Discussion in 'Politics' started by Tiassa, Aug 10, 2022.
GOP won 218 in House, but why Senate's result is not finalized yet?
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Georgia's election law did its job. With no candidate achieving a minimum fifty percent threshold, the top two candidates will now run against each other. The vote is the first week of December.
Fabulous news about the dems winning the Senate
lets hope 10% of the Republicans in the house cross the floor on some solid issues.
georgia swung to trump when he won the presidency but now they realise he is raving mad and doesn't understand international relations or economics or social policy, hopefully they will vote dems for some sanity and stability.
the smart business move is to vote dems to support Biden inflation reduction program.
its vital to us jobs and to keep trade deficit in control and to maintain profitability.
I wouldn't be so sure.
Trump's base, for the most part, hasn't gone anywhere. Did you see the people cheering as he announced he is running for President again?
The Republican party remains the party of Trump, for now.
That crowd was hand-picked and invited by Trump. Even then, many of them tried to file out in the middle of his speech, only to be stopped by his security. Recent polls have Desanitis Doing better than Trump.
Now that's not to say that these people suddenly became concerned with his competence, just that they don't think he could win in a general election, especially since all the MAGA candidates in important races lost during the midterms.
Declaring his candidacy so early is mainly because he thinks that will offer him a shield against his legal problems. You can see this in all his legal filings where they, in some form or another, try to claim that the cases against him are political. In this assumption he is as mistaken as in his claims that the Presidential Records Act gave him the authority to remove all those government documents from the White House and take them with him when he left office. His most recent ridiculous claim is that, as President, he could just designate those documents as being personal items.
It reminds me of those horror movies when they think they've caught the guy but then, "Oh no! He's in the house!"
And not only one horror movie, but sequel after sequel. TFG could lose the 2024 presidential election, and then, (right after declaring the election stolen), he could immediately declare he is already running for the presidential election of 2028. Then again for 2032, and so on... Also, he may never die, so don't count on that.
they had to lock people in the room when they tried to leave during his announcement speech. we might just get to see a civil war in the republican party
What Condition Which Condition Is In
U.S. Senate candidate Herschel Walker (R-GA):
People see that it's a person wielding that weapon. You know, Cain killed Abel, and that's the problem that we have. And I said, what we need to do is look into how we can stop doing those things. You know, you talk about doing a disinformation: What about getting a department that can look at young men that's looking at women that's look at their social media? What about doing that, looking into things like that, and we can stop that, that way? But, yet, they just want to just continue to talk about taking over your Constitutional rights, and that's one thing I think we need to look into. This has been happening for years, and the way we stop it is by putting money into the mental health field, by putting money into other departments rather than department just want to take away your rights.
It's from a FOX News appearance in May, which came through my twitfeed today in the noise leading toward Walker's runoff, next month, with Sen. Raphael Warnock (D-GA).
This is part of his answer to what happened at Uvalde↗.
I don't know if that steaming heap of words makes any sense to conservatives, but they do seem to be willing to vote for it.
@atrupar. "Herschel Walker's solution to school shootings involves 'a department that can look at young men that's looking at women that's looking at social media.'" Twitter. 26 May 2022. Twitter.com. 20 November 2022. http://bit.ly/3hZcJVt
It was all of a few weeks ago, when I was looking up the song for a similar joke, that I realized that was Kenny.
All my life, I heard that song on the radio and somehow never knew.
I've always known, because I'm that old but it's always been surprising even to me in that it's like there are two Kenny's. There's the "pop/rock/star" hippy Kenny and the country crooner Kenny. I'm no big fan of either but I kind of like the earlier Kenny better. They're both kind of cornball though.
I don't remember the earlier version having many hits. There was one about "Ruby, don't take your love to town" about an old dude with a young girlfriend and he knew he couldn't satisfy her and she would be "taking her love to town" and this one about his "condition". I can't recall any others.
When I was in high school I remember my favorite "cassette" was a greatest hits "album" called Eric Clapton at his best (on Polydor). The point here is that even in the 70's Eric Clapton had a greatest hits album and he's still just as relevant today (I guess).
Now that I think about it, when I was in high school the Bee Gees had a greatest hits record out and they were so old at that point that their career was almost dead. Their hay-day would have been when I was in grade school, then Saturday Night Fever came out and revived their career.
Some of these people/groups have just been around for a long, long time, surprisingly.
There was the time I mistook Bob Seger for Kenny Rogers. Like, for years. Just never occurred to wonder.
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Happy Thanksgiving. Newly-appointed Special Counsel Jack Smith wasted no time, filing today↱:
Plaintiff asserts that In re Search Warrants Executed on April 28, 2021, No. 21-mc-425 (S.D.N.Y.), is an example of a case in which "a court has previously asserted equitabl ejurisdiction to enjoin the government from using seized materials in an investigation pending review by a special master." 11/23/22 Trusty 28(j) Letter, at 1. That is incorrect. As plaintiff recognizes, the court did not "enjoin the government," id.; instead, the government itself volunteereed that approach. Moreover, the records there were seized from an attorney's office, after the review was conducted on a rolling basis, and the case did not involve a separate civil proceeing invoking a district court's jurisdiction. Cf. In the Matter of Search Warrants Executed on April 9, 2018, No. 18-mj-3161 (S.D.N.Y.) (involving similar circumstances). None of those is true here.
Allison Gill↱ explains:
Special Counsel Smith - on thanksgiving - sends a letter to the 11th circuit pointing out a fatal flaw in one of trumps arguments in the documents case. Trump tried to argue a court forced the government to allow a special master in the Rudy case.
Jack Smith points out that's a lie. First, it was the government's idea for a special master in the Rudy case. Second, Rudy's a lawyer. Third, docs were released on rolling basis. Finally, Rudy didn't have a civil proceeding invoking bullshit jurisdiction ....
Victor Shi↱, a political activist and Biden delegate, describes the filing as, "calling out one of Trump's lies point blank", but that's the thing: Maybe one side says one thing, and the other side says something else, and this is clearly a biased source, and, sure, even Gill has a bone to pick with Trump, but they're not wrong.
Even after we account for the point about this being Donald Trump, it is still kind of dazzling that Jim Trusty, a former DoJ prosecutor, would put himself in this position.¹
I mean, seriously. Phuck. Check yourself before you wreck yourself. And Smith would appear to be not phucking around.
¹ The thrashing Trusty and his associates survived earlier this week↱ is its own story. (Note aside: It is not that I would take suddenly change my opinion of Judge Pryor, but consider that even a jurist of such low reputation would purport such integrity as to be neither convinced nor especially amused.) The holiday week has been unkind to Jim Trusty, so far.
@MuellerSheWrote. "NEW: Special Counsel Smith - on thanksgiving - sends a letter to the 11th circuit pointing out a fatal flaw in one of trumps arguments in the documents case. Trump tried to argue a court forced the government to allow a special master in the Rudy case." (thread) Twitter. 24 November 2022. Twitter.com. 24 November 2022. http://bit.ly/3EtinXq
@Victorshi2020. "NEW: Special Counsel Jack Smith literally just sent a letter to the 11th Circuit calling out one of Trump’s lies point blank. It’s Thanksgiving. But Jack Smith doesn’t care. He’s working because he cares about justice & accountability & nothing will stop him." Twitter. 24 November 2022. Twitter.com. 24 November 2022. http://bit.ly/3ExOJQV
Dye, Liz. "Trump Lawyers Face Plant Into Eleventh Circuit. Again." Above the Law. 22 November 2022. AboveTheLaw.com. 24 November 2022. http://bit.ly/3tZwbnA
Smith, Jack. "Re: Plaintiff's Notice of Supplemental Authority in Trump v. United States, Case No. 22-13005-DD". United States Department of Justice Special Counsel's Office. 24 November 2022. DocumentCloud.org. 24 November 2022. http://bit.ly/3iaKFP0
Conservative Condition Trump
The Eleventh Circuit Court of Appeals reversed↱ the decision of Judge Aileen Cannon leading to the appointment of a Special Master to review documents seized under warrant at Mar-a-Lago in August. Early reviews suggest a brutal takedown, nearly definitive rejection.
But there is a particular comparison we might observe, about the conservative condition:
• Look at the judges on this panel. Two Trump appointments and one from Bush Jr. And that one, Chief Judge William Pryor: I actually despise his appointment and consider his Senate confirmation a dereliction of duty. The man is a bigot who let his prejudice guide his actions as a state attorney general. Nonetheless, he is a judge, a federal judge, and a federal chief judge, at that; there is only so far he will go in service of politics. The difference between conservative approaches to law, process, and justice ought not be overlooked when assessing the contemporary conservative condition.
The Opinion of the Court opens:
This appeal requires us to consider whether the district court had jurisdiction to block the United States from using lawfully seized records in a criminal investigation. The answer is no.
That's pretty direct, albeit unspectacular compared to a Tallahassee federal court order↗ against Florida in a First Amendment dispute, nor exasperated as a Georgia judge↗ ruling against an anti-abortion law. Still, in the politics of justice, there is only so much a court can be expected to take.
The order then briefly outlines Trump's civil action seeking injunction, and then observes, "These disputes ignore one fundamental question—whether the district court had the power to hear the case." A court's power is "authorized by Constitution and statute", and "is not to be expanded by judicial decree". "This case", the court asserts, "was such an expansion." Trump's case fails all four factors of what is called the Richey test.
Again, the court is straightforward:
In considering these arguments, we are faced with a choice: apply our usual test; drastically expand the availability of equitable jurisdiction for every subject of a search warrant; or carve out an unprecedented exception in our law for former presidents. We choose the first option. So the case must be dismissed.
A note aside goes here, about carveouts, but we can come back to those, whenever. It's interesting simply because SCOTUS Chief Justice Roberts' first term is distinguished by two powerful carveout decisions (Safford and Ricci) in which the majority just didn't feel like enforcing the law. As a comparative question, a carveout simply exceeds what Eleventh Circuit Chief Judge Pryor is willing to countenance; it's not insignificant.
The rest of the twenty-one page decision recounts the facts of the case and compares them against the standards; even without spectacular language, it's a rough bludgeoning. Marcy Wheeler↱ suggests "the facts of the case were copied from an earlier opinion--so a lot of this was already written". The Richey test is hard to explain outside its moment, but can lead to a jurisdictional allowance for civil action. The short answer, of course, is that nothing about Trump's complaint meets the standard. The callous disregard standard, for instance, guards against "a flood of disruptive civil litigation" against investigations. "The callous disregard standard has not been met here," the Court explains, "and no one argues otherwise." Not even Trump's filings claimed callous disregard. The Court mounts its high horse:
Instead [Plaintiff] says callous disregard of his constitutional rights is not indispensable to Richey's test. That is an incorrect reading of our precedent, as well as inconsistent with the longstanding principles outlined above .... And the fact that Richey considers three other factors in its test does not suggest otherwise. To the contrary, these factors underscore how rare this exercise of jurisdiction should be—even a callous disregard of constitutional rights is not enough, on its own, to allow for the type of relief that Plaintiff seeks. As we did in Chapman, we will consider the remaining factors for the sake of completeness.
It is unspectacular language, but also a quiet thrashing. Note the sentence about three other factors not suggesting otherwise; that and the following sentence, "To the contrary …", are the a quiet scolding of Trump's attorneys. The footnote on the type of relief considers the claim that "the special master process is necessary to determine whether a constitutional violation happened". The answer is deadpan: "This justification finds no support in our precedent and would result in a dramatic and unwarranted expansion of equitable jurisdiction."
The second factor of the test involves a the plaintiff's "individual interest in and need for the material whose return he seeks". Here, the court must take a moment to point out—
Plaintiff’s jurisdictional brief mischaracterized this standard, referring to “the parties' need for the seized material” (emphasis added). He is wrong to suggest that jurisdiction somehow depends on the balance of interests between the parties—the relevant inquiry is if he needs the documents.
Plaintiff has made no such showing. His jurisdictional brief in the district court asserted that the government had improperly seized his passports and that its continued custody of "similar materials" was "both unnecessary and likely to cause significant harm." But the passports had already been returned before he filed his first motion, and his jurisdictional brief did not explain what "similar materials" were at issue or why he needed them.
The district court was undeterred by this lack of information ....
And, yes, that last is an attention-grabbing line. It's an extraordinary paragraph:
The district court was undeterred by this lack of information. It said that "based on the volume and nature of the seized material, the Court is satisfied that Plaintiff has an interest in and need for at least a portion of it," though it cited only the government's filings and not Plaintiff's. But that is not enough. Courts that have authorized equitable jurisdiction have emphasized the importance of identifying "specific" documents and explaining the harm from their "seizure and retention" .... Neither the district court nor plaintiff has offered such specifics.
It is in trying to account for the district court that the Appeals Court opinion heats up and starts to glow. A simple sentence, "Indeed, Plaintiff does not press the district court's theory on appeal," takes on a whole new tone insofar as it criticizes not simply Trump and his attorneys, but Judge Cannon and the district court. "Instead," the Appeals Court continues, "he argues that the Presidential Records Act gives him a possessory interest in the seized documents. This argument is unresponsive."
It's like a multi-hit in a video game, and watching the multiplier count: "Even if Plaintiff's statutory interpretation were correct (a proposition that we neither consider nor endorse), personal interest in or ownership of a seized document is not synonymous with the need for its return." The footnote recalls oral arguments, golf shirts, pictures of Celine Dion, and also the government's concession that Trump "may have a property interest in his personal effects", and it really is a great setup. This is a court opinion, though, so the punch line is just that much heavier: "While Plaintiff may have an interest in these items and others like them, we do not see the need for their immediate return after seizure under a presumptively lawful search warrant."
(A note aside: There was some chatter about when we would get this decision, as if it was somehow late, and in that context part of the delay would be the complicated task of following Trump's argument well enough to figure out how to address it.)
The Appeals Court observes that Trump, having failed to establish his own need, tries to turn the standard back toward the Department of Justice, "arguing that the government does not need the non-classified documents for its investigation". The Court is straightforward: "This is not self-evident, but it would be irrelevant in any event. Plaintiff's task is to show why he needed the documents, not why the government did not."
Predictable, Trump "has failed to meet his burden under this factor".
The third factor is irreparable harm, "whether the plaintiff would be irreparably injured by denial of the return of the property". And if Trump failed to meet his burden, "again, the district court stepped in with its own reasoning".
The Appeals Court's patience is clearly thin at this point, but in addition to not being overly spectacular, there is also a tone of simplicity, as if talking to a child or, as such, barely competent adult.
The Appeals Court observes that "Plaintiff has adopted two of the district court's arguments":
On the first argument, Plaintiff echoes the district court and asserts that he faces an "unquantifiable potential harm by way of improper disclosure of sensitive information to the public." It is not clear whether Plaintiff and the district court mean classified information or information that is sensitive to Plaintiff personally. If the former, permitting the United States to review classified documents does not suggest that they will be released. Any official who makes an improper disclosure of classified material risks her own criminal liability .... What's more, any leak of classified information would be properly characterized as a harm to the United States and its citizens, not as a personal injury to the Plaintiff.
In terms of a barely competent adult, it's hard to tell whether the Appeals Court is addressing Judge Cannon or one of Trump's attorneys. There is a certain amount of rebuke in the paragraph, as if the Court should not need to endure these sorts of suits.
The next is similarly straightforward and quietly rebuking:
As for records that may otherwise be "sensitive," it cannot be that prosecutors reading unprivileged documents seized pursuant to a lawful warrant constitutes an irreparable injury for purposes of asserting equitable jurisdiction. Here, too, Plaintiff's argument would apply to nearly every subject of a search warrant. The district court's unsupported conclusion that government possession of seized evidence creates an "unquantifiable" risk of public disclosure is not enough to show that Plaintiff faces irreparable harm.
Remember, a basic idea, here, is that by the time one becomes a federal judge, they already know a few things. For the Eleventh Appeals, there is a tension between simply attending the processes of justice and the persistent need to wonder aloud what made Judge Cannon think she could behave this way.
Similar reasoning guides our approach to the other potential injury identified by Plaintiff: the thread and stigma of future criminal prosecution. No doubt the threat of prosecution can weigh heavily on the mind of anyone under investigation .... But without diminishing the seriousness of the burden, that ordinary experience cannot support extraordinary jurisdiction .... The third Richey factor also weighs against exercising equitable jurisdiction.
The part about the fourth Richey factor is almost painful, four paragraphs of barely tacit reproach:
Finally, Richey asks "whether the plaintiff has an adequate remedy at law for the redress of his grievance." .... In deciding this factor for Plaintiff, the district court's answer was that he "would have no legal means of seeking the return of his property for the time being and no knowledge of when other relief might become available." This is not a sufficient justification.
I know I said four paragraphs, but take a moment for this part: Judge Cannon's argument actually complains that he has no means of making DoJ give him back his stuff until they might need it later ("for the time being"), and doesn't know when he can ("no knowledge of when other relief might become available").
And, remember, a judge wrote that.
This is not a sufficient justification. To start, Plaintiff invokes Rule 41(g) in his brief on appeal, but only to say that it has been applied in other cases. The only argument that he has plausibly made … is for the return of documents "not within the scope of the Search Warrant." There is no record evidence that the government that the government exceeded the scope of the warrant—which, it bears repeating, was authorized by a magistrate judge's finding or probable cause. And yet again, Plaintiff's argument would apply universally; presumably any subject of a search warrant would like all of his property back before the government has a chance to use it.
Okay, that was just the end of the first of those four paragraphs, but note, here that the Appeals Court finds itself defending the magistrate against against the district court's arbitrary doubt of the judiciary. It's just something worth noting.
Plaintiff's alternative framing of his grievance is that he needs a special master and an injunction to protect documents that he designated as personal under the Presidential Records Act. But as we have said, the status of a document as personal or presidential does not alter the authority of the government to seize it under a warrant supported by probable cause; search warrants authorize the seizure of personal records as a matter of course. The Department of Justice has the documents because they were seized with a search warrant, not because of their status under the Presidential Records Act. So Plaintiff's suggestion that "whether the Government is entitled to retain some or all the seized documents has not been determined by any court" is incorrect. The magistrate judge decided that issue when approving the warrant. To the extent that the categorization of these documents has legal relevance in future proceedings, the issue can be raised at that time.
Part of the effort of reading through this Appeals Court opinion is much the same as writing it; trying to account for the Trump's strange arguments and Cannon's performance can be difficult. Part of this actually feels familiar, but inasmuch as the Eleventh Circuit Court of Appeals would appear to be having an experience akin to an internet argument, it is hard to explain just how stupid and low things have gotten. Put two sentences together: "So Plaintiff's suggestion … is incorrect. The magistrate judge decided that issue when approving the warrant." If you are Trump's attorney, and worth your license to practice law, then you already know this.
The lawyers know; the appeals judges know; they all know each other knows. The Appeals Court is attempting to posit a useful response to what really is inappropriate behavior by lawyers who know and a district court judge who ought to know. The Court has its manner of calling bullshit: "All these arguments are a sideshow," the opinion explains.
All these arguments are a sideshow. The real question that guides our analysis in this—adequate remedy for what? The answer is the same as it was in Chapman: "No weight can be assigned to this factor because [Plaintiff] did not assert that any rights had been violated, i.e., that there had been a callous disregard for his constitutional rights or that a substantial interest in property is jeopardized" .... If there has been no constitutional violation—much less a serious one—then there is no harm to be remediated in the first place. This factor also weights against exercising equitable jurisdiction.
So, that would be a, Richey says no.
But wait, there's more. It's one thing if Richey says no, but the Appeals Court has one more thing to say:
None of the Richey factors favor exercising equitable jurisdiction over this case. Plaintiff, however, asks us to refashion our analysis in a way that, if consistently applied, would make equitable jurisdiction available for every subject of every search warrant. He asks us to ignore our precedents finding that a callous disregard for constitutional rights is indispensable. He asks us to conclude that a property interest in a seized item is a sufficient "need" for its immediate return. He asks us to treat any stigma arising from the government's access to sensitive personal information or the threat of potential prosecution as irreparable injuries. And he asks us to find that he has no other remedy apart from equitable jurisdiction, even though he faces no remediable harm. Anyone could make these arguments. And accepting them would upend Richey, requiring federal courts to oversee routine criminal investigations beyond their constitutionally ascribed role of approving a search warrant based on a showing of probable cause. Our precedents do not allow this, and neither does our constitutional structure.
Only one possible justification for equitable jurisdiction remains: that Plaintiff is a former President of the United States. It is indeed extraordinary for a warrant to be executed at the home of a former president—but not in a way that affects our legal analysis or otherwise gives the judiciary license to interfere in an ongoing investigation. The Richey test has been in place for nearly fifty years; its limits apply no matter who the government is investigating. To create a special exception here would defy our Nation's foundational principle that our law applies "to all, without regard to numbers, wealth, or rank."
The citation on that last is "Brailsford … (1794)".
1794. "3 U.S. (3 Dall.) 1, 4 (1794)".
The appeals judges know. The attorneys know. Trump's arguments demean the court and denigrate attorneys. This is infamy, near to sacrilege.
The law is clear. We cannot write a rule that allows any subject of a search warrant to block government investigations after the execution of the warrant. Nor can we write a rule that allows only former presidents to do so. Either approach would be a radical reordering of our caselaw limiting the federal courts' involvement in criminal investigations. And both would violate bedrock separation-of-powers limitations. Accordingly, we agree with the government that the district court improperly exercised equitable jurisdiction, and that dismissal of the entire proceeding is required.
Notes on #198-99↑ Above
@emptywheel. "Pretty sure the facts of the case were copied from the earlier opinion--so a lot of this was already written." (thread) Twitter. 1 December 2022. Twitter.com. 1 December 2022. https://bit.ly/3UslXa2
United States Court of Appeals for the Eleventh Circuit. "Opinion of the Court". Trump v. United States of America. 1 December 2022. DocumentCloud.org. 1 December 2022. https://bit.ly/3Uvunxn
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