.
Some have suggested that the rioters acted with impunity because they believed Trump would pardon them anyway. The number of reasons why this is wrong is myriad.
First, it is not in Trump’s personal best interest to do so. He is facing a number of potential charges already, including possible impeachment. Pardoning these offenders would only increase his personal liability.
Second, the criminal activity is not just federal. Violation of state or local laws are not covered by a Presidential pardon.
Third, some of the activity may give rise to civil liability (money damages). These are also not covered by a Presidential pardon.
Fourth, the identification of the perpetrators has independent ramifications to personal reputations. We have already seen public officials resign, and individuals have been fired.
Looking forward to the next week, we have reason to be concerned that the crazies will attempt something. However, the people who wanted to peacefully protest at the Capital last week (and there were a lot of them) will not want to be anywhere near the place. This will make it easier for the police to deal appropriately with those who arrive. [Written on January 10, 2021]

My Life as a Shelf-Stocker

 Many years ago, I worked stocking shelves in a grocery store. I was really good at it. In fact, I was probably the best shelf stocker that ever was. When we moved to Maine a few years ago, I began shopping at Shaw’s. The way they have their store laid out is horrible. Horrible. So one day while I was there, I loaded up a cart with canned corn and moved it to the produce department where it belongs. The manager came up to me and said, “Dan, what are you doing?” I told him that I was the best shelf stocker that ever was, and that they had the canned corn in the wrong place. He said “well, that may be your opinion, but our store has a policy about where the canned corn should be and what you’re doing doesn’t meet those standards and is disrupting the shopping experience of other customers.” I told him that I had proof he was wrong and would show him in a couple of weeks. I then proceeded to load up a cart full of canned peas and brought it over to produce. The manager then told me to leave. I responded that we have something in this country called freedom of assembly and that he was violating that right.

So I left, angry, and went over to Hanniford’s and basically did the same thing … with the same result. Now I have a lot of friends in Maine who know me to be very smart person, probably the smartest person they ever met. When I told them what happened to me, they were livid. They were so livid in fact that they started moving canned vegetables into the produce department even when I wasn’t there!
My friend, Hugh, went so far as to tell the store manager that he was authorized to speak on my behalf and that he would give the proof that I had promised about how the store should be arranged. The manager said: “Aren’t you the guy who keeps arranging the cereal aisle in alphabetical order?” Hugh was asked to leave too and also complained about freedom of assembly.
Then my friend, Pam, had the same experience. (She’s the one who takes items off the top shelf because having things on higher shelves discriminates against short people.) When SHE was told to leave, she gave them the proof I had promised. It was a manual from Ace Hardware that stated unequivocably that screwdrivers should be shelved next to hammers.
We were all so upset that by these events that it was decided that on one Saturday all of my friends would go to the Shaw’s and Hanniford’s and move all of the canned vegetables into the produce section. Even though I encouraged them to do it, for some reason I didn’t show up then. They were all asked to leave and complained that Shaw’s was violating their freedom of assembly.
I was then called and told that I was not welcomed in Shaw’s or Hanniford’s for the next two weeks. I told them that not only was this a violation of my freedom of assembly but that it wasn’t my friends at all who had moved the canned vegetables. It was really homeless people pretending to be my friends.
In order to placate Shaw’s, I promised to stop moving things in the store and to tell my friends the same thing. So I contacted my friends and said “Under NO circumstances should you go to Shaw’s and Hanniford’s on January 17th and move all of the canned vegetables to the produce section.” Shaw’s and Hanniford’s have now banned me and many of my friends permanently from their stores in violation of our freedom of assembly rights. Those were our favorite shores. Now we have no choice but to do our grocery shopping at the Bailey Island General Store which doesn’t have nearly the variety of Shaw’s or Hanniford’s. As you can imagine, we are outraged. What a violation of our constitutional rights!
There’s probably an analogy in there somewhere. [Written on January 9, 2021]

Dominion vs. Powell

 Today the first lawsuit has been filed by Dominion against Attorney Sidney Powell. The 124-page complaint asks for compensatory and punitive damages of $1.3 billion. Compensatory damages cover actual monetary losses; punitive damages are designed to discourage similar types of activity in the future. The complaint also asks for a limited injunction “granting a narrowly tailored permanent injunction requiring the removal of all the Defendants’ statements that are determined to be false and defamatory and enjoining the Defendants from repeating such statements or engaging in any further deceptive trade practices relating to Dominion.” The specific allegations implicate other individuals as well, so it is not at all unlikely that other individuals may later be added as defendants to this case or become the subject of other litigation.

You will likely be reading some commentary that accepts all of the allegations in the complaint to be true. That would be a mistake. Remember that Trump and his cohorts filed more than 60 post-election lawsuits and lost all of them. This is merely the first step in the process. There will be a vigorous response to this suit and the litigation will likely be with us for a long time.
That said, my first reaction is that the complaint is at least well written and contains highly specific allegations. Here is one example from the complaint:
“During a Newsmax interview on November 17, Powell claimed to have bombshell evidence to substantiate her wild accusations: she promised to tweet out a video of Dominion’s founder publicly admitting he “can change a million votes, no problem at all.” Powell never tweeted out such a video because it does not exist. The video does not exist because no such statement was ever made, nor would it be made, by Dominion’s founder.”
As I said before, it remains to be seen whether these allegations can be proven. However, they are substantial in their detail and scope. If you wish to read the complaint yourself, here is a link: gov.uscourts.dcd.225699.1.0_2.pdf (courtlistener.com). [Written on January 8, 2021]

Trump and Twitter, et al

 There has been a lot of wailing and gnashing of teeth because Trump accounts have been banned on Twitter, Facebook and Instagram. I’m not going to even acknowledge that somehow this is a violation of free speech. Geez people, that’s high school government class. Nor am I going to talk about sedition or inciting violence. That’s for another time. Instead, there are plenty of reasons to close the accounts due to repeated lies, both about the law and the thoroughly debunked claims of fraud or a rigged election. All you need to do is look at four court actions from today.

(1) Trump claimed that Pence had full legal authority to set aside the Electoral College proceeding. That case went to the Supreme Court in Gohmert v. Pence as an emergency matter. The consensus of legal commentary was that this was perhaps the most ludicrous of the 60+ post-election cases. Today the US Supreme Court dismissed Trump’s argument without even bothering to give it a hearing. Here is all they needed to say: “The application for interim relief presented to Justice Alito and by him referred to the Court is denied.”
(2) In Trump v. Kemp and Raffensperger, Trump moved to dismiss the case today “due to an out of court settlement agreement pursuant to Fed. R. Civ. Rp. 41.” That’s a lie. There was no settlement agreement.
(3) If you were watching TV at 2:00 this morning, you heard a number or Congress people arguing that the Pennsylvania courts were all wrong and that the state’s certification should be rejected. Today, in Trump vs. Penna. Bd. of Elections, Trump’s lawyer asked to withdraw as Trump’s counsel, stating that “the client has used the lawyer’s services to perpetrate a crime and the client insists upon taking action that the lawyer considers repugnant and with which the lawyer has a fundamental disagreement.”
(4) Finally, there is Wisconsin Voter’s Alliance v. Pence. In this case, the Thomas More Society lawyer took the “let’s throw in the kitchen sink” approach. After being eviscerated by the judge, he dismissed the case. The Court was not amused. Today the Court ordered “that by January 22, 2021, Plaintiffs' counsel shall show cause why the Court should not refer him to the Committee on Grievances for all of the reasons discussed in its recent Memorandum Opinion.”
Lawyers are going to be disciplined for pursuing many of these cases. That’s what happens when you waste the Court’s time with cases that have no merit. Some people, of course, will never be convinced. They are not our concern. [Written on January7, 2021]

Felony Murder

 Here's something else to throw into the mix. Since the invasion of the Capitol was a felony and somebody died, those participants can also be charged with felony murder. [Written on January 6, 2021]

Georgia on Trump’s Mind

 I’ve been getting a number of questions concerning Trump’s call to the Georgia Secretary of State and whether it opens him up to felony charges of election tampering. As incomprehensible as his comments were, it would be difficult to make a felony charge stick. The reason is a legal principle called mens rea.

The doctrine of mens rea means that the president would have to be "knowingly and willfully" attempting to get a false tabulation. The problem with proving mens rea is that the president may actually believe the allegations he has been espousing. Since the courts have unanimously found that his arguments have no merit, there is a presumption that his arguments are meritless. Mens rea would therefore require the court to look deeper and examine whether the president was suffering from some kind of psychosis that excused his conduct. Examining his mental aptitude, regardless of moral failings involved in making the call, is something that the courts would be reluctant to do. [Written January 4, 2021]

My Bedtime Reading

 As many of you know, I am unable to read for pleasure. One of the things that law took away from me was the ability to sit down and simply pick up a book and read it non-analytically. It is something I have just come to accept.

What I AM able to read are things like legislation. So, while others were reading the latest novel by Louise Penny, I read the 419 page defense appropriations bill. That was the warmup to the $1.4 trillion budget bill that contained Covid relief – 5,593 pages. There’s some interesting stuff packed inside that bill, but that’s a discussion for a later time. Once thing I CAN tell you is that the butler didn’t do it.
Most of my reading since mid-November, though, has been the litigation following the November election. I have read all of the complaints, exhibits, replies, briefs, oral arguments and orders in the 62 cases that have been brought and argued in a variety of state and federal courts. This totals in the neighborhood of 400-500 documents. Thousands and thousands of pages.
I mention all of this only to indicate that I have a bit of understanding of the complexities of the arguments that have been brought forward – and the evidence underlying them. The conclusion is unescapable. There was no massive fraud in the elections. The elections were not rigged. Biden won.
So you can forget all of the hand-wringing and caterwauling on Fox, Newsmax, Parler and the like. You can dismiss the stacks of purported affidavits that will be plopped on desks in the next few days. You can close your ears to Navarro, Wood, Powell, Guiliani, McEneny, Trump and the posturing Congresscritters. On January 20th, Biden will be sworn in as the next president. The voters have spoken, the rule of law has prevailed, and it will continue to do so. Thank God. [Written January 3, 2021]

Gohmert's Appeal

 Update on Gohmert’s appeal to the 5th Circuit asking for emergency relief (about Pence’s role in accepting the Electoral College vote). Within the last hour, a three-judge panel (two judges appointed by Reagan, one by Trump), meeting on Saturday, slapped away the appeal without even waiting for full briefing. They further issued a mandate immediately (which typically takes a couple of weeks). This is their way of saying “go away and don’t come back” or, to put it in the vernacular, AYFKM?

Sure, Gohmert can file a petition with SCOTUS, but if he does, the Court’s only question before flushing it is whether it is septic safe. [Written January 2, 2021]

The Goal Was Not to Win

 Executive summary: the goal of the post-election lawsuits was never to win.

To date, there have been at least 60 post-election lawsuits lost in front of more than 80 judges (of all political persuasions). These cases have been filed and argued by third-tier lawyers and dismissed, primarily because of standing and jurisdictional reasons. On the rare occasions when the cases were heard “on the merits,” the judges have either determined that there were simply no merits to be found or, such as in Guiliani’s case, the lawyers have admitted “this is not a fraud case.” Is this really just extraordinarily bad lawyering (and if so, why wouldn’t you have hired better ones as time passed)?
The answer is no, and the answer only became completely apparent last week. Representative Louie Gohmert filed suit in Federal Court in an effort, among other things, to compel Vice President Pence to act completely contrary to constitutional mandates in his upcoming handling of the verification of electoral college votes.
Gohmert’s case was dismissed due to lack of standing and jurisdiction. What makes this case instructive is the fact that Gohmert was previously the Chief Justice on Texas's 12th Court of Appeals. In that capacity, he heard and ruled on standing and jurisdiction questions on an almost daily basis. Knowing what constitutes standing and jurisdiction is second nature to a justice in that position. And yet he managed to screw up his own case. Or did he?
One constant throughout all of the post-election litigation is that supposedly rookie mistakes about standing and jurisdiction have abounded. All of these “mistakes” have allowed additional cases to be filed and, because cases were ongoing, have perpetuated the opportunity to fundraise within the Republican party because “we continue to fight.” At the same time, the one million dollar offer by the Texas Attorney General for proof of fraud remains unclaimed.
If you can’t write a check right now, they accept Visa and MasterCard. [Written January 2, 2021]

Sue the Electoral College?

Erick G. Kaardal, Special Counsel for the Amistad Project of the Thomas More Society, filed a lawsuit yesterday in the D.C. District Court to throw out the election and, essentially, void 130 years of Constitutional law. The complaint is, frankly, incomprehensible. It’s going nowhere.

Just to point out one “minor” problem, one of the defendants is the Electoral College. Suing the Electoral College is, as one legal analyst pointed out, like suing wind after a hurricane. [Written December 23, 2020]

It's Latin Day!

 Lawyers may only appear in court in places where they have qualified to practice. If they wish to argue a case in another jurisdiction, they may ask special permission for that specific case. (To appear without permission would be the unauthorized practice of law.) The term for this request is pro hac vice. As a general rule, if you are in “good standing” where you are licensed, this request is granted. This is how Sidney Powell and Lin Wood have popped up in so many jurisdictions.

This right to appear is subject to an important condition. Your conduct must meet the professional standards of the granting court/state. Which brings us to Lin Wood appearing pro hac vice in Delaware in the Carter Page case.
The judge in that case has just issued a “show cause” order against Lin Wood, requiring him to show why his permission should not be revoked. This four-page order reviewed a litany of unprofessional actions by Wood and requires him to respond by January 6th. The judge wasn’t subtle. Here’s one example.
“Mr. Wood’s conduct in filing this false affidavit violates DRPC [Delaware Rules of Professional Conduct] 1.1 (Competence), 3.1 (Meritorious Claims and Contentions), 3.3 (Candor to the Tribunal), 4.1(a) (Truthfulness in Statements/False Statement of Material Fact), and Misconduct (Dishonesty and Deceit),”
The judge concluded: “All of the foregoing gives the Court concerns as to the appropriateness of continuing the order granting Mr. Wood authorization to appear in this Court pro hac vice.”
This will likely not be the last sanction urged against Wood and, similarly, Sidney Powell. It all harkens back to a theme through the last month of legal stuff: it’s easy to lie in front of the media, but doing so in court has consequences. [Written December 22, 2020]

The Law of the Case

 As the final post-election cases are getting filed or appealed, there is no chance whatsoever of success. The reason is a legal doctrine that most non-lawyers have never heard of. It’s called “the law of the case.” Once a higher level court has ruled on facts or law, those decisions are binding on any subsequent proceedings in those cases or other cases that rely on the same legal theories or purported facts.

The concept of law of the case is particularly intriguing in the context of the pre-election challenges in the Georgia senator runoff election. Last week, two federal courts have already dismissed cases concerning Georgia’s voting and counting procedures. Both judges at oral argument noted that the same issues were previously decided by their higher court, the 11th Circuit, and that the appellate court’s determinations were binding upon them.
As a side note, one of last week’s cases was argued on behalf of the Republicans by a qualified election attorney. In a devastating reference to previous cases argued for the President, he began his argument this way: “I’m George Terwilliger. I’m not Sidney Powell. I’m not Lin Wood. I’m not Rudy Guiliani.” It did him no good. If there is one lesson that “the law of the case” should teach is that you MUST put on your best case at the beginning, since losses at the beginning may haunt you later on. [Written December 20, 2020]