Claims and Bad Faith Law Blog

AND IN THE DISTRICT COURT, LISA NEWMAN LED THEM TO SUCCESS.

In articles posted here on October 7 on Claims and Issues Blog and here on October 12, we explored together the saga of how the U.S. Department of Justice obtained a preliminary injunction against the Texas abortion law.

          The United States had ten (10) lawyers listed on the docket of that case in the District Court, in other words, the trial court.  After a review of the District Court file, one of those lawyers clearly emerges as the lead attorney in this successful lawsuit in the trial court:  LISA NEWMAN, ESQUIRE.

          Ms. NEWMAN signed all the significant motions and pleadings filed by the United States, including the complaint and the emergency motion for Temporary Restraining Order/Preliminary Injunction.  She was obviously entrusted with great responsibilities by the Department of Justice, and the results show the wisdom of that decision.

          It is interesting that Ms. NEWMAN has only been a Trial Attorney in the Civil Division, Federal Programs Branch since October 2020.  Before that, she did many things of distinction:

• She was a law clerk at the Western District of Texas for two years before she went to the DOJ. (She may have either known, or known of, the federal District Judge in the Western District of Texas who decided this case.  He was on the bench when Ms. NEWMAN clerked in the Western District.)

• She got both her B.A. from the University of Texas, and her law degree from the University of Texas School of Law.

• To say again, the fact that ten lawyers followed Ms. NEWMAN'S lead is a testament to her legal skills.  The current department of justice would be well-advised to look to her lead again in other cases.

Including in Texas's current appeal from its loss to the team led by Ms. NEWMAN in the District Court.

Please read the disclaimer.  ©2021 Dennis J. Wall.  All rights reserved.

JUSTICE IS MORE LIKELY THE RESULT OF COMMITMENT, THAN CONNECTIONS.

You may already know that the department of justice's successful efforts to bar the Texas abortion law were led in the District Court by LISA NEWMAN, ESQUIRE.  See AND LISA NEWMAN SHALL LEAD TEN OF THEM ....  If you do not already know that, look for tomorrow's article here as well.

          The doj's success was fleeting, though.  Texas won the initial skirmish on appeal.  A motions panel in the appellate court, which means a panel of judges that was gathered together to hear motions in all the appeals pending in the appellate court, granted Texas' motion to lift the District Court's injunction of the Texas law in this case, as we reported in an article here on Saturday, October 9, 2021.

          Technically, the motions panel only granted a motion to stay the injunction in this case, in other words, to keep the Texas abortion law in place, for so long as it may take for the Fifth Circuit Court of Appeals to decide the motion.  See FIFTH CIRCUIT MOTION PANEL ORDER REINSTATING TEXAS ABORTION STATUTE FOUND!, posted here on Saturday, October 9, 2021.

          In reality, of course, this is the Fifth Circuit.  Things are looking grim for the doj.  The department of justice needs to maximize its chances of reaching the judges who sit on the Fifth Circuit, which covers Texas, if the United States is going to have any chance of prevailing on the merits of this case on appeal.

          The doj replaced the successful trial lawyer, LISA NEWMAN, on the appeal.  That is not unusual, that an appellate lawyer at a big firm, or in this case at the doj, comes in to handle an appeal rather than the trial lawyer who won the case.  In this particular case, it should be noted that NEWMAN is from Texas, went to the University of Texas undergrad, and then went to the prestigious University of Texas Law School.  The judges on the Fifth are likely to listen to her.

          Or they would have been.  Ms. NEWMAN has been replaced on appeal with one DANIEL WINIK, ESQUIRE.  He signed the USA's Opposition to Stay which was filed a day ahead of the deadline.  (Sorry I cannot provide a copy of it here as the blogging platform, Typepad, could not download it to this blog which is a first.  Suffice it to say that Mr. WINIK's memorandum opposed the idea of a stay in the Fifth Circuit which would necessarily reinstate the Texas abortion law.)

          MERRICK GARLAND, did someone tell you this is a good decision, removing the successful trial lawyer from the appeal?  Just asking for the country.

          Mr. WINIK is a White male who went to Yale.  Good luck relating to the judges down in the Fifth Circuit.  Not extremely likely that they'll listen to you, Mr. WINIK, but maybe.  Time will tell.  Not a winning strategy on appeal, in any case.

Please read the disclaimer.  ©2021 Dennis J. Wall.  All rights reserved.

FIFTH CIRCUIT MOTION PANEL ORDER REINSTATING TEXAS ABORTION STATUTE FOUND!

(Texas /Austin American Statesman)

After a long search, I have found the Fifth Circuit's Order of October 8, 2021 reinstating the Texas abortion ban statute.  Following recent Fifth Circuit precedent, the Order was issued by a three-judge motions panel without an opinion and without briefing or oral argument.  Technically, the Order is in effect until the Fifth Circuit disposes of the 'emergency' motion to stay the statute pending appeal.

          The United States has been ordered to file a response by Tuesday, October 12, 2021.

You can find the Fifth Circuit motions panel Order here for your ease of reference:  Download Order 5th Circuit Emergency Stay United States v. State of Texas No. 21-50792 (5th Cir. October 8 2021).

Please read the disclaimer.  ©2021 Dennis J. Wall.  All rights reserved.

MR. KELLY'S 8 LAWYERS vs. 3 PROSECUTORS: KELLY GUILTY ON ALL COUNTS.

Mr. R. Kelly was famously found guilty by the jury on all 9 counts, which break down into a gutsy, novel Racketeer Influenced Corrupt Organizations (RICO) count and 8 counts under the Mann Act addressing sexual relations with underage victims.

          Mr. Kelly was defended by 8 lawyers according to the docket on PACER (Public Access to [Federal] Court Electronic Records).  He was successfully prosecuted by three prosecutors from the U.S. Attorney's Office for the Eastern District of New York.

          Each of the three prosecutors is a woman.  Each is a very accomplished, very successful criminal lawyer.

          They were led by ELIZABETH GEDDES, ESQUIRE.  Ms. GEDDES, a member of the U.S. Attorney's Office for 15 years, heads the Civil Rights Section of the Criminal Division at E.D.N.Y.  As is so clearly evidenced by this case, her specialty is the prosecution of racketeering and organized crime.

          Like each of the three prosecutors, Ms. GEDDES has a distinguished resume apart from her work at E.D.N.Y.  She is an adjunct at N.Y.U. in Clinical Law.

          NADIA SHIHATA, ESQUIRE has been with E.D.N.Y. for 10 years and has been the Chief of the Organized Crime and Gangs Section for nearly 2 and 1/2 years.  She graduated from the University of Michigan Law School in 2003, where she was the Editor-in-Chief of the prestigious Law Review.  At Michigan Law, she also received the Order of the Coif, one of the higher honors any law student can receive.

          Ms. SHIHATA's distinguished resume does not stop there, however.    She got an L.L.M. from N.Y.U. in 2008.  She is an adjunct at Columbia Law.

          The third member of the prosecution trio is MARIA E. CRUZ MELENDEZ, ESQUIRE.  She is the Deputy Chief of the Civil Rights Section at E.D.N.Y.  She graduated from Harvard in 2001 and in an unusually positive mark of distinction for Notre Dame Law School, she is a 2006 graduate of Notre Dame Law.

          These accomplished lawyers are demonstrably competent and so they compare very favorably with the department of justice personnel who have appeared in past articles posted here.  The doj could not do better than making use of the talents of these three lawyers in every case they can handle for the United States.

          MERRICK GARLAND, let those who have eyes to see, let them see; let those who have ears to hear, let them hear.  Bring these people in to your depleted department and let them prosecute the January Sixers, and others.  That would be a terrific solution.  The results will speak for themselves.

          The results speak for themselves now.

This article was posted in a slightly different version on Claims and Issues Blog on the last day of September, 2021.  Reprinted here with permission.

Please read the disclaimer.  ©2021 Dennis J. Wall.  All rights reserved.

A LITTLE FEDERAL JURISDICTION NEVER HURT ANYONE: JUDGE IMMUNIZES OPIOID-PROFIT-TAKING.

The Department of Justice has filed a Notice of Appeal from a Bankruptcy Judge's ruling approving a settlement in which the Sacklers received immunity from lawsuits arising out of the opioid epidemic.

           The Sacklers are individuals who are not before the Bankruptcy Court in the Bankruptcy filed by Purdue Pharma.

           The Sacklers, as the apparent owners of Purdue Pharma, can accurately be identified as profit-takers from the proceeds of opioid sales generated by their corporation, Purdue Pharma.

          The United States Bankruptcy Trustee's Office in New York has appealed this decision.  Assistant U.S. Trustee LINDA A. RIFFKIN filed the Notice, which also bears the names of DOJ Trial Attorneys PAUL K. SCHWARTZBERG, BENJAMIN J. HIGGINS, and ANDREW VELEZ-AVERA.  A review of the internet for publicly available information also shows Attorneys Schwartzberg, Higgins, and Velez-Avera all as being in the United States Trustee's Office in New York.

          These lawyers deserve credit and so does the DOJ for this decision.  Best of luck to them all, and to their fellow appellate practitioners  representing Certain Canadian First Nation and Metis People, Certain Canadian Municipalities, and the State of Maryland.

Please read the disclaimer.  ©2021 Dennis J. Wall.  All rights reserved.

CRUELTY FLOURISHES IN ANONYMITY. SO DOES DESTRUCTION OF CONSTITUTIONAL RIGHTS.

Cruelty flourishes in anonymity.  Vindictiveness is easier in a lynch mob when a person acting alone would not want to have others single out an individual person's behavior.

          It is like that when judges practice issuing unsigned orders without bothering to write opinions let alone sign them.  We have had a rash of unexplained, unsigned orders of late, and two examples came in the same case.

          Many commentators have pointed out that hiding behind unsigned opinions is cowardly.  That is not the subject of this article, and we will say no more about that here.

          Many commentators also write that it is hypocritical for judges to rule in favor of outcomes they desire, without taking responsibility -- or credit or blame, as the case may be -- for the outcomes.  That too is not the subject of this article, and we will not mention it here again.

          The first of the two examples of the practice comes from Texas.  A panel of judges appointed to the Fifth Circuit Court of Appeals ordered a trial judge not to hold a hearing.  The three people on the panel did not write an opinion, and did not sign their order.  They simply cancelled the hearing that another judge had ordered.

          The second of the two examples from the same case also comes from Texas.  Five of the justices on the U.S. supreme court let an infamous anti-abortion Texas law go into effect because there were doubts about the law's constitutionality.  This result was the opposite of what justices would do most of the time in such cases, even if the justices in question personally favored the constitutionally questionable State law.  In this case, though, the five did not even write an opinion, and they did not sign their order.

          Yet we know who they are; that is not the point.  The Fifth Circuit panel in question was headed by Elizabeth Jones, who has never stopped being a leader of her (minority) party.  She was joined by two others.  The Five supreme court members in question are named Alito, Barrett, Gorsuch, Kavanaugh, and Thomas.  So we know who they all are.

          But that is not the point.  The point is that they were supposed to behave as judges, and they did not.  They behaved as power brokers, wielding power for a minority view at that.  Perhaps that is why they stopped being judges and became power brokers.

          Both examples display that the core purpose of anonymity seems to have been a cloak for the elimination of previously recognized constitutional rights.

          In the Fifth Circuit example, the unsigned order eliminated Due Process by the expedient of cancelling a hearing; no-one has the opportunity to be heard when their hearing is cancelled.

          In the supreme court example, the unsigned order eliminated the constitutionally recognized right of a woman to be free from government interference in the early stages of her decision whether to give birth.  I am personally in favor of life, but I am not in favor of vindicating life by eliminating other people's rights.

          The Epistle of James was a part of last Sunday's services in my Church.  James' Epistle is translated in different ways when he wrote about people acting like judges and preferring people with fine clothes over poor people in their churches.  One translation has it that people acting in that way were acting like judges, "and corrupt judges at that."  Another translation has it that people acting in that way were "judges with evil designs."  Jas. 2:4.  Both translations fit these examples.

          There is a proper place in the legal system in place in the United States for short rulings by panels of judges that are not signed by the individual judges on the panel.  These are called "Per Curiam" decisions, meaning that they are decisions issued from the court as a whole.  They are reserved for decisions that are so clear that no opinion is necessary and no individual signature is required.

          They were never meant to be issued when decisions are not clear.

          They were never intended as places to hide.

          To borrow a Biblical phrase that seems apt, they were never meant to disguise evil designs.

Please read the disclaimer.  ©2021 Dennis J. Wall.  All rights reserved.

BARR's department 'ISN'T OVER, IT ISN'T EVEN PAST.'

MARK R. FREEMAN, Esquire has been a busy lawyer since 2014 when we started paying his salary with our federal taxes.  He joined the justice department that year.

          There are reports that in January 2020 he argued against the former guy's White House Counsel testifying under a subpoena from the U.S. House of Representatives.

          He definitely argued in January 2020 against unsealing the Mueller Grand Jury testimony and documents so that the House could see it all.

          It is unclear when he became the Director of the Appellate Section of the Civil Division at the
department of justice, but he holds that position now when MERRICK GARLAND is the Attorney General.

          In June 2021, MARK FREEMAN argued in a Reply Brief with his name on it, that the United States should be substituted for the former guy in E. Jean Carroll's lawsuit.  The doj did not have to appeal at all.  It will be remembered that Ms. Carroll sued the former guy for defamation when he called her a liar among other things after she said that the former guy raped her.

          A federal judge denied Bill Barr's motion and that's why there is an appeal.  If the motion had been granted, the United States would become the defendant and Ms. Carroll's lawsuit would be barred because you cannot sue the United States for defamation.

          FREEMAN's brief on the appeal continues to argue that the former guy was performing his official duties when he allegedly defamed Ms. Carroll.

          If the appeal is successful, then Ms. Carroll's lawsuit will be barred.  That is the reason for MARK FREEMAN's brief.  Ms. Carroll's lawsuit will be barred if it is successful.

          Despite media reports, there really is no reason to think that there is a new Attorney General in town.  The same policies are being advanced in -- and rejected in -- the Federal Courts.  See previous articles here, here, here, and here.

          There are many stories in the doj.  This has only been one of them.

This article is reprinted with permission from Claims and Issues Blog.

Please read the disclaimer.  ©2021 Dennis J. Wall.  All rights reserved.

   

ASK FOR RIGHT RELIEF, YOU MIGHT GET RIGHT ANSWER.

This article was previously published under the title, JUDGES WILL OFTEN TELL THEM TO STOP,  SO ASK!, on Claims and Issues Blog on Tuesday, July 6, 2021.  Reprinted here with permission.

(Gridview_imagefull/Florida Department of Agriculture and Consumer Services)

Recently some courts have ruled against equal laws.  It seems to me that these rulings depend more on the fact that the people who sued (to get taxpayer money paid to them instead of that money being paid to other people) asked the judges to tell the defendants to stop, instead of asking for damages.  I have said this before.

             In these cases, judges have issued TROs or Temporary Restraining Orders and Preliminary Injunctions stopping the Secretary of Agriculture from applying ARPA or American Recovery Plan Act eligibility requirements that gave preference to Black farmers over White farmers, at least at first, in Faust v. Vilsack, ___ F. Supp. 3d ___, No. 21-C-548, 2021 WL 2409729, at *5 (E.D. Wis. June 10, 2021), or stopping the Small Business Administration from considering applications for federal monies for 21 days from a restaurant revitilization fund provided under ARPA unless during those 21 days the applications were processed without regard to whether the applicants were White males, in Greer's Ranch Cafe v. Guzman, ___ F. Supp. 3d ___, No. 4:21-cv-00651-O, 2021 WL 2092995 (N.D. Tex. May 18, 2021). 

            More judges are ruling like this and so I say it again:  These rulings depend less on the lawyers involved in them and more on the fact that the plaintiffs in these cases, meaning the people who filed the lawsuits, asked the judges to tell the defendants to stop instead of asking for damages.

            A federal judge in Florida told the State to stop when the judge issued a preliminary injunction stopping the State from imposing fines and limits on people who petition to put proposed State constitutional amendments on the ballot.

            This ruling came right after another federal judge in Florida stopped the State from imposing penalties under a new Florida law that would require social media companies to let politicians say whatever they want to say on their websites.  The new Florida law would have allowed Florida to impose penalties up to a Quarter of a Million Dollars.  A day.

            Courts in Maryland are telling the State to stop withholding unemployment benefits from unemployed people during a pandemic.  These lawsuits have been heard at all three levels of courts in Maryland, from the trial court to the intermediate appellate court to the State's highest Court.

            Comfortable people did not file these lawsuits.  The people who filed them include individuals, and they include groups that did not exist before such as "the Unemployed Workers Union" and "the Baltimore-based Peoples Power Assembly."  Significantly, the plaintiffs apparently did not include political parties or established civil rights organizations or other entrenched interests.  These lawsuits were brought by people in Maryland who are affected by the Maryland Governor's  attempted order to force them to take jobs, any jobs.

            The Maryland trial judge was the first judge in these Maryland cases to hold that the State must stop what they were trying to do.  The trial judge issued a "temporary restraining order," effectively another name for a preliminary injunction.  One of the trial judge's reasons is instructive.  It should be followed in other States where governors are trying to block unemployment benefits and so force unemployed workers to take any job that the governors' campaign contributors condescend to give them.

            The Maryland trial judge ruled in part because the State governor "appeared to lack the authority to end the federal program early.  He added that the plaintiffs' stories of economic hardship reminded him that 'the impact of the pandemic has been cruelly uneven.'"  Katherine Shaver, Court Rejects Hogan Request to Block Order Preventing End of Enhanced Federal Unemployment Benefits, WASHINGTON POST, online Monday, July 5, 2021 (emphasis added).

            State governors may lack the authority to end the federal program early.

            Ending the federal program early may violate equal protection of the laws.

            These concepts are not limited to the pen of a trial judge in Maryland.  They apply in every State.  State Constitutions are based on them.  The Federal Constitution guarantees equal protection of the laws in all the States.

            Judges will tell them to stop.  So ask judges to tell them to stop.

Please read the disclaimer.  ©2021 Dennis J. Wall.  All rights reserved.

AT DEPARTMENT OF JUSTICE, EVERYTHING IS CHANGING, NOTHING IS NEW.

This article was first published on Claims and Issues Blog on Thursday, July 1, 2021.  Reprinted here with permission.

Download Brief of the United States in Trump v. Carroll 2d Cir Appeal Case No. 20.3977 filed June 7 2021

Brief of the United States of America in the case of E. Jean Carroll, Case No. 20-3977, Doc. 102, filed June 7, 2021.

One lesson of the last four+ years is clear:  People matter.  The people that make the decisions in our government matter.   Who the prosecutors are, matters.

            Whether we have a Department of Justice or a department of career young attorneys intent on CYA, depends on who is in the department.

            It also very much depends on who really runs the department.

            "Structural checks can be overrated.  The survival of our Republic depends as much, if not more, on the virtue of those in government, particularly the upholding of norms by civil servants, prosecutors and military officials.  We have grown too jaded about things like professionalism and institutions, and the idea of men and women who take their duties seriously.  But as every major moral tradition teaches, no external constraint can fully substitute for the personal compulsion to do what is right."  Tim Wu, What Really Saved the Republic From Trump?, NEW YORK TIMES, online Dec. 10, 2020.

             The personal compulsion to do what is right, the virtue of those in government, particularly the upholding of norms by civil servants:  Were these the characteristics on display of the people that we are looking at in the department of justice?

            Were these characteristics on display from them during the last four+ years?

            Are they on display now?

            Let's look for these characteristics, starting with the individuals featured in the first article in this series, IN MERRICK GARLAND'S DEPARTMENT, PROTECTING 'CAREER YOUNG ATTORNEYS' MEANS "CYA."

            JOSHUA M. SALZMAN.  This is the person who submitted the reply brief to continue Barr's appeal attempting to substitute the United States for the former guy in the lawsuit E. Jean Carroll filed.  She filed a defamation lawsuit after the F.G. allegedly defamed her by calling her a liar after she alleged he raped her.  The United States Department of Justice argued in SALZMAN's reply brief that the defamation was a part of the former guy's official duties.

            During the time of the F.G. and A.G. Barr, JOSHUA SALZMAN worked at Barr's law firm, the department of justice.  He did not always work there; MR. SALZMAN, like some of the others, used to be employed at MERRICK GARLAND'S law firm, WilmerHale. 

            During the time of the F.G. and A.G. Barr, MARK STERN also worked at Barr's law firm.  MARK B. STERN's name is also on the reply brief that MR. SALZMAN filed, appealing for the substitution of the United States in the F.G.'s role as defendant in E. Jean Carroll's lawsuit.

            If their appeal is successful, the United States will become the defendant in that lawsuit; the United States cannot be sued in that lawsuit.  If their appeal is successful, then, it will gut E. Jean Carroll's lawsuit against the former guy. 

            A third lawyer who takes credit for the reply brief in E. Jean Carroll's case is MARK R. FREEMAN.  He is the current Director of the Appellate Staff, Civil Division, in the justice department.  He, too, worked in A.G. Barr's department during the time of the F.G.  He, too, worked in MERRICK GARLAND's law firm before that.

            As we shall see in this series, among other things, MR. FREEMAN reportedly was instrumental in arguing that the F.G.'s General Counsel, Don McGahn, should not testify under subpoena from the U.S. House of Representatives.

            Last but not least, there is Acting Attorney General and MERRICK GARLAND's deputy, BRIAN M. BOYNTON.  He alone among the crew did not also work for the former guy or for A.G. Barr during the time that the F.G. was in office.  His background is in defending large corporations and other things and people -- including one Betsy DeVos, the F.G.'s Secretary of Education, as we shall also see in this series.

            MERRICK GARLAND is responsible for the decisions of these people.  Beyond and to the exclusion of every reasonable doubt, as they say, these are MERRICK GARLAND's decisions.

            There is no better way to conclude this article than by once again quoting from Professor Tim Wu's piece in The New York Times:

          It may sound naïve in our untrusting age to hope that people will care about ethics and professional duties. But Madison, too, saw the need for this trust. “There is a degree of depravity in mankind,” he wrote, but also “qualities in human nature which justify a certain portion of esteem and confidence.” A working republican government, he argued, “presupposes the existence of these qualities in a higher degree than any other form.”

           It is called civic virtue, and at the end of the day, there is no real alternative.

Please read the disclaimer.  This blog article ©2021 Dennis J. Wall.  All rights reserved.

BAD FAITH IN THE JUSTICE DEPARTMENT?

This article was originally published with the title, IN MERRICK GARLAND'S DEPARTMENT, PROTECTING 'CAREER YOUNG ATTORNEYS' MEANS "CYA," on Claims and Issues Blog, on Tuesday, June 29, 2021.

Part One, the first part.

Merrick Garland has been portrayed by the incoming administration as something he is not.  Demonstrably not.  To paraphrase the Acts of the Apostles, "you shall know them by their actions." 

          Not by what they say, or what others say about them.

          This is the first in a series.  In it, we will take a look together at the actual things being done by the current department of justice.  In the end, it is a puzzle why they continue to try to protect the things that were done by the previous regime.

    

 

   (Alexander Drago / Reuters)

           Our first example is the decision to continue the appeal to substitute the United States in the place of the former guy sued for defamation by E. Jean Carroll.  The former guy's regime, Bill Barr acting as Attorney General then, tried to substitute the United States for the F.G.  Federal Judge Lewis Kaplan thought about it, before he wrote a 61-page decision listing many, many reasons for denying the motion to substitute the United States to defend Ms. Carroll's defamation action.  It should not be forgotten that Ms. Carroll filed her defamation lawsuit in response to the F.G.'s vehement denial that he raped her.  (The F.G.'s vehemence included the charge that Ms. Carroll was lying, thus she filed the defamation lawsuit.)

           The F.G.'s Attorney General, Mr. Barr, filed an appeal from that ruling.  Then the F.G. and the A.G. left (kind of).  In came President Joe Biden and Merrick Garland to take their places.

 

 
   (Reuters)

           Merrick Garland decided to continue the appeal to substitute the United States for the former guy at taxpayer expense.  It is eye-opening to look at the lawyers who signed the reply brief attempting to substitute the U.S. for the F.G.  This is especially revealing after Mr. Garland's statements that he wants to protect 'career young attorneys' from thinking that what they did when they worked for Barr carries any consequences now.  Surely they must be protected, Mr. Garland said he believes.  Well, let's look at who is being protected now that we have looked at who is doing the protecting.

          The decision to continue the Barr justice department's appeal was taken by:

• BRIAN M. BOYNTON, Acting Assistant Attorney General;
• MARK R. FREEMAN;
• MARK B. STERN, and
• JOSHUA M. SALZMAN.

Three of these lawyers were at the Barr department of justice, following orders.

Three of these lawyers have worked at a law firm called WilmerHale.  So did MERRICK GARLAND. 

Three of these lawyers went to Harvard Law.  So did MERRICK GARLAND.

The three lawyers who went to Harvard Law all agreed to substitute the United States, at taxpayer expense, for the former guy in E. Jean Carroll's defamation lawsuit.  You might have expected something different from their conduct, considering that they each and all went to Harvard Law where they presumably took an Ethics course or two, but you would be wrong if you expected them to behave any differently than they actually did.

Parenthetically, Harvard Law comes up again here.  Judge Lewis Kaplan, who rejected the former guy's/Barr's motion to substitute, also went to Harvard Law.

           So here's the point.  It's not that WilmerHale or Harvard Law are either of them bad, per se.  The point instead is that neither Merrick Garland nor these lawyers are what they are portrayed to be.  "I was only following orders" was a defense that was rejected at Nuremberg circa 1945.  These men -- and they are all of them men, aren't they -- certainly do not need that defense for their actions.  It is equally certain that CYA is also a bad policy for the United States Department of Justice now.

Please read the disclaimer.  ©2021 Dennis J. Wall.  All rights reserved.

WHO, EXACTLY, DOES JUSTICE REPRESENT? PART TWO

A POSTSCRIPT:  The rest of the story.  Part of the rest, anyway.

Rights and Responsibilities.  (Florida Dep't of Agriculture & Consumer Services /  Gridview_imagefull)

The Federal Judge presiding over the Sweet v. DeVos case in the Northern District of California has held that Ms. DeVos has to sit for a deposition. 

          The Judge based his ruling at least in part on the bad faith of the government in disrupting the processing of claims to student debt relief:    "U.S. District Judge William Alsup found evidence of bad faith in the agency’s stated reasons for an 18-month halt in processing debt relief claims [which], among other factors, creates an extraordinary circumstance that warrants making DeVos sit down for a three-hour deposition."  Nicholas Iovino, Betsy DeVos Ordered to Testify in Student Borrower Class Action, COURTHOUSE NEWS, online May 20, 2021.

          Updating my article that posted this morning, "[o]n February 8, 2021 -- 19 days after the Inauguration of President Joe Biden -- Brian M. Boynton filed a motion to quash a subpoena for the deposition of Betsy DeVos."  Mr. Boynton is a new hire helping to run the Biden Justice Department under Merrick Garland.

          And, to say again, Mr. Boynton filed a motion to quash the deposition of the former regime's Betsy DeVos.

          He lost.  The motion was denied.  Absent Mr. Boynton's anticipated appeal on behalf of Ms. DeVos, she will have to sit for her deposition, under oath.  So far, Justice has prevailed in this case, but the department of justice has not.

Thanks to Margaret O'Grady, Esquire at Harvard who is a counsel of record in the Sweet v. DeVos case, and to Ms. Katie Ward of CTPBoston, for the linked Courthouse News Service reporting.

Please read the disclaimer.  ©2021 Dennis J. Wall.  All rights reserved.

WHO, EXACTLY, DOES JUSTICE REPRESENT?

Rights and Responsibilities.  (Florida Dep't of Agriculture & Consumer Services /  Gridview_imagefull)

On February 8, 2021 -- 19 days after the Inauguration of President Joe Biden -- Brian M. Boynton filed a motion to quash a subpoena for the deposition of Betsy DeVos.

           Mr. Boynton filed his motion in the Southern District of Florida, where DeVos was then "a part-time resident."  That was one of the places where, arguably, venue was proper for Boynton's motion to quash.  The case in which Betsy DeVos was subpoenaed for deposition is pending in the Northern District of California.

           Parenthetically, I cannot find an order granting or denying the motion, and I cannot find any evidence that Ms. DeVos has  been deposed.  I have today emailed the lead attorney who requested this deposition, Margaret E. O'Grady, Esquire and if and when I receive her Reply, I will write about it here.

          Back to Mr. Boynton.  More recently, on June 7, 2021 Brian Boynton filed a reply brief for the United States to intervene for the former guy in his appeal from an order allowing E. Jean Carroll's defamation lawsuit to go forward in New York State Court.  Her defamation lawsuit had been pending in state court before the former guy's Barr removed the case to federal court.

          Mr. Boynton was reportedly hired away from a large law firm with experience in representing corporate clients, in order to assist Merrick Garland in running the Justice Department.

          The actions discussed here, and other actions known and unknown, raise urgent questions.  First:  Who, exactly, does Justice represent?

          Next, why is it in the interest of the United States not to have the testimony of Betsy DeVos under oath?

          How is it that any lawyer can argue, without consequence, that denying a rape and demeaning the victim is a part of the official duties of a President of the United States?

          I did not expect to be asking any of these questions with Merrick Garland replacing Bill Barr and Joe Biden replacing the former guy. 

          Did you?

Please read the disclaimer.  ©2021 Dennis J. Wall.  All rights reserved.

GOODBYE 2020, WELCOME IN 2021!

Have a Happy New Year every day of the year to come!

P.S.

We've earned it!

 

POSTSCRIPT TO JURISDICTION.

(Sun Sentinel photograph)

In a postscript to yesterday's article on Jurisdiction, we now have further reports that clarify some of the earlier confusing reporting.  Apparently three lawsuits have been filed by the losing candidate's campaign so far, as previously reported.

           Two of those lawsuits were filed in State Court, not Federal Court, however.  One was filed in Georgia and the other was filed in Michigan.  Both have already been rejected by State Court Judges.

           The third and remaining lawsuit at this time was filed in Federal Court in Pennsylvania.  The announced purpose was to stop the counting of votes already cast.  The Federal Judge presiding over that case rejected that one, as well.  No word yet on the Federal Court's claim to jurisdiction, if any, over State Election Law.

Please read the disclaimer.  ©2020 Dennis J. Wall.  All rights reserved.

ARE PLAINTIFFS IN ELECTION CASES DEMANDING FEDERAL ACTIVISM, PREEMPTIVE JURISDICTION?

This article arises from the same common nucleus of operative facts, so to speak, out of which an earlier article published today also arises.

Recently filed elections cases have also caused me to wonder about Federal jurisdiction.

Are the plaintiffs in these elections cases asking Federal Judges to be activists and preempt the jurisdiction of State Courts over State Election Laws?  That seems to be the gist of the lawsuits I have seen reported to date.

There was a lawsuit filed in U.S. District Court in Texas, in which the same person or group of people reportedly filed the same lawsuit they had already lost in the Texas Supreme Court.  Each time the lawsuit challenged the legality of drive-through voting in Harris County (Houston).

Isn't the issue of legality of drive-through voting a matter for the Texas State Courts to decide?

Parenthetically, I understand that the same person or group of people who lost their case in the Texas Supreme Court also lost their case in the U.S. District Court and then they lost again in the Federal Appellate Court.

Different people have filed their own lawsuits which are basically one lawsuit as well, but these people have filed in different States, all in Federal Court.  They have so far filed their lawsuit in Georgia, Pennsylvania, and Wisconsin.

The same losing candidate's campaign organization has reportedly filed three times, once in each of three Federal Courts.  It is confusing.  Apparently two of these same lawsuits were filed to stop counting votes and the third was filed for a re-count.

Isn't the issue of applying State Election Law an issue for State Court Judges to decide? 

I am going to look into the jurisdictional basis if any for asking Federal Courts to preemptively and actively exercise jurisdiction so as to impose their own views of local Election Law in these States.  As I wrote today in the earlier article also arising out of these developments, let's all of us keep an eye on the lawsuits being filed, and on who files them and who pays for them.

Assessing "bad faith" attorney's fees and sanctions, along with many situations requiring good faith and fair dealing, are discussed in § 2:7 in 1 Dennis J. Wall, Litigation and Prevention of Insurer Bad Faith (3d ed. and 2020 Supps. Thomson Reuters West).  Attorney's fees awarded in a variety of cases are the subject of §§ 13:12 -13:14 in Volume 2, id.

Please read the disclaimer.  ©2020 Dennis J. Wall.  All rights reserved.

"BAD FAITH" ATTORNEY'S FEES EXPOSURE: LITIGIOUS PLAINTIFFS IN ELECTION CASES?

(Photograph Brennan Linsley / Associated Press)

Recently filed litigation has caused me to wonder about "bad faith" attorney's fees liability.  First, let me describe the lawsuits that have caused the wondering.

In Texas, the same person or group of people reportedly filed the same lawsuit more than once challenging the legality of drive-through voting in Harris County (Houston).  They filed in Texas State Court to begin with, ultimately losing at every level all the way to the Supreme Court of Texas, according to the confusing reporting.  Then they filed in a U.S. District Court in Texas and they lost there.  Then they filed an appeal to the Fifth Circuit Court of Appeals.  My understanding is that they lost again there.

Other people have also filed their own "one-note" lawsuit but in different States, all in Federal Court.  In Georgia, Pennsylvania, and Wisconsin there is a lawsuit filed in a Federal District Court in each state by the losing candidate.   The same losing candidate filed in each.  It is confusing, at least before looking more closely at each of these lawsuits, but apparently two are to stop counting votes and the third is for a re-count.  Presumably the votes have already been counted once before the recount litigation was filed, or else there could not be a "recount" yet, but as I say, the reports are confusing.

I want to temporarily put aside the question of Federal jurisdiction to adjudicate State election matters, and concentrate here on the issue of exposure to "bad faith" attorney's fees in Federal Court.

Having laid out the facts for the moment, here now is the law.  My understanding has long been that there can be exposure under Federal Rule of Civil Procedure 11, under Federal Appellate Rules and under State Court equivalents for parties and their lawyers for bad faith in litigation.

Did the defendants and their lawyers even request attorney's fees in any of these cases for having to go through a "Groundhog Day" kind of litigation?

Parenthetically, if they did not request attorney's fees, did they request some kind of sanctions for this conduct?  I am not asking why the Courts did not assess attorney's fees or sanctions; I wonder if the defendants and their lawyers even asked for them.  Why should the defendants have to bear the full burden of their attorney's fees for repeatedly having to defend the same losing propositions?

I am going to look into this exposure in more detail.  In the interim, let's all of us keep an eye on the lawsuits being filed, and on who files them and who pays for them.

Assessing "bad faith" attorney's fees and sanctions, along with many situations requiring good faith and fair dealing, are discussed in § 2:7 in 1 Dennis J. Wall, Litigation and Prevention of Insurer Bad Faith (3d ed. and 2020 Supps. Thomson Reuters West).  Attorney's fees awarded in a variety of cases are the subject of §§ 13:12 -13:14 in Volume 2, id.

Please read the disclaimer.  ©2020 Dennis J. Wall.  All rights reserved.

THANK YOU FOR VOTING!

Many people never got the chance we have to vote.  But without them, our votes would not be possible.  We remember them and honor them every time we vote.

Thank you for being a voter.

 

Photo courtesy of Common Ground.

Please read the disclaimer.  ©2020 Dennis J. Wall.  All rights reserved.

 

MORE RESOURCES, MORE VOLUNTEER OPPORTUNITIES FOR PROTECTING THE VOTE!

And now a message from the Common Ground Project in Florida:  More resources, more volunteer opportunities for protecting the vote!

(Common Ground Project)

Defend Democracy:

Poll monitors needed!

Can we count on you?

The Common Ground Project is looking for volunteers to assist in our Poll Monitoring and Election Protection Program. This is a large statewide initiative led by our coalition partners: Common Cause, State Voices, and Florida for All. The Common Ground Project is committed to ensuring that all voters have safe and accessible access to casting their ballots and having their voices heard on November 3rd. We are in need of volunteers!

Please join us for this critical work to protect our election. We look forward to working with you as a leader in your community!

Please register to be a poll worker and sign up for one of the following upcoming training opportunities:

• Friday, October 30th at 6 PM
• Saturday, October 31st at 12 PM

As always, please do not hesitate to reach out if you have any questions!

Regards,

Lisa Perry

REGISTER

‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ 

Please read the disclaimer.  This blog article ©2020 Dennis J. Wall.  All rights reserved.

TRUST THE VOTE.

And now, a message from Election Protection.  Trust the Vote.

We care about the integrity of our elections and love when election officials quickly fix errors. Some politicians use these errors to make us feel that our votes won’t count. Do not let this affect our confidence in our system or our willingness to vote. #VoteReady.

Please read the disclaimer.  This blog article ©2020 Dennis J. Wall.  All rights reserved.

AMERICAN BAR ASSOCIATION ANNOUNCES FINANCIAL INCENTIVE FOR LAWYERS ASSISTING VOTERS.

(American Bar Association)

In an email received this morning, the American Bar Association announced it is offering a financial incentive to lawyers who assist voters at this time.  Here is the ABA's announcement:

Volunteering at the polls is an important civic duty that lawyers are especially suited for given the profession's long tradition of civil service. This November, the ABA and MyCase are partnering to give ABA members who volunteer during the general election a $50 credit to ShopABA for their service. Whether you have already volunteered at your local polling place, or plan to volunteer on election day, November 3, you can earn a $50 credit towards books, webinars, CLE and other purchases in ShopABA.*

Register your service by November 6, 2020.

Please read the disclaimer.  This blog article ©2020 Dennis J. Wall.  All rights reserved.

DON'T BE AFRAID, VOTE!

(Photo by Ilene Vegazo.  Used with permission of the artist.)

MEMO TO LAWYERS:  As a lawyer, your clients look to you as a leader. When they ask you about voting, your clients are interested in how they can vote. Be a leader. Familiarize yourself with Florida's voting laws, enough at least to guide your clients on how to engage the voting process.

Which is not the same as telling your clients how they should vote! Everyone has their own opinions about that & respectfully, your clients do not think your opinions are special that way. But clients do look to you for help negotiating the process. Thank you for being a voter.

MEMO TO EVERYONE:

Early Voting began in Florida October 19. Early Voting continues through Saturday, October 31. The Election as you know is on Tuesday, November 3.

Remember to vote!

Please read the disclaimer.  ©2020 Dennis J. Wall.  All rights reserved.

RESOURCES TO PROTECT THE VOTE THIS YEAR.

 

(Brynn Anderson / Associated Press)

Want to help protect the vote this year, but unsure of where to go or what to do?  Here is a list of contacts for places and sources that can help answer your questions.

ELECTION PROTECTION.  This is an umbrella of many different organizations that all have different pieces of election protection, such as Poll Monitors, Social Media Monitors, Legal Volunteers, and On-Call Legal Support, among others.  Telephone 1-866-OUR-VOTE or email grassroots@commoncause.org.

POSTCARDS TO VOTERS.  Just like it sounds, volunteers write postcards with messages provided by campaigns that have signed up with PTV, to addresses that are anonymous as far as names; only mailing addresses are provided.  Volunteers mail postcards on their own dime, so to speak.  For more information, visit www.postcardstovoters.org.

FLORIDA RESTORATION OF RIGHTS COALITION.  You may have heard about this group which works with registering returning citizens to vote.  To find out about their current activities, email them at info@floridarrc.com.

ADOPT A STATE - VOTE SAVE AMERICA.  This group offers ways to contact voters especially in 6 targeted States in which voters will likely affect the outcome of the Election.  Their Email Address is votesaveamerica@crooked.com.

Best of luck and use your best judgment in evaluating these groups, what they have to offer, and your place in it all.

Please read the disclaimer.  ©2020 Dennis J. Wall.  All rights reserved.

Voting in a Pandemic of Misinformation, i.e., Lies.

A WORD ABOUT VOTING DISINFORMATION FROM ELECTION PROTECTION:

If you see disinformation about voting in an online post or ad, do your part to stop the spread. Don’t engage, react or comment — that only means more people will see it! Do take a screenshot to submit it to ReportDisinfo.org. Then share official voting information, like your local election official or Secretary of State. Do your part to keep voters safe from disinformation! Need help voting or need to report a problem? Call or text 1-866-OUR-VOTE.

Please read the disclaimer.  Blog article ©2020 Dennis J. Wall.  All rights reserved.

VOTE, LAWYERS AND PEOPLE, VOTE!

Here for ease of reference is another article from Election Protection:

A politician is suggesting people vote twice to “test the system.” This is to create confusion and is against the law. You MUST choose 1 way to vote and should make a plan to vote now. Vote by mail is a safe, secure, and trackable way to vote. #ProtectOurVote #VeYVota #YallaVote

 

The telephone number on the image may be a little hard to read.  It is 1-866-OUR-VOTE.

Please read the disclaimer.  Blog article ©2020 Dennis J. Wall.  All rights reserved.

PARTICIPATE IN DEMOCRACY:  VOTE!

Between now and Election Day (one week from today) Claims and Bad Faith will concentrate on the upcoming Election and voting.  For starters, here is an article which we post from the Election Protection coalition:

Vote by Mail is Safe and Secure

Certain politicians want you to think vote-by-mail will lead to ballot manipulation. The truth is they don’t want people to vote-by-mail because they think it will hurt their chances at the polls. In the states that have transitioned to all mail-in ballots, there has been no evidence of a partisan advantage for either side. Having the option to vote-by-mail is critical to ensuring the health and safety of every eligible voter. Read more here: https://www.nytimes.com/2020/04/10/us/politics/vote-by-mail.html Call or text 866-OUR-VOTE for nonpartisan help if you have questions.   

Please read the disclaimer.  Blog article ©2020 Dennis J. Wall.  All rights reserved.

WILL THE AFFORDABLE CARE ACT SURVIVE THE S. CT?

(Judge Amy Coney Barrett / University of Notre Dame)

The continued existence of a federal health care system is in the hands of the unelected judges on the U.S. Supreme Court.  They have voted to defer oral arguments on the Affordable Care Act until after the election in November.

    Judge Amy Coney Barrett has been declared "the front runner" by the media to be nominated for the present U.S. Supreme Court vacancy.  That would make her the seventh self-identified "Catholic" on the Supreme Court by my count.

    Parenthetically, the media has also labelled several of these people "devout Catholic" and "faithful Catholic" based largely on their self-descriptions.

    In the particular case of Amy Coney Barrett, there is a question regarding the Affordable Care Act that arises from her self-identification with Catholicism.  Ordinarily (if that word still applies in 2020), a person's religion is not a proper subject for questions.   But this person is a judge who wants to be a Justice and because she advertises herself or allows herself to be advertised as a "conservative Catholic," she is also the declared "front runner," so in this case it is perfectly proper to ask what it means to her to say she is a Catholic.  It is not only proper, it is relevant.  It is material.

    Take it from the Executive Editor of THE NATIONAL CATHOLIC REPORTER in this interview broadcast on Wed., September 23, 2020:

And the Catholic Church in the United States has long supported the Affordable Care Act, especially after the accommodations were made for Catholic employers that didn’t want to provide contraceptive coverage. So, it will be interesting to see if she sides with church leaders on that one or not. 

"Interesting," certainly.  Determinative, possibly.

Please read the disclaimer.  ©2020 Dennis J. Wall.  All rights reserved.

BAD FAITH IN ARMED OCCUPATION.

"NEVER, EVER BE AFRAID TO MAKE SOME NOISE AND GET IN GOOD TROUBLE, NECESSARY TROUBLE."*

 

AN OPEN MEMORANDUM:

TO:  THE HONORABLE ELLEN ROSENBLUM, ATTORNEY GENERAL OF THE STATE OF OREGON.

FROM:           DENNIS J. WALL.

DATE:            SUNDAY, JULY 19, 2020.

RE:  WHETHER FEDERAL CUSTOMS AND BORDER PROTECTION ("CBP"), A UNIT OF THE DEPARTMENT OF HOMELAND SECURITY, HAS THE POWER OF ARREST ON THE STREETS OF PORTLAND, OREGON.

Unless and until determined to the contrary by a court of competent jurisdiction, the answer to the question posed above almost certainly seems to be "no," the CBP simply does not have the power of arrest on the streets of Portland, Oregon.  No federal statute has ever conferred the power of arrest on the CBP other than to enforce the customs laws of the federal government.

            It is settled in the Federal Circuit that includes Oregon, that customs agents are "not, like local or state police, general guardians of the public peace."  Customs agents have "duties and powers" authorized by statutes:  In the course of enforcing customs law, they are statutorily authorized to stop vehicles and board vessels, examine them, and make arrests.  United States v. Jackson, 423 F.2d 506, 508 (9th Cir.), cert. denied, 400 U.S. 823, 91 S. Ct. 44 (1970).

            The recent actions of federal agents on the streets of Portland, Oregon, as reported in the newspapers and other media, do not appear to fall within any of the statutory provisions under which the CBP has been given the power of arrest.

            It is noteworthy, moreover, that even when customs agents are acting within their  statutory authority, for example to in effect seize statutorily prohibited contraband, the only  immunity conferred by statute from civil damages that has been found is when "as a result of such search if the officer or employee performed the search in good faith and used reasonable means while effectuating such search."  19 U.S.C.A. § 482(b).

            This memorandum is concise and to the point, and the answer is not complicated.  To say it again:  Unless and until determined to the contrary by a court of competent jurisdiction, the answer to the question posed above almost certainly seems to be "no," the CBP simply does not have the power of arrest on the streets of Portland, Oregon.

            No research into Oregon laws or into ordinances of Multnomah County or the City of Portland has been included in this research.  This is a question of federal law only.  Therefore, it has been addressed as such in this Memorandum, i.e., only federal law has been consulted in the preparation of this Memorandum.

            Moreover, there is no charge for the preparation of this Memorandum.  Use this research as you may be advised.  "When you see something that is not right, not just, not fair, you have a moral obligation to say something.  To do something."*Rep. John Lewis

 

LENDER FORCE-PLACED INSURANCE: THE FLORIDA BAR NEWS LETTERS EDITION.

In the middle of writing the 2020 Supplements to my book, LITIGATION AND PREVENTION OF INSURER BAD FAITH (3d Edition published by Thomson Reuters West), I also wrote a Letter to the Editor of The Florida Bar News about the consequences of the last stimulus bill on insurance premiums force-placed on homeowners.  So proud that The Florida Bar News published my letter, accessible here (it's the second one down on this link).

Please read the disclaimer. ©2020 Dennis J. Wall.  All rights reserved.

JUDGE AMY BERMAN JACKSON, WHAT IS YOUR SENTENCE NOW?

This post is updated and changed here from Claims and Issues Blog, where it originally appeared on Wednesday, February 12, 2020.

William Barr's Justice Department has withdrawn its own prosecutors' sentence recommendations for convicted felon Roger Stone. Instead of 7 to 9 years behind bars, Mr. Barr objects. He leaves the substituted recommendation open-ended without committing to anything beyond leaving the sentencing decision to the judge, who will have the final say in any event.

That happened on Tuesday.  On Wednesday, the federal judge presiding over Roger Stone's case was reportedly attacked on Twitter.  As one commentator observed, 'The Marshal's Service will be very busy now, protecting Judge Amy Berman Jackson from physical harm.'  Here is the report in the Washington Post.

This was not an ambiguous criminal case. It was clear from the start to everyone involved. The jury in Mr. Stone's case deliberated for only seven hours before they returned convictions on every count, every charge against Mr. Stone.

"In their initial sentencing memorandum federal prosecutors said that Mr. Stone should serve up to nine years because he threated a witness with bodily harm, deceived congressional investigators and carried out an extensive, deliberate, illegal scheme that included repeatedly lying under oath and forging documents." Katie Benner, Sharon LaFraniere, and Adam Goldman, Justice Dept. Acts to Ease Sentence ... / 4 U.S. Prosecutors Quit Stone Case After Bosses Step In to Overrule Them, NEW YORK TIMES, Wed., Feb. 12, 2020, at A1.

After his indictment and before he was tried, Mr. Stone reportedly also violated the Court's gag orders against speaking out and threatened Judge Amy Berman Jackson, the judge presiding over his criminal case. She is also the judge who will sentence him following his convictions.

One of Mr. Stone's defenses to all this is that Mr. Stone was once riddled with anxiety but that he is much better now, the New York Times reports.

So, Judge Amy Berman Jackson, what sentence if any will you impose for these crimes? "Our nation turns its lonely eyes to you."

Please read the disclaimer. ©2020 Dennis J. Wall. All rights reserved.

RULES FOR A "NO-SHOW" TRIAL.

This is a special edition of Claims and Bad Faith Law. This article is about bad faith without a system of justice.

The U.S. Constitution requires a "Trial" once the president is impeached. The Constitution does not say how to conduct that Trial.

The leaders in charge of the U.S. Senate have stepped into the vacuum and supplied rules. They use the word "Trial," and it will not be like a "show trial" under Stalin. It will be a "no-show trial" under McConnell.

The leaders proposed their Trial rules at 6:00 on the evening of a national holiday before the "Trial" would begin the next day. They have known for weeks that they would have to define rules for the Trial. The leaders have talked about using the Clinton Impeachment Rules as a model. If they had wanted, they could have done a Global Find and Replace "Clinton." With that, you're pretty much done, so it's on to the Trial from there.

That is not what the leaders did, though. Their proposed marathon rules allow opening statements to begin today, Tuesday, January 21, 2020 and to wrap up the opening statements long before the week is over. They require opening statements to be delivered in marathon sessions of 12 hours a side over 2 days. In redefining a Trial to mean a no-show Trial, they have also redefined what a "day" means.

The Senate will stay in session each day until the next day to complete that day, so a "day" means that they will complete the opening statements within 12 consecutive hours even if they begin at say 1:00 PM and they end after Midnight and go into the following calendar day.

Their proposed rules do not call for anything but opening statements. They do not commit to considering evidence. They require a separate vote to consider even the evidence from the House impeachment proceedings, i.e., to consider the reasons that we are even in the Senate for a constitutionally required Trial.

That takes care of the old evidence. The proposed rules do not provide for any new evidence at all.

The proposed rules do not even address consideration of new witness testimony or documentary evidence. Under these rules, U.S. Senators would not have to listen to any testimony or read any documents.

The leaders propose that their no-show Trial will not show up to be seen or heard by the American people, either. The press in particular will be required to do their reporting from a pen away from whatever is going on in the Senate. Have you ever attended a political rally and seen the press in pens? It will be like that.

Television coverage if any will be like C-Span is now. The camera will be rigid and focused on the speaker. It will not show what else is going on in the chamber. (The Senate Chamber is mostly empty during proceedings now, and the C-Span cameras are certainly not allowed to show that, for example.) The single television camera that the leaders allow will be focused on what the powerful want you to see of their power.

The leaders have called for a fast acquittal. They want to wrap up the whole thing before the State of the Union, which is scheduled for February 4th. Parenthetically, can they arrange things such that the no-show Trial actually wraps everything up that day so that the leaders can declare an "exoneration" that night?

These arrangements look like reverse engineering. Someone perhaps started with the idea of a no-show Trial and worked backwards from there on how to achieve it. Again, these rules are proposed for the opposite of a show trial under Stalin. They propose instead a no-show Trial.

I had thought about writing this article that way. That is, I would break down the no-show Trial, deconstruct it. But I recognized that you are capable of delivering your own verdict, of reaching your own judgment, once you are presented with the evidence.

Unlike the person or persons who wrote these proposed rules for a no-show Trial.

Mitch, today is the day in January that you lost your majority in November.

Please Read The Disclaimer. ©2020 Dennis J. Wall. All Rights Reserved.