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More stuff you couldn’t make up

Saturday, February 27, 2021

I frequent a blog called Above the Law, which features articles about my former profession. I think it’s fair to say the site has a slightly leftward slant, but then one can say that about anyone who is rational these days.

I don’t know whether to laugh or cry about the posts here and here about a Trump loving lawyer who just lost his job as Associate General Counsel at Goosehead Insurance (yes, I duck-duck-goed it, there is such a company) after joining the insurrection on January 6th.

His name is Paul Davis, which doesn’t sound very Latino, but he has just brought a lawsuit seeking to overturn the election, actually the government, on behalf of Latinos for Trump. In the lawsuit, he has cited The Hobbit and The Lord of the Rings in support of his argument that the court should declare the entire federal government essentially non-existent:

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 [sic] 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.

There’s more craziness in the posts to which I’ve linked. Sidney Powell, Rudy Giuliani, and Lin Wood owe this guy big-time, inasmuch as he makes them look like legal scholars.

The laughing part comes easy, but you are tempted to cry when you consider that the legal profession is infested with people like this, and that over the course of the last few years, a number of them have become federal judges. (See my last post)

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Expect More of This

Friday, February 26, 2021

Everyone is aware that the Republican Party is in the grip of religious fundamentalists, but over the next few years we will become ever more aware that it, and as a result the nation, is now in the grip of legal fundamentalists, judges who are intent on reviving once thought dead constitutional jurisprudence in order to render the federal government powerless to address issues of national concern.

This is a recent example:

For nearly a year, millions of Americans who are unable to pay their rent due to the economic crisis triggered by Covid-19 have had some protections against eviction. Both the CARES Act, which became law last March, and the second Covid-19 relief bill, which was signed in December, included temporary moratoriums on many evictions.

In the interim periods when these statutory safeguards against eviction are not in effect — the CARES Act’s moratorium expired after 120 days, and the second relief bill’s moratorium expired on January 31 — the Centers for Disease Control and Prevention imposed a similar moratorium using its own authority, citing a federal law that permits the CDC director to “make and enforce such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases.”

On Thursday evening, a Trump-appointed judge on a federal court in Texas handed down a decision that calls into question the legality of these moratoriums. Currently, there is no congressional moratorium on evictions in place, only the CDC moratorium, although it is likely that the $1.9 trillion Covid-19 relief bill currently being negotiated in Congress will implement a new statutory moratorium.

The article to which I’ve linked begins its discussion of the previously relevant case law with this entirely justifiable statement:

The opinion is a mélange of libertarian tropes, long-discarded constitutional theory, and statements that are entirely at odds with binding Supreme Court decisions.

As the article amply proves, the Texas judge ignored binding precedent in an almost breathtaking display of legal bullshittery. Nonetheless, the likelihood is that he’ll be upheld, as will most of the cases brought to frustrate any legislation the Democrats manage to get by Senate Republicans, Joe Manchin, and Kyrsten Sinema.

The intent of these decisions, and it is by design, is to drag our constitutional jurisprudence back into the early nineteenth century, rendering it impossible for the federal government to respond to the realities of modern times. This is entirely consistent with the Republican philosophy, articulated by Saint Ronnie, that government is the problem and can never be the solution. What better way to prove that proposition than by making it legally impossible for the government to accomplish anything? It is also consistent with another objective: returning the country to the conditions prevalent in the South prior to the voting rights act and the abolition of the poll tax, such that the vast majority of people inclined to vote against the Republican Party and its fascist agenda will be disenfranchised. The next step will be the return of Jim Crow, complete with a denial that they are doing exactly that.

Addendum: It is somewhat misleading to refer to judges as “Trump-appointed”. Trump had little or nothing to do with choosing judges. As with everything else, he really didn’t care. He simply passed on names given to him by McConnell and/or the Federalist Society. That Society will, for the foreseeable future, continue to hold sway whenever we have a Republican president.

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Grifters gotta grift

Tuesday, February 23, 2021

I spent a bit of time yesterday reading the complaint in the case of U.S. Dominion, Inc. et. al. v. My Pillow, Inc., et. al over the last couple of days. You can read and/or download it here. Mike Lindell, the CEO of MyPillow, is one of the et. als. among the defendants. It’s a fun read, but I must say that I am now feeling just a bit naive, for I didn’t know what a grift his whole act has been.

I knew that MyPillow itself was a scam, but it never occurred to me that all his bloviating about the election was primarily a way for him to sell more pillows. The complaint lays it all out in exhaustive detail.

In my own defense, I don’t directly consume the fictions peddled on Fox or the even more extreme right wing media on which Lindell has appeared, so I wasn’t aware that each and every one of his appearances was nothing more than a commercial for MyPillow, complete with discount codes like QAnon. The complaint documents that while he has been dropped by some major retailers, mail order business has never been better, and has more than made up for any losses in the retail sector.

So you have to hand it to the guy. He saw an opportunity and he grabbed it. His business has, as the complaint also documented, always been based on fraud, and he knows where the marks are. Under each MAGA hat there sits a brain, or what passes for a brain, that is completely bereft of fraud detectors. Such brains actually believed the stuff spewed by a person who formerly occupied the office of President of the United States. Lindell saw that they were ripe for picking. All he had to do was feed them the lies they wanted to hear, assure them he was telling them the truth, and remind them that they weren’t really supporting the cause unless they were also buying one of his pillows. It was that tactic that allowed Dominion to sue not only Lindell, but his company, because in all his appearances his connection to MyPillow is front and center, and he is clearly speaking on its behalf. If Dominion gets a judgment, it will be able to seek monetary satisfaction against MyPillow, and not just Lindell, who will probably hide his assets while the case is proceeding.

The lawsuit was filed in DC, and there’s a reasonable chance it will be assigned to a decent district court judge. I think there’s a reasonable chance that a judge would enter a summary judgment as to liability, based on the exhaustive facts alleged, all of which seem to be easily provable, as most of them are a matter of record, either on video, written form, or social media posts. For you non-lawyers out there, a judge can enter a summary judgment, no trial necessary, if there is no dispute as to the material facts necessary to support a judgment. In that context, you can’t get away with simply saying you do dispute a fact, you have to come up with a solid basis for doing so, such that a reasonable jury might go your way. If such a judgment were entered, the jury would be required to determine the amount of damages only.

In any event, it looks like a rock solid case, assuming you can get a jury free of folks with the kind of brain I described a few paragraphs ago. Assuming Dominion does get a judgment, it will be interesting to see if any appellate judges decide that it’s worth distorting the law and their reputations in order to give Lindell a get out of jail free card. My guess is that the Appeals Courts will take a pass on rescuing Lindell and the rest of the folks Dominion has sued. Even the judges appointed by Trump are likely to do that, since they all know he actually had nothing to do with appointing them. He just did what the Federalist Society told him to do, as will the next Republican they get in. Most of them will probably make the calculation that the chances of getting another Republican president soon will be enhanced if Trump can be shoved down the memory hole.

Afterword: After I wrote the above, my wife sent me a link to this article at Talking Points. Apparently Lindell, after initially saying he welcomed the lawsuit, is now having second thoughts.

The complaint includes this sourced allegation:

Lindell began benefitting at Dominion’s expense even before producing and broadcasting his “ABSOLUTE PROOF” “docu-movie.” Indeed, every time Lindell was called out for making false claims about Dominion, his business “would go up anywhere from 10 to 30%” because, as Lindell has explained, “everybody on the Right buys more, they buy more to support the cause.” As a result of the defamatory marketing campaign against Dominion, MyPillow sales are up 30 to 40% and MyPillow is the busiest it has ever been.

Lindell is now trying to walk back the happy talk, claiming he has lost millions in revenue as a result of being dropped by the big box retailers. Apparently, he has had a sit down with his lawyers, who can’t be looking forward to defending the case. In any event, they should get their money up front. He is a fan of the genius’s after all.

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Liberal bias runs rampant! Well, actually, not so much

Monday, February 22, 2021

First, let me recommend this site, to which I’m linking for purposes of this post. Eric Boehlert covers media bias, the real kind, that routinely consigns Democrats to the bench. In this instance, he points out something that is both outrageous and perfectly predictable:

After creating new programming rules for the Trump administration and airing virtually every minute of every White House press briefing live and in its entirety, CNN has quietly cut the cord with the new Democratic administration.

Just one month into President Joe Biden’s term, the all-news cable channel last week stopped airing the daily White House press briefings. Perhaps the events weren’t entertaining enough, as White House spokesperson Jen Psaki has routinely declined to insert Biden into cultural war debates, refused to castigate reporters, and won’t make stuff up in the name of partisan warfare, the way her Republican predecessors did.

Read the whole thing.

The fact is that this bias, which is standard fare on the Sunday shows (how many times has the idiotic Lindsey Graham been on Meet the Press?) makes the press complicit with the ongoing destruction of democratic norms in this country. If you give the liars prominence, you are implicitly endorsing their point of view, whether you want to admit it or not.

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Politics is a funny business

Sunday, February 21, 2021

My wife and I get three newspapers every morning, the execrable New London Day, which I rarely read, the New York Times, because I need my dose of Paul Krugman, and the Boston Globe.

As a result I’m somewhat up on Massachusetts politics. The tendency of the folks in Massachusetts to elect Republican governors has always somewhat mystified me, though I have to admit that maybe the corrupt Massachusetts Democrats do need some counterbalance. Specifically, I’ve always been amazed at the popularity of their governor, Charlie Baker, who has always seemed a mediocrity to me. Baker, though, is fairly good at making sure he is perceived in a positive light, i.e., good at self promotion.

Lately, Baker’s popularity has taken a bit of a hit, due to his administration’s fairly disastrous vaccine rollout, which followed a fairly poor record on dealing with the pandemic in the first place.

Consider also, the fact that until recently Andrew Cuomo was a pandemic golden boy, more out of his ability to be a self promoter than his actual accomplishments.

And that brings me to the whole point of this little piece. It is a sad fact of life that a politician can thrive more as a result of self promotion than on the merits of his or her performance.

Consider our governor, who entered the pandemic with one of the lowest approval ratings in the country. What had he done to deserve such low ratings? His job and nothing but his job. If he has a horn, he doesn’t toot it.

His ratings have improved somewhat since COVID, but my guess is that he’s still lagging both Baker and Cuomo. From the start, his inability to engage in self promotion has been his most obvious flaw, and that is certainly the case in the midst of this pandemic.

A week ago the Globe ran an article about Baker’s fairly disastrous vaccine rollout, which included this graphic:

Connecticut was number 6 so far as effectiveness was concerned, and appeared to be first among the densely populated states. It may have slipped a bit since then, but we’re still doing pretty well. During his daily press conferences Lamont comes across as totally earnest, doing his best to do his job, but in such a low key way that he fails to earn the plaudits that were heaped on Cuomo, who even got a boost from Randy Rainbow.

From a political point of view it is almost better to be a loud and pandering non-achiever or obstructionist than a low key achiever. Consider the state Senator from my district, Heather Somers, who spends her time on Facebook firing up the anti-vaxxers. She’ll probably get more political return for that than Lamont will for doing his job well. Or consider Greg Abbott, who is very much responsible for the disaster in Texas, who will probably skate to re-election, as quite likely, will Ron DeSantis in Florida, who has been steering vaccinations to his wealthy supporters.

It seems like the state Democrats should step up and start talking up Lamont’s response to this crisis, but Connecticut Democrats are like their federal brethren. Republicans will all repeat the latest lie, but Democrats will never pound away at the truth.

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Rush Limbaugh is dead

Wednesday, February 17, 2021

It’s days like this when it saddens me that I no longer believe in Hell.

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Some things never change

Tuesday, February 16, 2021

While my wife and I await our second shot, after which we will feel free to, you know, do things, and as I wait out the weather, which has pretty much put an end to daily biking, I’ve been doing more reading than usual. Among the books I’m currently reading is Herman Melville’s The Confidence Man. It’s not on the Moby Dick level, but it’s still reasonably amusing.

It’s the story, humorously told, of a grifter who boards a Mississippi Riverboat and plies his trade, trading personas and grifts as he passes various stops on the trip.

At one point he is peddling snake oil to the rubes, and comes upon a backwoodsman who won’t buy into his con. During the course of their back and forth the backwoodsman asks the grifter if he’s an abolitionist.

And here’s where we come to the part that’s relevant to today. Here’s the grifter’s reply:

“As to that, I cannot so readily answer. If by abolitionist you mean zealot, I am none; but if you mean a man, who, being a man, feels for all men, slaves included, and by any lawful act, opposed to nobody’s interest, and therefore, rousing nobody’s enmity, would willingly abolish suffering (supposing it, in its degree, to exist) from among mankind, irrespective of color, then am I what you say.”

To which the backwoodsman replies:

“Picked and prudent sentiments. You are the moderate man, the invaluable understrapper of the wicked man. You, the moderate man, may be used for wrong, but are useless for right.”

As the title of this post says, some things never change.

I am sorry to say that after this scene, the grifter “disembarks” in one guise and reboards in another, and manages to work a new grift on the backwoodsman. Let us hope that the grifter down in Florida is not able to pull off that trick.

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Be careful what you ask for

Friday, February 12, 2021

The Republicans are making a deeply dishonest argument.

I know, every argument they make is deeply dishonest, so I really have to be a little more specific.

As the FCC gets closer to restoring net neutrality, a new and bizarre GOP talking point has emerged. It goes something like this: if you’re going to restore some modest rules holding telecom monopolies accountable, you just have to dismantle a law that protects free speech on the internet! This of course makes no coherent sense whatsoever, but that’s not stopping those looking to demolish Section 230, a law that is integral to protecting speech online.

via Above the Law

This is an interesting piece of dishonesty, because it might be an instance in which the Democrats should call their bluff.

As I understand it, Section 230 grants various content providers on the web protections from libel and slander actions that other publishers do not have. The underlying rationale makes sense, and made even more sense when the statute was passed, as the harm that social networks could cause was not yet obvious. The difficulty of policing such large volumes of speech was just one of many factors that led to Section 230. A newspaper can easily police its own content, but it’s not so easy when the content is uploaded by millions of users a day. In any event, the net result is that Facebook, for instance, is not liable for most if not all of the misinformation, libel, slander, and conspiracy theorizing that takes place on its platform. If it were a socially responsible company it would do its best to make sure that its platform was not abused, but it is owned by Mark Zuckerberg.

The Republicans have chosen to try to make “Big Tech” out to be the bogeyman, but I ask you, who is most likely to suffer if “Big Tech” has to police the content on its sites, and cleanse them of hate speech, misinformation, libel, and incitements to violence? Wouldn’t it be the political party and ideology that traffics in hate speech, misinformation, libel, and incitements to violence?

Personally, I think it might be productive to take another look at Section 230, in light of the way in which it has shielded actors like Facebook from the obligation to police the content it inflicts on the world. There’s no question that there are competing interests involved, but it certainly appears that there may be a need to impose some obligations on content providers that would protect the public’s interest in decreasing hate speech, misinformation, libel, and incitements to violence. One can certainly make a cogent argument that the unfettered “speech” in which the rioters and their Führer engaged prior to the insurrection was a necessary precondition to their attempt to overthrow the government. We do have a right to protect ourself from people who want to overthrow the government, even at the stage when their planning is taking place. I won’t even bother to explain why cries of “free speech” are inapplicable in this context.

So, while the Republican’s arguments make no sense, which they almost never do, it might not be such a bad idea to take them up on it. It would be interesting to see how long it takes for them to come up with some way of attacking Democrats for daring to even consider amending Section 230, which will, overnight, transmogrify into the guardian of our liberties.

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Super Sunday rant

Sunday, February 7, 2021

This is my blog, and since no one reads it anyway, I figure I have a perfect right to write about two unrelated things in one blog post. So, here goes.

As a still licensed, though retired lawyer, I’m interested in the series of lawsuits that have been filed against, Fox, Giuliani, and their ilk by the voting machine companies. During the time I practiced I had only some tangential experience in an actual libel case, but I think I’m up on the law, and it seems to me that these cases are slam dunks from a legal perspective, even if the plaintiffs qualify as “public figures”. There is no question that those spreading these lies knew or should have known that they were untrue, and knew or should have known of the potential harm to those they were libeling.

So, this makes me wonder. If these cases don’t settle, and the plaintiffs win at trial, what will the Supreme Court do if and when the cases reach it? As I’ve noted before, we are now burdened with a deeply dishonest Supreme Court, which may be motivated to give Fox and Friends a get out of jail free card. After all, this sort of lying works best to motivate the right wing base that helped get them their jobs in the first place. Without a license to lie, it’s doubtful that Trump could have won in 2016, and the worst of the worst would not be on the court now. There’s probably no way to rule in favor of the defendants in these cases without rendering the libel laws a dead letter, but the court would want to preserve plausible deniability so far as that outcome is concerned. The trick is to do it in such a way that you leave an opening to stick it to the libs should one of them end up at the defense table in one of these cases. That would take some fancy wordplay, but remember what they pulled off in Bush v. Gore. We’ll see how it all plays out, but in the meantime I would really enjoy watching Dobbs, Giuliani, Baritomo, Pirro, Powell, and their ilk being cross-examined by a competent lawyer.

Okay, so on to the next topic, which at least has a bit of a legal angle to it. It appears that Kyle Rittenhouse, who traveled across state lines to murder BLM protestors, who is out on $2 million dollars bond, has gone to parts unknown. His attorneys know where he is, but they’re not telling, as they’re pretending he’s in danger. This, as I understand it, is a no-no, but then he is a white guy, and it’s not like he wants to vacation in Mexico.

$2 million dollars is a lot of money, but it’s not really that much if not a dime of it is your own. The purpose of bail is to provide an incentive for the defendant to actually appear in court when required. Otherwise, he or she runs the risk of forfeiting whatever amount has been put up as bail, and, in many cases, earn the wrath of a bail bondsman who might make sure you come back. Some states even allow bounty hunting. None of these incentives apply, however, if the money that’s been put up is not your own, and if no one will be in a position to take umbrage if you skip out. That’s precisely the case in Rittenhouse’s case. His bail was raised on line from other right wing whackos, who will never see their money again, in any event, and even if they are supposed to get their money back at some point, none of them will be in a position to do much about it if they don’t. In other words, the prospect of forfeiting bail holds no fear for Rittenhouse.

The solution to this is fairly simple. If on line sites like GoFundMe won’t do it voluntarily, it should simply be made illegal to raise funds for someone’s bail on line. Sitting judges might also condition release on proof that the funds being used as bail are derived either from the defendant’s (or his family’s) personal funds or from a bail bondsman to whom the defendant is personally liable. It is to be hoped that Rittenhouse will rot in jail for a good part of the rest of his life. If he forfeits the bail and is then re-arrested that might be even better, as it would put $2 million dollars into the coffers of the State of Wisconsin and enhance his eventual sentence, assuming his likely all white jury votes to convict.

Afterword: A reader may notice that this was posted while the Super Bowl was happening. At least I think it’s happening. I take a certain amount of pride in saying that I have learned the Super Bowl result from the newspapers more often than not in the last 20 years or so, and when I’ve learned it in other ways, it was entirely by happenstance. I have no television, but even if I did, I wouldn’t tune in. I do hope Tom Brady loses, but other than that, I really don’t care.

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How Stupid to you have to be to teach at Harvard Law? (Part 2)

Friday, February 5, 2021

Alan Dershowitz is apparently not alone.

Back in May I wrote a post about Larry Lessig, Harvard Law Professor who brought a case to the Supreme Court claiming that presidential electors should be free to vote for the person of their choice, in spite of state laws requring them to vote for the candidate to which they were pledged. His stated aim was to “make the Electoral College so wacky and unpredictable that the entire country turns against it, then adopts a constitutional amendment creating a nationwide vote for president”.

In my post, I proved beyond doubt that a favorable Supreme Court ruling would not result in such an amendment. But that case had one merit. A favorable ruling would have done little harm, because one must assume that the campaigns make sure that the electors they choose to put on the ballot will, by and large, remain faithful to the candidate to whom they are pledged.

The Supreme Court ruled against him.

Now Lessig is at it again, along with some other lawyers, including David Boise (who helped George W steal the 2000 election). This time they are claiming that winner take all state elections, in which the candidate with the most votes gets all the electors from that state, are unconstitutional.

The case is brought by a pair of California Republicans and a pair of non-profit organizations and alleges that the “winner take all” system of awarding presidential electors that prevails in every state except Maine and Nebraska amounts to an unconstitutional dilution of their right to vote.

They are claiming that the electors should be distributed to reflect the vote in each state.

I’m sure Lessig and his brethren would argue that the end result of a favorable ruling would bring us a near equivalent to a popular vote constitutional amendment. But this requires us to adopt a very Pollyanish view of the current Supreme Court, for it presumes that the court would issue a decision that would not be infected with partisanship, bad faith, and intellectual dishonesty of the first order. Given that the current Supreme Court is partisan, operates in bad faith, and is as intellectually dishonest as a court can be this is a leap of faith that no Olympian could accomplish, yet Lessig and his compatriots appear to have jumped into the abyss.

There are, roughly speaking, two ways in which the court could render a favorable opinion in this case.

The first way would strike down winner take all systems as unconstitutional and require that electors be apportioned strictly on the basis of the percentage of the vote that each candidate got in the state in question. If a state had 10 electors, and the vote was split 50-50, each would get 5 electors. This would, if applied nationwide, likely guarantee that the popular vote winner would win the presidency, though I suspect that the states having few electors, such as Wyoming, would cause the final electoral college vote to skew red-ward. Proving that speculation would require more math than I’m willing to do, but even if I’m right, the popular vote winner would still likely come out on top.

Because in the current day and age the popular vote winner is overwhelmingly likely to be a Democrat, the present Supreme Court would never choose this option.

The court would take the second route. It would leave it entirely up to the states to determine how to apportion the electors, basically greenlighting an apportionment by Congressional district. This would mean that a heavily gerrymandered state such as Pennsylvania, which gave Biden a majority of its votes, would have given the majority of its votes to the Republican candidate whose name shall not be needlessly mentioned in this blog. There is literally no state in the union that is as heavily gerrymandered in favor of the Democrats as are 10 to 20 states in favor of the Republicans. Had such a system been in place in 2020 the crowds of folks currently being arrested for sedition would have been goose stepping at the genius’s inaugural parade on the 20th of January last. The fact is that such a system would be less likely to favor the popular vote winner than the current system.

Anyone paying attention to this Supreme Court would have to know that this is how they would rule. This is the court, after all, that blessed partisan gerrymandering, a step it would never have taken had it been Democrats doing the gerrymandering. It is also the court that is looking the other way while the states of the South attempt to re-institute Jim Crow.

So, are Lessig and his fellow lawyers just stupid, or are they really just trying to hand the Republic over to the Republicans?

I suspect the court will either refuse to hear this case, or rule against the Lessig team, but we should all fear the possibility that it will take this opportunity to game the system in favor of the Republicans.

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