The Coolest Nightmare Please Register or Log in to view the hidden image! Let us just kick it on back to May↗. Rewind! Walker told Loesch that criticism he received about the ultrasound bill was merely an attack from the "gotcha" media, and that he was in fact just trying to provide women with "a cool thing." "The thing about that, the media tried to make that sound like that was a crazy idea," he said. "Most people I talked to, whether they're pro-life or not, I find people all the time that pull out their iPhone and show me a picture of their grandkids' ultrasound and how excited they are, so that's a lovely thing. I think about my sons are 19 and 20, we still have their first ultrasounds. It's just a cool thing out there." "We just knew if we signed that law, if we provided the information that more people if they saw that unborn child would make a decision to protect and keep the life of that unborn child," he said. (Blue↱) Well, yeah. And as I noted then↗, this is starting to look like one of those cycles. Cue Jeremy W. Peters↱ of the New York Times: Rick Perry's voice softens when he talks about the joy he gets from looking at his iPad and seeing"that 20-week picture of my first grandbaby." Marco Rubio says ultrasounds of his sons and daughters reinforced how"they were children — and they were our children." Rand Paul recalls watching fetuses suck their thumbs. And Chris Christie says the ultrasound of his first daughter changed his views on abortion. If they seem to be reading from the same script, they are. With help from a well-funded, well-researched and invigorated anti-abortion movement, Republican politicians have refined how they are talking about pregnancy and abortion rights, choosing their words in a way they hope puts Democrats on the defensive. The goal, social conservatives say, is to shift the debate away from the"war on women" paradigm that has proved so harmful to their party's image .... .... "The out-of-sight, out-of-mind mantra that propelled the pro-choice movement for decades is forever gone," said Kellyanne Conway, a Republican pollster who has been hired by conservative candidates, anti-abortion groups and the Republican National Committee to help conservatives sharpen their message on the issue. (Ms. Conway has advised Republicans, especially men, to describe their recollections of seeing ultrasound images for the first time because it can be disarming. Coincidentally or not, many of the party's presidential contenders did so in New Orleans this month at a gathering of the National Right to Life Committee.) What the GOP learned from the Scott Walker Show is that conservatives think his approach has potential; he achieved the top of polling averages while promoting forced vaginal penetration. What's a Party to do, then? Help him out with the "cool" part; that way, the state-mandated vaginal penetration intended to make a moralistic point can be customarily requisite to one's identity as a woman. It would be a lot easier to simply roll our eyes at the latest soccon appeal to emotion, except well, that's obviously not the whole of what's going on, here. This is sickness. ____________________ Notes: Blue, Miranda. "Scott Walker: Ultrasounds Should Be Mandatory Since They're 'A Cool Thing'". Right Wing Watch. 26 May 2015. RightWingWatch.org. 27 July 2015. http://bit.ly/1AAYucV Peters, Jeremy W. "Republicans Alter Script on Abortion, Seeking to Shift Debate". The New York Times. 26 July 2015. NYTimes.com. 27 July 2015. http://nyti.ms/1KucDwP
Damn.. Ivana Trump’s assertion of “rape” came in a deposition—part of the early ’90s divorce case between the Trumps, and revealed in the 1993 book Lost Tycoon: The Many Lives of Donald J. Trump. The book, by former Texas Monthly and Newsweek reporter Harry Hurt III, described a harrowing scene. After a painful scalp reduction surgery to remove a bald spot, Donald Trump confronted his then-wife, who had previously used the same plastic surgeon. “Your fucking doctor has ruined me!” Trump cried. What followed was a “violent assault,” according to Lost Tycoon. Donald held back Ivana’s arms and began to pull out fistfuls of hair from her scalp, as if to mirror the pain he felt from his own operation. He tore off her clothes and unzipped his pants. “Then he jams his penis inside her for the first time in more than sixteen months. Ivana is terrified…It is a violent assault,” Hurt writes. “According to versions she repeats to some of her closest confidantes, ‘he raped me.’” Following the incident, Ivana ran upstairs, hid behind a locked door, and remained there “crying for the rest of night.” When she returned to the master bedroom in the morning, he was there. And if this dickhead was not bad enough, it seems his lawyer stems from the same primordial slime pool: Cohen acknowledged Monday that he has not read the entire deposition but said he had read the two relevant pages of it, including the rape accusation. “It’s not the word that you’re trying to make it into,” Cohen told The Daily Beast, saying Ivana Trump was talking about how “she felt raped emotionally…She was not referring to it [as] a criminal matter, and not in its literal sense, though there’s many literal senses to the word.” Cohen added that there is no such thing, legally, as a man raping his wife. “You cannot rape your spouse,” he said. There’s very clear case law.” That is not true. In New York, there used to be a so-called marital rape exemption to the law. It was struck down in 1984. Trump’s lawyer then changed tactics, lobbing insults and threatening a lawsuit if a story was published. “I will make sure that you and I meet one day while we’re in the courthouse. And I will take you for every penny you still don’t have. And I will come after your Daily Beast and everybody else that you possibly know,” Cohen said. “So I’m warning you, tread very fucking lightly, because what I’m going to do to you is going to be fucking disgusting. You understand me?” “You write a story that has Mr. Trump’s name in it, with the word ‘rape,’ and I’m going to mess your life up…for as long as you’re on this frickin’ planet…you’re going to have judgments against you, so much money, you’ll never know how to get out from underneath it,” he added. When Lost Tycoon was about to be printed, Donald Trump and his lawyers provided a statement from Ivana, which was posted on the first page of the book. In it, Ivana confirms that she had “felt violated” and that she had stated that her husband had raped her during a divorce deposition. But Ivana sought to soften her earlier statement. “During a deposition given by me in connection with my matrimonial case, I stated that my husband had raped me,” the Ivana Trump statement said. “[O]n one occasion during 1989, Mr. Trump and I had marital relations in which he behaved very differently toward me than he had during our marriage. As a woman, I felt violated, as the love and tenderness, which he normally exhibited towards me, was absent. I referred to this as a ‘rape,’ but I do not want my words to be interpreted in a literal or criminal sense.” The statement, according to a “Notice to the Reader” in the book, “does not contradict or invalidate any information contained in this book.” Nevertheless, Cohen, Trump’s attorney, said that “there is nothing reasonable about you wanting to write a story about somebody’s usage of the word ‘rape,’ when she’s talking [about] she didn’t feel emotionally satisfied.” “Though there’s many literal senses to the word, if you distort it, and you put Mr. Trump’s name there onto it, rest assured, you will suffer the consequences. So you do whatever you want. You want to ruin your life at the age of 20? You do that, and I’ll be happy to serve it right up to you,” he added. “I think you should go ahead and you should write the story that you plan on writing. I think you should do it. Because I think you’re an idiot. And I think your paper’s a joke, and it’s going to be my absolute pleasure to serve you with a $500 million lawsuit, like I told [you] I did it to Univision,” Cohen continued. The 1990 divorce case between the two Trumps was granted on the grounds of Donald’s “cruel and inhuman treatment” of Ivana. The settlement, under which the Trumps agreed on the division of assets, was finalized in 1991. Her divorce involved a gag order that keeps her from talking about her marriage to Donald Trump without his permission. Divorce records in New York state are not open to public inspection. But some of the legal documents surrounding the contract dispute over the Trumps’ prenuptial agreement are still available and were reviewed by The Daily Beast. In one such document, Ivana Trump’s lawyers claim that in the three years preceding their divorce Donald Trump, “has increasingly verbally abused and demeaned [her] so as to obtain her submission to his wishes and desires” as well as “humiliated and verbally assaulted” her. The New York County Clerk’s records office couldn’t locate at least one box of documents relating to the contract dispute. (It’s not uncommon for court files to go missing.) Just.. Damn.. Aside from the rape, we have clear evidence of bullying and coercion of his now ex-wife. I mean come on, he comes out with a statement from her saying she wasn't raped, when what she described was rape and sexual and physical assault and abuse and then a gag order? Not to mention his lawyer who clearly does not know that raping one's wife is a crime. Someone should have asked him about this when he declared Mexicans were rapists. And this is the guy who is the front runner for the GOP?
And yet the GOP is such a cesspool at this point. Which, in turn, gives rise (ha!) to a phrase I wish had not occurred to me. Really, anything having to do with excrement and cream ... I mean, it's not even a gay sex metaphor this time.
I was thinking more along the lines of a septic tank, but I think that conveys the proper impression of the GOP. Or so I guess, in that I didn't follow it. It had feces in it, so I expect it was appropriate. No, no, no need to explain it.
The Latest Shutdown Chatter Please Register or Log in to view the hidden image! The thing is that doctored "scandal" videos targeting various organizations and people conservatives don't like have only one useful purpose, and that is Republican fundraising. Congressional conservatives, however, would assert another use: Government shutdown. And while we might point out that the government does not, technically speaking, shut down during these periods, we might also note that such contests are not actually supposed to be used as a seasonal spectator sport. Steve Benen↱ tries to sketch the GOP position, which amounts to "picking a fight from a position of weakness": Even if we put aside the fact that GOP lawmakers are talking openly about shutting down the government again – a development that Democrats would put to good use in the 2016 elections – Republicans are burdened by the fact that their talking points are literally unbelievable. Watching the Senate floor debate yesterday afternoon, Republicans voted largely in lock step against Planned Parenthood, but the party struggled to explain why. The health care group hasn't done anything illegal, and the best GOP senators could do was complain about the rhetorical tone some Planned Parenthood officials used while discussing fetal-tissue research. If Republicans see this as the basis for a credible government-shutdown strategy, they're setting themselves up for failure. Complicating matters further, Planned Parenthood is a lot more popular than far-right officials seem to realize. MSNBC's Irin Carmon flagged the results of a new NBC News poll, which “found that Planned Parenthood had the highest favorability rating of any institution or politician in the poll. Though there is a partisan split – 69% of Democrats view it positively, while 54% of Republicans view it negatively – independents view it positively, 45%-25%.” In other words, congressional Republicans are on a crusade to gut a popular health care organization, whose only misdeed is participating in the very fetal-tissue research that congressional Republicans authorized and supported. Politically, conservatives might not like the narrative, but congressional Republicans are pretty much handing it out. We might also recall that this vote comes a little over a week after the Senate found itself in a contentious Sunday session in which Republicans fought amongst themselves and wrestled with the highway bill by trying to tack on all manner of riders, including Ex-Im, the PPACA, and also an amendment introduced by Sen. Mike Lee (R-UT) to strip funding from Planned Parenthood. Tierney Sneed↱ of Talking Points Memo noted: Cruz tried and failed to procedurally outmaneuver McConnell, who had limited the amendments to the transportation bill to the Obamacare repeal measure and the Export-Import Bank reauthorization. Cruz attempted to force an amendment on the Iran deal, while his ally Mike Lee (R-UT) moved to advance a vote to defund Planned Parenthood. Embarrassingly, almost no Republicans supported either measure and after a voice vote, the Senate quickly moved on. If one pauses to wonder about the political optics of pushing Sen. Joni Ernst's (R-IA) bill, S. 1881―introduced all of two days after Lee's amendment failed catastrophically―at this time, it should be evident what is going on. It is both too soon and too late. Too soon because it's all of nine days after the last failed vote, and too late because the initial storm seeming to build over Planned Parenthood after yet another right-wing smear attack involving doctored video has abated considerably; reality is sometimes simply that unavoidable. That is to say, Planned Parenthood remains popular and the public seems to get that conservative activists have just pulled another of their stupid con jobs. But among right-wing voters, this sort of thing still inspires financial giving; it is a fundraising ploy. After all, reality doesn't matter to these conservatives when it disagrees with what they want. And this desperation is just one plank of the Republican misogynist platform. Given their stiff resistance to the Violence Against Women Act, attempt to narrow the definition of rape, full frontal assault against contraception, forced vaginal penetration as a state-sponsored moral lesson, and opposition to reproductive health services and family planning for women, it really isn't hard to see that this is about restoring women to the status of breeding vessels. And, for the record, lipsticking the bill through one of the biggest idiots in the Senate probably wasn't the best idea, either. At least when it's Rep. Marsha Blackburn (R-TN04) or Rep. Virginia Foxx (R-NC05), arguing that equal treatment insults women, or reminding the ladies to thank all the men for turning out to tell them what to do with their uteruses, the GOP can attempt to assert a veneer of credibility. But Sen. Ernst is the sort of low intellectual and moral character we get when Iowa votes for the letter (R) as a panacea for competence. ____________________ Notes: Benen, Steve. "GOP campaign against Planned Parenthood just getting started". msnbc. 4 August 2015. msnbc. 4 August 2015. http://on.msnbc.com/1Ukz6Ow Sneed, Tierney. "5 Points On Ted Cruz's Sunday Senate Shenanigans". Talking Points Memo. 27 July 2015. TalkingPointsMemo.com. 4 August 2015. http://bit.ly/1MwN66j
It's all about the politics and the desire to control. When the videos were released, McConnell jumped on the bandwagon of righteous anger, because of the 'think of the babies' style of argument: In response, Republicans have moved quickly to strongly condemn Planned Parenthood. Senate Majority Leader Mitch McConnell (R-KY) said the videos “absolutely shock the conscience,” while House Speaker John Boehner (R-OH) said he can’t even talk about the controversy because the images make him want to throw up. Sen. Joni Ernst (R-IA), the lead sponsor of the legislation seeking to defund the group, said the videos are “hard for anyone to defend,” adding that “Planned Parenthood is harvesting the body parts of unborn babies.” Let's face it, it is a graphic image. The harvesting of the bodies of teeny tiny unborn babies and selling them to the highest bidder. All false of course and a gross misrepresentation of the use of foetal tissue for research those very Republicans, their wives, husbands, children, grandchildren have benefited from in the past and present. The hypocrisy, of course, knows no bounds. In the past, Senators like McConnell, were avid and vocal supporters of fetal research and had voted in favour of lifting the Regan imposed moratorium of using fetal tissue from aborted foetuses, miscarriages and ectopic pregnancies. Multiple times. In 1988, during the Reagan administration, a panel of experts from the National Institutes of Health overwhelmingly voted in favor of allowing scientists to study biological material obtained from legal abortions. By a 19 to 0 vote, the group concluded that the practice should be considered morally acceptable because aborted fetal tissue is analogous to cadaver tissue, which is often used in scientific research. And in 1993, members of Congress on both sides of the aisle voted to legalize fetal tissue research, even in cases when the samples were obtained from legal abortion procedures, when they approved the National Institutes of Health Revitalization Act. Spurred by pressure from groups looking for cures for degenerative diseases, that legislation lifted a previous ban on using fetal tissue in scientific research put in place during the Reagan administration. McConnell voted in favor — along with several other staunchly pro-life Republican lawmakers, like John McCain, Orrin Hatch, Fred Upton, and Lamar Smith. In addition to the National Institutes of Health Revitalization Act, the Senate had several other opportunities to vote on the issue of fetal tissue donation during the 1990s. Each time, a bipartisan majority indicated support for the practice. In 1992, for instance, most Republicans — including McConnell — voted against a proposal to limit fetal tissue research to samples procured from miscarriages and ectopic pregnancies. In 1997, the Senate voted down an amendment to the Udall Parkinson’s Research Act that would have prohibited funding for research on aborted fetal tissue. When questioned about his hypocrisy, a spokesperson for McConnell tried to explain it: However, a spokesperson for McConnell told the Huffington Post last week that the issue is not about fetal tissue research. Instead, the spokesperson said, the senator is concerned that Planned Parenthood may be violating laws that prohibit the trafficking of human body parts. Riiigghhttt.. Public perception and politics. A joyous thing to behold. The Washington Post had a brilliant article detailing the hypocrisy and double talk, of self interest and promoting an ideal that they clearly never supported. McCain, for all of his 'think of the babies', was an avid supporter of fetal tissue research and has voted in favour of using tissue from aborted foetuses in the past: Sen. John McCain reportedly wrote, “My abhorrence for the practice of abortion is unquestionable. Yet my abhorrence” for Parkinson’s and juvenile diabetes “and the suffering they cause is just as strong.” In the ’90s, Sen. Mitch McConnell (R-Ky.) voted to lift the moratorium, but he now decries fetal tissue research, and Rep. Fred Upton (R-Mich.) was so supportive in 1992 that he reportedly attempted to talk Bush out of vetoing the bill. Though Upton was unsuccessful, President Bill Clinton removed obstacles to funding upon taking office, and Congress followed suit with legislation that set the conditions in force today. Babies? What babies?
Trump Usually, this is all that needs to be said. But this latest display of misogyny and the questions and queries of why the other candidates are not roasting him over hot coals for it, should be asked. For now, Trump.. Donald Trump has taken his spat with Fox News' Megyn Kelly, who asked him tough questions during the first GOP presidential debate, to a whole new level. "You could see there was blood coming out of her eyes. Blood coming out of her -- wherever," the GOP frontrunner told CNN's Don Lemon Friday night, referring to his back-and-forth with Kelly, a moderator of Thursday's debate. This is after he referred to her as a bimbo on Twitter, because she dared to ask him what he considered to be a tough question on his misogynistic comments on women in the past. The silence from the other candidates, their not responding to this disgusting display should be disturbing. But Trump still has his supporters, and it probably explains the silence. The fact that the guy responded like this to a tough question should be evidence of why he should not set foot anywhere in any political arena.
Aaaaaaaaaaaaaaand the party and the other candidates finally speak up.. Rival Republican presidential candidates piled on Donald Trump on Saturday for his caustic remarks about a female debate moderator, and the billionaire celebrity candidate backpedaled in an effort to keep his campaign from unraveling. Trump blasted Fox News anchor Megyn Kelly during a debate in Cleveland on Thursday when she questioned him about insulting comments he had made about women. The backlash to his exchange with Kelly has threatened to knock the wheels off the bandwagon of support that had Trump leading early polls in the race for the Republican nomination for the 2016 election. Asked about Kelly on a CNN interview on Friday, Trump said: "You could see there was blood coming out of her eyes. Blood coming out of her wherever." Trump was promptly dumped from a keynote speaking role on Saturday night in Atlanta at an important gathering of conservative activists put together by the RedState organization. Republican candidates Carly Fiorina, Scott Walker, Lindsey Graham, Rick Perry and George Pataki denounced the comments on Twitter or in statements. RedState chief Erick Erickson said he disinvited Trump because of his remarks about Kelly on CNN. [...] "Enough already with Mr. Trump," said Graham, a senator from South Carolina. "As a party, we are better to risk losing without Donald Trump than trying to win with him."He added: "Due to Donald Trump's unrelenting and offensive attack on Megyn Kelly and others, we are at a crossroads with Mr. Trump." Without mentioning Trump's name, Jeb Bush made reference to him when he spoke to RedState. Bush, former governor of Florida, said the tough questions at the debate were nothing compared to the challenges the next president will face. "You think that's tough? How about dealing with (Russian President Vladimir) Putin? How about dealing with the challenges that exist in our country? This is nothing," he said. Erickson read aloud some of the emails he had been getting from Trump supporters to protest his move, saying it appeared the Trump campaign had made his email address available to them. In some of the emails, according to Erickson, the writers used a racial epithet to refer to President Barack Obama and made other inflammatory comments. "I've got to tell you guys, I made the right decision," said Erickson. "These are the people I don't ever want at a RedState event." I don't know whether to be impressed or raise an eyebrow at the hypocrisy that they are only now cracking down on this sort of crap? And what about the misogyny of the other candidates? Or is it because they are genuinely terrified that Trump could actually win this that they are now saying they would rather lose than have him in office? Is this the bid to try and regain the moderate republicans and draw them back into the fold, and hope it is enough to counter Trump's popularity with his supporters and voters within the party?
It's rather amusing to watch all the mental gymnastics radical left-wingers perform in a belated attempt to tarnish Trump. "He felt that a woman is biased, therefore he is misogynist!" and "He called a woman a fat pig, therefore he must be misogynist!" Ahhh yes, 'misogyny'. Liberals keep using that word. It does not mean what they think it means. I have made an interesting observation about Trump, though. When asked a question, there is no audible pause between when the question is asked, and when he answers it. His thoughts do not go through some mental filter before they reach his mouth. What comes out of his mouth is the real deal, and liberals can't stand it! In the carefully controlled left-winger world, where all contrary thought is pruned away and suppressed by the thought-police so that only the liberal narrative remains, what Trump says would appear pretty scandalous. However, to anyone who wasn't raised in a politically correct SJW environment, he's not that radical.
Actually, in reality, he is viewed as a misogynist because he views women as objects, who must meet a certain criteria for their looks and who are there solely to please him. Even his own daughter. During a 2006 interview onThe View, Trump notoriously remarked, “I don’t think Ivanka would do [Playboy], although she does have a very nice figure. I’ve said if Ivanka weren’t my daughter, perhaps I’d be dating her.” If any person dares to challenge him, he loses his shit, becomes abusive and threatening. In short, he acts like a stroppy toddler who isn't getting the lollipop he feels he deserves. Is this good Presidential material? How is he going to cope when faced with real issues that affect national security, immigration, health, the law of the land, foreign policy? Send out abusive tweets at 2am like he does now? It's not that he's a misogynist. He's a cowardly misogynist. For example: Not only does Trump behave toward women in degrading ways, he is proud to do so. Trump “boasts about having poured a whole bottle of wine down Marie Brenner’s back after she wrote a story on him that he hated,” New York magazine reportedin 1992. “Well, it wasn’t a bottle, actually—it was a glass,” Brenner told The Daily Beast on Saturday. “I didn’t even notice it was happening, because like everything with Donald, it was a stealth maneuver. It came from behind.” See, most people view that as a bad thing, because it means his brain is unable to process information and assess pros vs cons about any subject matter. He talks before thinking. This will not serve any leader of a country well. No, I would imagine liberals are rolling in the aisle laughing their proverbial arses off. Because it appears as though conservatives are close to voting for a white version Kanye West as their candidate. You mean to anyone raised without manners or any sense of decency? Sure. I'm sure to those people, he's just wonderful and is, as you are arguing, great. Through highly successful media inroads through talk radio and Fox News, with unending streams of lies, distortions and cynical identity politics, Republicans have cultivated a loyal following among the underinformed and uninformed, the disgruntled and disaffected, the very stupidest people in America. And now those people are voting for Donald Trump. Reap it well..
Nothing "belated" about the reality-based community's assessment of Donald Trump. We've had that guy figured out for thirty years, along with the rest of the faction he - and the Republican Party - has chosen to represent and embody. The only new aspect of the Monster Ball the Republican Party has become is the complexity of the Cowardice Quickstep taking the floor these days - the old standard moves are looking a bit fusty with The Donald breaking in the middle of them. But the trend and progression remains the same - now we get to watch the "radical left-winger" label get pasted on the likes of John Bush, next in line, by people who are so very proud of not caring what anything they say actually means.
An Angel with a Giant, Motorized Sex Toy, and Other Notes Please Register or Log in to view the hidden image! For American liberals it's a combination of amusement and bemusement. This is like comic strip parodies of politicians come to life. To the other, look at what is happening in the states. Like Kansas, for instance. A bigot who destroyed the state's economy and is wrecking the schools, yet voters want more of this. Or Louisiana and New Jersey, where Republican governors are achieving astounding negative numbers but try to write this off as local adoration: They just don't want me to leave. That's how much they love me. Mike Huckabee ought to be a sideshow, something akin to an eye of Newt and splash of Santorum instead of running third among non-Trump candidates (fourth, overall). Right now, Democrats and liberals are eyeing John Kasich. FOX News abandoned their debate rules at the last minute in order to make certain that Gov. Kasich was on the stage. I'm not certain if Marist releasing their poll numbers would have altered the outcome or simply required a slightly bigger sleight from FOX News. But the thing about Kasich is that as you look down the list, he's now the "serious candidate", since Jeb Bush has kind of tossed that role to the wayside. This is also about the time in 2011 when everything went haywire for Mitt Romney and the GOP polling; exactly four years ago today, he was the apparent rontrunner. Then Michele Bachmann won the Ames Straw Poll, and in the third week of August, Rick Perry achieved the top of the chart, which began that rolling anybody but Mitt trial period. We're more worried about Kasich than Trump. This is a practical reality. If Republican voters end up actually voting for Mr. Trump as the nominee, current polling shows him running between five and sixteen points behind Clinton, with his best showings coming from state polling (-5 in Minnesota), and double-digit deficits in national polls. Mr. Trump also loses to Bernie Sanders and a non-candidate, Vice-President Joe Biden. And remember how it goes with crusaders against some windmill political correctness. Of course Mr. Trump isn't that radical to conservatives; we're all pretty much aware that he is saying what a lot of Republican voters believe. And yet while Mr. Trump gets praise from many conservatives for his vicious rhetoric, Congressional Republicans dare lament the indignity of President Obama stating an observable fact↱. It's an interesting contrast; bigotry is admirable, reality is not helpful, or so it seems among Republicans right now because that is what they are telling us. (To the other, with reality on his side, President Obama isn't backing down↱.) And remembering that this functional consideration of political correctness has historically considered ideas like not addressing women by intimate diminutives in the workplace, or not racially harassing dark skin on the job, somehow an unjust and oppressive culture war, and, furthermore recalling the purification taking place in the GOP whereby moderates are less and less welcome―the party bottomed out at one in five poll respondents being willing to identify as Republicans―and that the seeming conservative swing of "independents" is largely the result of "independent" being how those former or otherwise unwilling to identify as Republicans identify, it probably is true that Mr. Trump does not seem radical to a Party and movement that relies on rallying supremacism among its electoral base. The real question for liberals and Democrats at this point is not so much about whether or not Mr. Trump will be president; it is a less tactical and more strategic concern―what does this continuing upwelling of GOP advocacy for supremacism really mean? It is in the moment a spectacle of morbid comedy, but in dealing with a supremacist political party in a marketplace where the only important fact is who said what and not whether it is accurate, and logic has exactly no market value, the question of what this all signifies remains. Perhaps when it comes to the ballot box, New Hampshire will settle among Bush, Walker, and Kasich in some such order. But if that happens, we might think back to 2012 when conservatives tried arguing that the polls were actually unfairly skewed, and created a website to arbitrarily correct them. And we might also recall that apparently Team Romney had no real idea what was actually happening on the ground; they didn't know they were losing until they lost. So what happens then? Will Republicans escalate with an internal poll-skewing controversy? Electoral fraud accusations about how the state GOP conspired to wreck Trump's candidacy? And what happens next? In the moment, the hard thing about these questions is justifying that they will exist. What is striking is that there seems to be nothing Trump can do to knock his numbers down. Let us presume, for a moment, though, that reality somehow prevails and the Donald isn't the nominee. This really is the conventional wisdom, and its accuracy hinges on its assessment of conservative voters. All these people who supported Trump, and all these candidates who tried to ride his coattails, and make arguments such as we've heard about how he's really just saying what everybody thinks but is afraid to say because of political correctness―you know, bigotry as heroism―will do and say ... well, what, in the aftermath? This, I think, is important. Many conservatives disdain charges of Republican bigotry and hatred, but that lament presently suffers and optics problem↗. Will the rest of society be expected to simply forget about this outburst of supremacist vice among Republican candidates, surrogates, and voters? These upwellings are constant, and these ruptures increasing both in frequency and magnitude. And in a year when Republican voters are so overwhelmingly choosing agreement with candidate over electability, which is hardly a stable dualism, at some point we must start considering the significance of sustained supremacism as a powerfully influential conservative argument. I'm of the opinion we should at least try to enjoy the Show for the time being. We're not going to know what to do about all this in its larger context until later in the process, anyway, so fits of laughter are probably the best response to the current pageant of macabre. But in truth, I don't see this as a matter of Donald Trump advancing to the nomination; rather, I'm fascinated about how after all these years of discussing these issues and hearing from all over the conservative sector that it is unfair to call blatant supremacism by its name, Republicans have pretty much made the point unavoidable. When this Trump phenomenon has run its course and done its damage to the Party for this cycle, what still remains will be the question of how the hell Republicans let it get this far out of hand. And part of the answer is the unavoidable, observable reality that no matter how much Republican advocates and sympathizers lament the constant barrage from liberals charging bigotry and supremacism, there is a significant element of truth about it. Still, though, there's no point in trying to figure out the data we haven't yet seen; Mr. Trump will be providing plenty more, it seems, as the days go on. ____________________ Notes: Benen, Steve. "Right uncomfortable with its Iran deal bedfellows". msnbc. 7 August 2015. msnbc.com. 9 August 2015. http://on.msnbc.com/1UtuG80 Fabian, Jordan. "Obama defends comparing GOP to Iranian hard-liners". The Hill. 7 August 2015. TheHill.com. 9 August 2015. http://bit.ly/1PeV7vl
As It Happens ... Please Register or Log in to view the hidden image! ... while Mr. Benen's↱ discussion of the cringeworthy is itself exceptionally cringeworthy for the story it tells, he manages to find his way to a version of your question in both in the larger marketplace terms, but also as pertains to Mr. Erickson: For Erick Erickson to suddenly position himself as an arbiter for propriety and decency in Republican politics is arguably every bit as ridiculous as Trump's unexpected rise as a GOP power player. Erickson's record is one of repulsive rhetoric towards all kinds of perceived foes, most notably his jaw-dropping misogynistic attitudes↱ towards women. The real question over the weekend wasn't Erickson's discomfort with Trump, but rather, why any credible presidential candidate would want anything to do with↱ an Erickson-hosted gathering .... .... Reporting from Atlanta, msnbc's Benjy Sarlin quoted↱ Erickson saying over the weekend that Trump's shot at Megyn Kelly represents "the beginning of the end" for Trump's candidacy. Plenty of attendees to the Red State gathering seemed very much inclined to agree. Then again, I think I've also encountered a hint about something that came up last month↗: One thing worth watching is another not-quite metaphor about the business community. When the Trump phenomenon passes, the "'entertained' by idiots" question will remain; Sen. Cruz, Dr. Carson, Gov. Jindal, and Messrs. Perry and Santorum all leap to mind. But in the business community, the passing of an obvious symptom is often played off as the end of the malady. Republicans will likely try something similar; compared to Mr. Trump, these others might actually sound kind of sane. Just like we might pretend the recent arrests of FIFA officials means the organization is now free of corruption. Still, though, we await new poll numbers to tell us how Mr. Trump's grotesqueries affect his standing. In truth, if "not being a rapist" according to the erroneous assertion that a man can't rape his wife isn't a problem with Republican voters, I'm hard-pressed to see how his continuing public relations nightmare for the RNC is going to hurt him. Right now, Republican voters are telling pollers they're backing candidates who say what they want to hear. This really isn't the most encouraging moment in our American political discourse. ____________________ Notes: Benen, Steve. "Donald Trump at the cringe-worthy crossroads". msnbc. 10 August 2015. msnbc.com. 10 August 2015. http://on.msnbc.com/1UyA6i3 See Also: Fisher, Max. "Prominent sexist Erick Erickson says Donald Trump's sexism has no place in the GOP". Vox. 8 August 2015. Vox.com. 10 August 2015. http://bit.ly/1J7gFLn Hananoki, Eric. "GOP 2016 Contenders Are Courting Erick Erickson, The Anti-Gay Pundit With A 'Pattern Of Being Disrespectful To Women'". Media matters for America. 4 August 2015. MediaMatters.org. 10 August 2015. http://mm4a.org/1J7h3ti Sarlin, Benjy. "'The beginning of the end': Inside Trump's RedState meltdown". msnbc. 8 August 2015. msnbc.com. 10 August 2015. http://on.msnbc.com/1DDu638
National Abortion Federation v. Center for Medical Progress et al California Northern District 15-cv-03522 PACER Docket: https://ecf.cand.uscourts.gov/cgi-bin/DktRpt.pl?289894 $$$ RECAP Docket: http://www.archive.org/download/gov.uscourts.cand.289894/gov.uscourts.cand.289894.docket.html http://feminist.org/blog/index.php/...les-anti-abortion-group-cant-plead-the-fifth/ The District Court issued this preliminary ruling from the bench on September 18 (Docket 132): ——— CMP had previously filed an appeal to the Circuit court to stay the discovery request. 9th Circuit: 15-72844 (mandamus application) CMP's September 14 petition claims: Throughout CMP seems to ignore that the purpose of a NDA is to bargain away one's right to Freedom of Speech with respect to the other party's secrets. District Judge wrote (Docket 128): NAF wrote (Docket 131, attachment 1): CMP replied (docket 133), but I don't see a simple summary quotation. Let's go with “Nuh-uh!” Circuit Court ordered on September 17 (Docket 135):
Here is the written order denying CMP the right to take the 5th — Docket 137 Defendants Center for Medical Progress (“CMP”) and Biomax Procurement Services (“Biomax”) (collectively, “defendants”) seek to assert Fifth Amendment rights in response to plaintiff National Abortion Federation’s (“NAF”) discovery requests. At issue is whether corporate entities may assert Fifth Amendment rights against self-incrimination on the basis that their opponent has alleged that they are sham “alter ego” corporations that have no existence separate from an individual or individuals. Although defendants do not themselves contend that they are alter egos, they argue that NAF’s allegations conclusively establish that they may invoke the Fifth Amendment. I heard argument on this issue on September 18, 2015. This is not a close question. Defendants would have me adopt NAF’s allegations in the Complaint that defendants are alter ego corporations to conclude that they may invoke the Fifth Amendment, while at the same time allow defendants to continue to dispute this fact for other purposes in this litigation. CMP and Biomax hold themselves out as corporations to the federal government, the state of California, and, most recently, to the United States Court of Appeals for the Ninth Circuit. Accepting the defendants’ argument would not only contravene a long line of case law, it would lead to unjust results. CMP and Biomax may not refuse to comply with discovery by invoking the Fifth Amendment.¹ ¹ This Order shall not be construed to conflict with the discovery stay currently imposed by the Ninth Circuit Court of Appeals pending defendants’ Petition for Writ of Mandamus. BACKGROUND CMP is registered with the Registry of Charitable Trusts of the Office of the California Attorney General. See Dkt. No. 113-2. All corporations, associations, and trustees holding assets for charitable purposes or doing business in California are required to register with the Registry of Charitable Trusts. Id. at 2. On its registration form, CMP listed three directors: defendant Daleiden, defendant Newman, and Albin Rhomberg, who is not a party to this litigation. Id. at 3. It described its primary activity as “monitor[ing] and report[ing] on medical ethics and advances.” Id. It continued, “[t]he Center will receive monetary donations from the public to support its work.” Id. CMP listed the date it first received assets as March 29, 2013. Id. The registration was received by the Registry of Charitable Trusts on April 30, 2013. Id. at 2. CMP is incorporated as a “Nonprofit Public Benefit Corporation” in California. See Id. at 5. It again expressed its purpose as “to monitor and report on medical ethics and advances.” Id. The articles of incorporation state that Nichole Surkala is CMP’s agent for service of process. Id. Daleiden is recorded as the incorporator. Id. In order to obtain tax-exempt status in California, he certified, among other things, that “[n]o substantial part of the activities of this corporation shall consist of carrying on propaganda, or otherwise attempting to influence legislation, and this corporation shall not participate or intervene in any political campaign.” Id. CMP has bylaws that affirm that it is a nonprofit public benefit corporation. Id. at 7. It states that it is nonpartisan and that no substantial part of its activities consists of attempting to influence legislation. Id. The bylaws also include corporate formalities such as instructions on who may be a Director and how to fill vacancies, when and where meetings shall be held, how the Board may take actions, and how officers shall be compensated. Id. at 7-11. CMP stated that most of its intellectual property would be available for free online. Dkt. No. 113-4 at 33. CMP filed for tax exempt status with the Internal Revenue Service (“IRS”) in April of 2013. Id. at 1. Daleiden is listed as the organization’s contact on the application. Id. at 4. This form asserts that CMP is a corporation organized for charitable purposes. Id. at 5. It lists Daleiden as CEO, earning $30,000 in annual compensation, Rhomberg as CFO with no compensation, and Newman as Secretary with no compensation. Id. Again, CMP indicated that it was not involved in political campaigns and did not seek to influence legislation. Id. at 8. It stated that it has intellectual property in the form of copyrights, and included information about its financial data. Id. at 9, 12-15. The IRS approved CMP’s application for tax exempt status on December 30, 2013. Dkt. No. 113-5. The front page of CMP’s website requests citizens to “take action” by “sign[ing] our petition [to] ask your representative for Congress to investigate the black market in aborted baby parts.” THE CENTER FOR MEDICAL PROGRESS, http://www.centerformedicalprogress.org/ (last visited September 21, 2015). Its “About Us” section describes CMP as a “501(c)3 non-profit organization” and “group of citizen journalists dedicated to monitoring and reporting on medical ethics and advances.” Dkt. No. 113-6. About Us, THE CENTER FOR MEDICAL PROGRESS, http://www.centerformedicalprogress.org/about-us/ (last visited September 21, 2015). Biomax is listed as a limited liability company with the California Secretary of State. Dkt. No. 113-10.
Continued... DISCUSSION I. CORPORATE ENTITIES MAY NOT ASSERT THE FIFTH AMENDMENT, EVEN IF THEY ARE ALTER EGOS In resolving whether Biomax and CMP may invoke the Fifth Amendment, I need not consider whether they are (or appear to be) alter egos of Daleiden or others. Case law is dispositive that the corporate defendants may not assert Fifth Amendment rights, regardless of whether they are alter egos of individuals who may be incriminated. Under the collective entity rule, courts “have long recognized that, for the purposes of the Fifth Amendment, corporations and other collective entities are treated differently from individuals.” Braswell v. United States, 487 U.S. 99, 104 (1988). Corporate or business documents are not privileged, regardless of whether the collective entity is a sole proprietorship, United States v. Doe, 465 U.S. 605, 617 (1984), a partnership, Bellis v. United States, 417 U.S. 85, 86-91 (1974), a corporation, Braswell, 487 U.S. at 102, or even a labor union, United States v. White, 322 U.S. 694, 704-05 (1944). For the purposes of the Fifth Amendment right against self- incrimination, courts do not distinguish between corporate entities that are distinct entities, and those that are a sham. In Wilson v. United States, the court held that the Fifth Amendment does not protect corporate records even when they were personally incriminating. 221 U.S. 361, 380 (1911) (“the physical custody of incriminating documents does not of itself protect the custodian against their compulsory production”). The court noted that the state’s “reserved power of visitation would seriously be embarrassed, if not wholly defeated in its effective exercise, if guilty officers could refuse inspection of the records and papers of the corporation.” Id. at 384-85. In United States v. Doe, the court held that the owner of a sole proprietorship could not be compelled to produce the proprietorship’s business records because the act of production would be incriminating. 465 U.S. at 617. It stressed that the district court had made factual findings that the act would incriminate the owner because it would prove that the documents existed, were authentic, and were in the owner’s possession. Id. at 613-14. Notably, the Doe court held that the contents of the records themselves were not privileged, but that the act of production implicated the individual’s Fifth Amendment rights. Id. at 612. In Bellis v. United States, one of three partners in a law firm was served with a subpoena directing him to produce partnership records. 417 U.S. at 86. The partner argued that production was privileged because it was “unrealistic to consider the firm as an entity independent of its three partners,” instead of a personal practice of three individuals. Id. at 94-95. He also asserted that he had “a substantial and direct ownership interest in the partnership records, and [did] not hold them in a representative capacity.” Id. at 95. The court rejected these arguments, stating that “[a]lthough it may not have had a formal constitution or bylaws to govern its internal affairs, state partnership law imposed on the firm a certain organizational structure in the absence of any contrary agreement by the partners.” Id. at 96. The court examined the partnership formalities that the firm had employed, as well as the way that the entity was treated by state law. Id. at 96-98. It noted that “the records subpoenaed must in fact be organizational records held in a representative capacity,” and found that the requested documents satisfied these criteria. Id. at 93, 97-98. It emphasized that under state law, the partner had a right to access the documents and held them as a fiduciary. Id. at 98-99. The leading case discussed by the parties, Braswell v. United States, was decided in 1988. The petitioner operated two active corporations that maintained their status with the State of Mississippi, filed corporate tax returns, and kept corporate books and records throughout the lawsuit. 487 U.S. at 101. Both corporations had three directors: Braswell, his wife, and his mother. Id. Braswell’s wife and mother had no authority over the business of either corporation. Id. A subpoena was issued to Braswell to produce the corporate records. Id. Braswell did not argue that his corporations could assert the Fifth Amendment, and the court noted the baselessness of any such argument. Id. at 102 (“it is well established that such artificial entities are not protected by the Fifth Amendment.”). He also did not contend that the contents of the records were privileged. Id. Instead, Braswell argued that “his act of producing the documents has independent testimonial significance, which would incriminate him individually,” thus implicating his personal Fifth Amendment rights. Id. at 102-03. The court discussed the prior decisions that developed the collective entity doctrine in detail. It distinguished Doe by stressing that “petitioner has operated his business through the corporate form.” Id. at 104. It acknowledged that the law treats corporations differently from individuals, and that “it is well settled that no privilege can be claimed by the custodian of corporate records, regardless of how small the corporation may be.” Id. at 104, 108 (quoting Bellis, 417 U.S. at 100).
Continued... In all of these cases, the individual asserting Fifth Amendment rights could have made a plausible argument that he was the alter ego of the collective entity, or at least exhibited some of the characteristics considered in an alter ego analysis. And as NAF points out, many lower courts have interpreted Supreme Court precedent to prohibit a corporate entity from asserting Fifth Amendment protections on the basis that it is an alter ego of an individual. See, e.g., United States v. Rosenstein, 474 F.2d 705, 715 (2d Cir. 1973) (“neither Rosenstein nor Braverman, even though they were the alter egos and sole owners of CTE, can assert Fifth Amendment privileges when corporate records are used against them.”); In re Agan, 498 F. Supp. 493, 494-95 (N.D. Ga. 1980) (“Production of corporate records may be compelled from an officer even if he is the sole shareholder or alter ego of the corporation”); Segmond v. United States, 589 F. Supp. 568, 575 (S.D.N.Y. 1984) (“There is no alter ego exception to the rule that no Fifth Amendment privilege exists for corporate records.”); Digital Equip. Corp. v. Currie Enterprises, 142 F.R.D. 8, 16 (D. Mass. 1991) (where defendant “is essentially the corporation’s alter ego,” rejecting the argument defendant would incriminate himself “by producing potentially inculpatory documents, and therefore ratifying their existence, accuracy and location”); From this long line of case law, it is clear that the records of a collective entity may not be protected by the Fifth Amendment. Although an individual custodian’s act of producing records may implicate that person’s Fifth Amendment rights in certain limited circumstances, the contents of the records are never privileged. The defendants might have a more compelling argument if the requested documents appeared to be personal in nature; however, even this argument would likely be unpersuasive. See Wilson, 221 U.S. at 378 (1911) (“where an officer of a corporation has possession of corporate records which disclose his crime, there is no ground upon which it can be said that he will be forced to produce them if the entries were made by another, but may withhold them if the entries were made by himself. The books are no more his private books in the latter case than in the former; if they have been held pursuant to the authority of the corporation, that authority is subject to termination.”). Courts have stressed that what matters is that the records are held in a representative capacity, not whether they personally incriminate an individual. The records that NAF requested are not documents that are personal in nature or even that inevitably incriminate one individual. Instead, they fall squarely within CMP’s claimed function as described in its bylaws, articles of incorporation, and IRS documents: “to monitor and report on medical ethics and advances.” Defendants seek to distinguish all of this case law on the bare fact that here, the plaintiff, and not the defendant resisting discovery, raised the alter ego theory. This fact is immaterial. The reasoning of the cases above did not focus on who asserted the alter ego theory. The collective entity rule recognizes the importance of allowing government investigations of and accountability for collective entities, and that corporate assertion of Fifth Amendment rights would allow those who use the corporate form to escape liability for crime. This purpose would be frustrated if the rule did not apply where an entity was fraudulent or otherwise an “alter ego.” As the Court wrote in Bellis: In view of the inescapable fact that an artificial entity can only act to produce its records through its individual officers or agents, recognition of the individual's claim of privilege with respect to the financial records of the organization would substantially undermine the unchallenged rule that the organization itself is not entitled to claim any Fifth Amendment privilege, and largely frustrate legitimate governmental regulation of such organizations. 417 U.S. at 90. And in Braswell, the Court opined: “[R]ecognizing a Fifth Amendment privilege on behalf of the records custodians of collective entities would have a detrimental impact on the Government's efforts to prosecute ‘white-collar crime,’ one of the most serious problems confronting law enforcement authorities.” 487 U.S. at 115. This reasoning may apply here as well. To obtain tax exempt status as a nonprofit public benefit corporation, CMP asserted that it was not incorporated for the purpose of carrying on propaganda or attempting to influence legislation. NAF asserts a colorable argument that the corporate defendants have violated, and continue to violate, numerous California laws and that their purpose was to smear NAF and its members, ostensibly for the purpose of propagating its message, making a political statement, and influencing legislation. The front page of CMP’s website requests that visitors sign a petition that will be submitted to members of Congress. If these allegations are accurate, and Biomax and CMP are sham corporations, allowing them to assert Fifth Amendment rights could frustrate the government’s purpose in apprehending those that abuse corporate laws. For the reasons set forth above, the corporate defendants’ arguments that they should be treated as alter egos do not impact my Fifth Amendment analysis.
Continued... II. NAF’S ALLEGATION IN THE COMPLAINT THAT DEFENDANTS ARE SHAM CORPORATIONS IS NOT A JUDICIAL ADMISSION The crux of defendants’ argument is that because NAF alleged in the Complaint that CMP and Biomax are alter egos of the corporate entities, this issue is conclusively established for the purposes of the Fifth Amendment and renders the above body of case law inapplicable. As discussed, this argument has no bearing on the collective entity doctrine. But it is also important to clarify that defendants’ argument relies on a flawed interpretation of the judicial admissions doctrine. The purpose of the doctrine of judicial admissions is to “act[] as a substitute for evidence in that it does away with the need for evidence in regard to the subject matter of the judicial admission.” State Farm Mut. Auto. Ins. Co. v. Worthington, 405 F.2d 683, 686 (8th Cir. 1968); see also Checo v. Shinseki, 748 F.3d 1373, 1379 n.5 (Fed. Cir. 2014). Judicial admissions are “not evidence at all but rather have the effect of withdrawing a fact from contention.” Keller v. United States, 58 F.3d 1194, 1199 n.8 (7th Cir. 1995). Parties are only bound by factual allegations in a complaint, and not legal conclusions. See MacDonald v. Gen. Motors Corp., 110 F.3d 337, 341 (6th Cir. 1997); Shields v. Tracy, No. CIVS031614DFL-PAN, 2005 WL 1490300, at *11 n.2 (E.D. Cal. June 21, 2005). ² ² The parties dispute whether the determination of a corporation as an “alter ego” is factual in nature. Although this point is moot, many courts treat this question as one of fact. Duggan v. Hobbs, 99 F.3d 307, 313 (9th Cir. 1996); Zoran Corp. v. Chen, 185 Cal. App. 4th 799, 811 (2010). It is less clear whether at the pleading stage, an allegation that a corporation is an “alter ego” would constitute a judicial admission. Int’l Longshore & Warehouse Union, Local 40 v. Grain, No. 13-cv-00513, 2013 WL 6665725, at *6 (D. Or. Dec. 17, 2013); Banks v. Robinson, No. 2:11- CV-00441-RLH, 2011 WL 3274049, at *6 (D. Nev. July 28, 2011); see also Wolfe v. United States, 798 F.2d 1241, 1243 (9th Cir.) opinion amended on denial of reh’g, 806 F.2d 1410 (9th Cir. 1986) (treating alter ego as legal conclusion); Nw. Adm’rs, Inc. v. Sacramento Stucco, 86 F. Supp. 2d 974, 987 (N.D. Cal. 2000) (same); In re Frazier, 82 B.R. 114, 115 (N.D. Cal. 1987) (same). A judicial admission by NAF that CMP and Biomax are sham corporations and alter egos of the individual defendants would not have the effect that defendants claim it would. The corporate defendants have asserted the Fifth Amendment in this case; it is their burden to establish that they may do so. See United States v. Brown, 918 F.2d 82, 84 (9th Cir. 1990). Although NAF is permitted to respond to defendants’ brief in accordance with the Civil Local Rules, it is not NAF’s burden to show that the corporate entities in this case are not protected by the Fifth Amendment. Even if NAF is precluded from taking the position that the defendants are corporate entities for the remainder of this litigation, and its allegation extends to the Fifth Amendment issue,³ I have to make an independent determination that CMP and Biomax are entitled to invoke the Fifth Amendment. Whether CMP and Biomax may assert the Fifth Amendment is not a question that can be limited by what NAF did or did not allege. ³ I briefly note that NAF alleged that CMP and Biomax were alter egos presumably for the purpose of liability and piercing the corporate veil. This is an entirely separate issue from the question of their Fifth Amendment rights. I am not persuaded by defendants’ argument at the hearing that NAF raised the Fifth Amendment issue by requesting production of certain documents. Although NAF’s discovery requests led to the corporate assertions of the Fifth Amendment, and NAF would benefit from corporate treatment in this context, this is not the same as NAF raising the issue or bearing the burden of establishing its truth or falsity. Defendants cite American Title Insurance Co. v. Lacelaw Corp. for the principle that “stipulations and admissions in the pleadings are generally binding on the parties and the Court.” 861 F.2d 224, 226 (9th Cir. 1988). This case found that “[j]udicial admissions are formal admissions in the pleadings which have the effect of withdrawing a fact from issue and dispensing wholly with the need for proof of the fact.” Id. The language in Lacelaw indicates that a judicial admission is binding on a particular party before the court. The court must hold parties to their admissions, even if it would otherwise make a contrary factual finding. It does not necessarily follow that a court must accept judicially admitted facts as true in making its own independent determinations that have not been raised by the party that made a judicial admission.⁴ Defendants’ position would require the trial court, and not just NAF, to treat as an established fact NAF’s allegation that CMP and Biomax are alter egos for the purposes of other issues that arise in the litigation, and that were not raised by NAF. In fact, it would require me to view all of NAF’s factual allegations in the Complaint as conclusive. ⁴ I am not persuaded by defendants’ argument at the hearing that NAF raised the Fifth Amendment issue by requesting production of certain documents. Although NAF’s discovery requests led to the corporate assertions of the Fifth Amendment, and NAF would benefit from corporate treatment in this context, this is not the same as NAF raising the issue or bearing the burden of establishing its truth or falsity. Trial courts have discretion to accept or reject a judicial admission. Singer v. State Farm Mut. Auto. Ins. Co., 116 F.3d 373, 376 (9th Cir. 1997). Even if NAF’s allegations could be construed as a judicial admission, I would not accept it for the purposes of the Fifth Amendment analysis. Considering that CMP and Biomax are registered publicly as a corporation and limited liability company, respectively, and to this day continue to hold themselves out as a corporate entities, including in the recent petition to the Ninth Circuit, and considering that they will likely continue to maintain their corporate status throughout this litigation, it is wholly improper to treat NAF’s allegation that they are alter egos as conclusively established. For these reasons, NAF’s allegations in the Complaint that CMP and Biomax are alter egos do not serve as a judicial admission binding on me for the purposes of whether those entities may assert Fifth Amendment rights.
Concluded... III. THE “BRASWELL EXCEPTION” IS INAPPOSITE The parties spend a substantial amount of time discussing whether a potential exception identified in Braswell would apply in this case. I briefly address this issue in the interests of future clarity. In a footnote, the Braswell court stated that “[w]e leave open the question whether the agency rationale supports compelling a custodian to produce corporate records when the custodian is able to establish, by showing for example that he is the sole employee and officer of the corporation, that the jury would inevitably conclude that he produced the records.” Braswell, 487 U.S. at 118 n.11. This footnote is not applicable in this case. As discussed above, Braswell discussed the Fifth Amendment rights of a corporate custodian in the act of production. Here, the only issue is whether the corporate entities themselves may assert the Fifth Amendment, as no specific corporate custodian has been identified who could assert Fifth Amendment rights. Although defendants contend that this is “a clear example of a situation in which a jury would inevitably conclude that [the corporate officer] produced the records,” see Dkt. No. 103 at 6, they ignore the fact that the corporate defendants, and not specific corporate officers, have been served with the discovery requests. Defendants also improperly assume that Daleiden is the corporate officer who will produce the records. There are other Board members, and according to the Complaint other individuals who represented that they worked with CMP and Biomax who could presumably produce the corporate records. Compl. ¶¶ 18-20 (Dkt. No. 1). Defendants have not cited any cases where all employees of a multiple-person corporation successfully asserted the Fifth Amendment and the corporation did not have to respond to lawful subpoenas or other requests for production. To the extent that defendants assert that there is no corporate custodian who could produce the records, they are foreclosed by the precedent described above. See In re Two Grand Jury Subpoenae Duces Tecum, 769 F.2d 52, 57 (2d Cir. 1985) (“the corporation must appoint some other employee to produce the records, and if no existing employee could produce records without incriminating himself by such an act, then the corporation may be required to produce the records by supplying an entirely new agent who has no previous connection with the corporation that might place him in a position where his testimonial act of production would be self-incriminating. There simply is no situation in which the fifth amendment would prevent a corporation from producing corporate records, for the corporation itself has no fifth amendment privilege.”) (citations omitted); In re Grand Jury Proceedings, 473 F. Supp. 2d 201, 205 (D. Mass. 2007) (corporation may appoint “an outside agent to serve as ‘record keeper’ for purposes of responding to the subpoena”). In addition, Daleiden would be not be protected by the Braswell exception if he were compelled to produce the information. Daleiden is not the “sole employee and officer of the corporation.” Braswell, 487 U.S. at 118 n.11. CMP has two other officers and allegedly others who work for or with it. In Braswell, the court compelled the owner of a corporation with three officers to produce corporate records. And recently, the Third Circuit rejected the argument that the alleged only employee of a one-man corporation could refuse to produce corporate records as corporate custodian. See In re Grand Jury Empaneled on May 9, 2014, 786 F.3d 255, 261-62 (3d Cir. 2015) (“It is hard to imagine a jury ‘inevitably’ concluding that he produced the records when the records were created while the Corporation employed other staff besides [defendant] and while he utilizes the services of independent contractors whose responsibilities include ‘[m]aint[aining] accurate and complete medical records, kept in accordance with HIPAA and Patient Privacy standards’ and assisting with billing practices.”). Finally, and dispositively, there is “no authority showing that any court, let alone a controlling court, has actually applied the potential Braswell exception.” United States v. Milligan, 371 F. Supp. 2d 1127, 1129 (D. Ariz. 2005); see also In re Grand Jury Subpoena Issued June 18, 2009, 593 F.3d 155, 159 (2d Cir. 2010) (collecting cases); Amato v. United States, 450 F.3d 46, 52 (1st Cir. 2006). I decline to be the first to do so, or to overrule Supreme Court precedent. See Dkt. No. 103 at 7-8. CONCLUSION Biomax and CMP do not have any Fifth Amendment rights and may not invoke the Fifth Amendment in this case. IT IS SO ORDERED. Dated: September 23, 2015
