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EmptyWheel Correctly (I Think) Suggests The “Why” For the Flynn Pardon Tweet — Linking It To His Lawyer, Sidney Powell’s Role In Trump/GOP Election Cases

~ condor ~ 1 Comment

Do go read all of her fine dot-connecting, top to bottom — I cannot do it justice in this cramped space.

But Ms. Wheeler draws a very sensible straight line — from Sidney Powell’s in-court admissions, to the able USDC Judge Sullivan in the Flynn case, that she personally had discussions with the occupant of 1600 Penn, about the Flynn case… (which would presumably include begging him for a pardon of Flynn), in order to protect that same Individual No. One from additional criminal exposure, should Flynn need to offer evidence anew (to avoid jail, for perjury)… on the one hand — and the fact that Sidney Powell was (through the first half of this past week, at least) ALSO working as Individual No. One’s personal lawyer, in the Pennsylvania, Georgia and Michigan election lawsuits. Conflicting representations, anyone?

In any event, here is the latest Third Circuit opinion summarily dismissing Rudy G.’s Pennsylvania wing-nuttery, and a bit — just to show how deeply out in the deep blue winter Atlantic this whole crazy effort to overturn a now 6 million plus vote win, clearly achieved by Mr. Biden and Ms. Harris:

…The Campaign had to plead plausible facts, not just conclusory allegations. Plaintiffs must do more than allege conclusions. Rather, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face. . . .” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. The Second Amended Complaint does not meet Twombly and Iqbal’s baseline standard of specifics.

To start, note what it does not allege: fraud. Indeed, in oral argument before the District Court, Campaign lawyer Rudolph Giuliani conceded that the Campaign “doesn’t plead fraud.” Mot. to Dismiss Hr’g Tr. 118:19–20 (Nov. 17, 2020). He reiterated: “If we had alleged fraud, yes, but this is not a fraud case….”

Though it alleges many conclusions, the Second Amended Complaint is light on facts. Take the nearly identical paragraphs introducing Counts One, Two, Four, and Six: “Democrats who controlled the Defendant County Election Boards engaged in a deliberate scheme of intentional and purposeful discrimination… by excluding Republican and Trump Campaign observers from the canvassing of the mail ballots in order to conceal their decision not to enforce [certain ballot] requirements.” Second Am. Compl. ¶¶ 167, 193, 222, 252. That is conclusory. So is the claim that, “[u]pon information and belief, a substantial portion of the approximately 1.5 million absentee and mail votes in Defendant Counties should not have been counted.” Id. ¶¶ 168, 194, 223, 253. “Upon information and belief” is a lawyerly way of saying that the Campaign does not know that something is a fact but just suspects it or has heard it. “While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.” Iqbal, 556 U.S. at 679. Yet the Campaign offers no specific facts to back up these claims.

The Campaign has already litigated and lost most of these issues. Many of the Second Amended Complaint’s claims have already had their day in court. The Campaign cannot use this lawsuit to collaterally attack those prior rulings….

As I say… this is all just to round out the record. To document that Rudy and Sidney Powell are… terrible at the tasks of any actual lawyering. They are great spectable, in an entirely ironic fashion, melting both boot black, in one case, and pancake makeup, respectively — under hot TV lights… but they are not real lawyers.

Biden-Haris has won the 46th US Presidency. About that there can be no serious doubt. So… I’ll grin broadly, and march onward — toward a better… tomorrow.

नमस्ते

I Agree With “The Wise Latina” Justice: This Court Has Inexplicably Avoided “Strict Scrutiny” Review, In The Muslim Ban 3.0 Cases, But Applied It In NY Pandemic Order Case

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I think we should prepare ourselves for reading many “multiple concurrence” case outcomes. When there are six opinions, to announce what was a pretty clearly settled letter of the law case — and to go against that settled law, with the Chief Justice dissenting… we may safely infer that there is a wing of the court trying actively to change that same. . . settled law.

And that is not always a bad thing (think of the dismantling of Jim Crow in the ’50s and ’60s) — but it is going to be a more fractured near term, at the highest court.

Justice Sotomayor’s dissent (below quoted) does a masterful job of skewering the transparent political / ideological, rather than legal, arguments that Alito, Kavanaugh and Gorsuch make — pointing out that a “total Muslim ban” (in their view) wasn’t a strict scrutiny violation case, but including the words “house of worship” — where the activities in such places [according to all available life sciences evidence — (crowds singing together, in close proximity for over an hour)] greatly increase public health risks — in the challenged New York order… magically triggered strict scrutiny. [It is well-known that strict scrutiny review almost always results in a given measure being invalidated.]

In any event, I’ll predict that one day about three years (with the changing make up of the court, and the nation it serves) from now, the “Wise Latina” Justice’s dissent will be quoted approvingly, by the majority — to say public health orders, in a pandemic, neutral on their face… are enforceable:

…The Diocese attempts to get around South Bay and Calvary Chapel by disputing New York’s conclusion that attending religious services poses greater risks than, for instance, shopping at big box stores. Application in No. 20A87, p. 23 (Application). But the District Court rejected that argument as unsupported by the factual record. ___, F. Supp. 3d ___, ___–___, 2020 WL 6120167, *8–*9 (EDNY, Oct. 16, 2020). Undeterred, JUSTICE GORSUCH offers up his own examples of secular activities he thinks might pose similar risks as religious gatherings, but which are treated more leniently under New York’s rules (e.g., going to the liquor store or getting a bike repaired). Ante, at 2 (concurring opinion). But JUSTICE GORSUCH does not even try to square his examples with the conditions medical experts tell us facilitate the spread of COVID–19: large groups of people gathering, speaking, and singing in close proximity indoors for extended periods of time….

The Diocese suggests that, because New York’s regulation singles out houses of worship by name, it cannot be neutral with respect to the practice of religion. Application 22. Thus, the argument goes, the regulation must, ipso facto, be subject to strict scrutiny. It is true that New York’s policy refers to religion on its face. But as I have just explained, that is because the policy singles out religious institutions for preferential treatment in comparison to secular gatherings, not because it discriminates against them. Surely the Diocese cannot demand laxer restrictions by pointing out that it is already being treated better than comparable secular institutions.

Finally, the Diocese points to certain statements by Governor Cuomo as evidence that New York’s regulation is impermissibly targeted at religious activity — specifically, at combatting heightened rates of positive COVID–19 cases among New York’s Orthodox Jewish community. Application 24. The Diocese suggests that these comments supply “an independent basis for the application of strict scrutiny.” Reply Brief in No. 20A87, p. 9. I do not see how. The Governor’s comments simply do not warrant an application of strict scrutiny under this Court’s precedents. Just a few Terms ago, this Court declined to apply heightened scrutiny to a Presidential Proclamation limiting immigration from Muslim-majority countries, even though President Trump had described the Proclamation as a “Muslim Ban,” originally conceived of as a “‘total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what is going on.’”

If [Trump’s] statements did not show “that the challenged restrictions violate the ‘minimum requirement of neutrality’ to religion,” ante, at 2 (quoting Lukumi, 508 U. S., at 533), it is hard to see how Governor Cuomo’s do….

If the Tangerine Mussolini’s campaigning and governing, by explicit religious bias, doesn’t trigger strict scrutiny for these four core hard righters (Thomas, Alito, Kavanaugh and Barrett) — I agree… I don’t understand what the last century of development in our first amendment jurisprudence is all about. Onward, just the same, on a sunny holiday Saturday morning….

नमस्ते

Minor Tangent — But From $35/Share… To Almost $130/Share… Is Not Too Bad A Time… Time To Lighten Up.

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As regular readers of the other properties well know, I’ve been a long-term proponent (five plus years) of Moderna, and since very early 2020, an ardent holder of Moderna (in, at $35/ish a share).

And regular readers also know that I’ve repeatedly said the vaccine (when approved), will be subjected to simply staggering public policy (and in some geographies, direct governmental) pressures… to be priced affordably for the vast bulk of the resource constrained world.

So, I might say that this is the moment that the steak is. . . sizzling pretty loudly. But still sizzling… not yet served.

And, so… I’ve sold three-quarters of my holdings on the NASDAQ, just this morning, at about an average of $128.25 a share.

I still very firmly believe in this well-run and brilliantly-innovative life sciences company… but it is time to take some risk off the table.

I still foresee a very difficult pandemic winter of ’20-’21… so stocking up (on cold hard cash) is not a bad idea. It preserves flexibility. And while I will continue to hold the remaining 25 per cent, I may very well buy back in (in size), if/when Moderna sees a 30 per cent or more (temporary) downward correction. That would be a pure buying opportunity. Now you know.

Onward, grinning — ever grinning… going to see what’s on sale, online here on Black Friday.

नमस्ते

[O/T Holiday Fare] A K-5 Appropriate STEM Activity, From NASA’s OSIRIS-REx Team…

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Something to do, over the long weekend away — to keep the minds of the bright little ones (and bright they all are!)… engaged in STEM-related science projects (with a series of them here, actually — linked, as well). Use this the same way the “Flat Stanley” was used in the early 2000s, at school show and tell time… smile.

And a Happy Thanksgiving evening — goes out, to one and all — of good will….

नमस्ते

The Minnesota Orders Pre-Sage The Supremes’ 5-4 Midnight Decision. Have… A Better Thanksgiving!

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John overnight complains about the Minnesota Governor’s orders.

But Minnesota Gov. Tim Walz apparently knew where the Supremes were headed, as most of us guessed — with a new hard right Catholic shoved onto the court, in slap-dash fashion after RBG’s passing.

So the Governor’s orders largely comport with it. Uncanny.

Here, Mr. Hinderaker, I offer this to remind you of who you once were — long, long ago — at Dartmouth… and my earnest plea to become more of that human you once were:

Onward — and try to show just a little more kindness to all you encounter… than they may even be inclined to show to you, given your past treatment… of them.

P E A C E….

[U] The Departing Agent Orange Team Continues To Violate Lawful Federal Court Orders, As To CHILDREN In ICE Custody. Deplorable.

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In this matter, the remaining 55 or so days will seem… an eternity, until Mr. Biden can order the end of this foot =-dragging set of violations — supervised by one Sarah Fabian. I suspect she will be asked to leave her position, on the second day, if she hasn’t already departed voluntarily by then.

This is from the latest status report, filed overnight in LA’s federal district courthouse:

…Settlement ¶ 28A provides: “The INS, through the Juvenile Coordinator, shall also collect information regarding the reasons for every placement of a minor in a detention facility or medium security facility.” Settlement ¶ 29 provides: “[T]he INS shall provide to Plaintiffs’ counsel the information collected pursuant to Paragraph 28, as permitted by law, and each INS policy or instruction issued to INS employees regarding the implementation of this Agreement.” Defendants have not reported the reasons for holding Class Members (1) in CBP detention facilities, (2) in ORR facilities where Class Members are detained (i.e. not free to leave the facilities even if they are licensed), or (3) in ICE holding rooms, hotels, or transport companies under contract by ICE….

DEFENDANTS’ POSITION: Defendants are providing, or have committed to provide, all of the information required by Paragraphs 28.A and 29 of the Agreement. Plaintiffs’ characterization above of their continued requests for information is incomplete and therefore misleading as to what information they continue to request. To the extent that Plaintiffs continue to request that Defendants report information that is not required by the Agreement, Defendants decline to provide this additional reporting….

Updated, on “Pandemic” Thanksgiving Morning 2020: Some better karma — from a time long ago, in the “before times” — and an erstwhile commenter’s reminder of what we all thought, back then — about changing things:

In other words, the government has NOT provided… all the information required. How does Sarah Fabian sleep at night (only after walking her friends’ dogs, as a more important priority than making sure complete reports, about the safety of very young children in jails, are delivered to their lawyers… immediately, and with specificity — as ordered)? How?!

नमस्ते

[U] So Hinderaker Thinks It Is “Stealing An Election” NOT To Report Demonstrably False Hard-Right Lies

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Well… for four long years John hurled the silly and ineffective barb that resisters suffered from “Trump Derangement Syndrome“.

I guess this makes the entirety of the prior seven days’ output — from all of the old PowerLine white boys… “Trumpian Stockholm Syndrome“.

Perhaps the best exemplar of this phenomenon is John’s post tonight (and, by that I mean… the most preposterous).

In it, he would tell us that by NOT endlessly reporting on, and amplifying clearly fake “news” stories, the MSM “stole” the election for Biden/Harris. Uh-huh.

Let that sink in. It is literally the crux of his argument: he found some chuckle-head who supposedly surveyed Biden voters, and then told them about a series of made up falsehoods Fox and the “network/outlet” at above right were flogging endlessly, day after day — from mid Summer to November 4, 2020. [For good measure, the surveyor threw in some highly misleading “feel good” economic stories, about Trump.]

The net “result”(!) of this survey… was that supposedly something like 17 per cent of those Biden voters said they’d might like to change their vote, now — having heard about these (again, false — or at least highly misleadingly-framed) “stories”.

Let’s just assume that dubious figure can be substantiated, though I’m nearly certain it will not withstand any real statistical analysis.

It certainly doesn’t prove the proposition Hinderaker offers: that the main stream media stole the election from Trump. It might only mean that most real people are actually smarter than the frothy hard right outlets imagine.

It might well ALSO mean that… Trump’s own agit-prop is what did him in — in that it was so over the top (and then, this surveyor magically-happened to find the most gullible 17 per cent of Biden voters across our smart nation).

As I say, I don’t believe the 17 per cent figure — but even if I did… the fact is that Biden/Harris drew over 6 million more votes than Trump/Pence (my graphic needs updating — with additional votes certified, and Northeastern US military absentee ballots now officially audited and in the books, the figure has grown from over four million — to five, and now over six million, as of tonight’s posting). It is remarkable, in fact, how stable Mr. Biden’s popular lead over the incumbent was, for over six months. The Everest graphic… got it exactly right: people deeply disliked Trump and his divisive politics, which were, in the main, devoid of any actual rational policies.

Finally, if (as seems plain now) OAN is such a poor liar, why should we ever… lament THAT fact?

The only reason John does, is… yep: Stockholm Syndrome.

Updated: BTW, as I go — didja’ see that Parler was hacked, and over 5,000 real names, real SSNs and real state issued drivers’ license numbers… were obtained?

That’s a… perfect place for John and friends, indeed. The proof that karma is in fact a wheel.

G’night — grinning now… 56 days left.

About A Week Ago — Parker Solar Data [From Plunge No. Five] Was Released To The Public…

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We continue to be enthralled by the only spacecraft named for a still-living person. The solar discoveries data sets are promptly made available to the public — since our tax dollars fund it — and… we now have set number five.

Here’s to the U of C.’s Prof. Parker’s lithe and speedy little craft!

From the Parker team’s release [with links to the data — in that press release]:

…This latest batch of science data was collected by Parker Solar Probe’s four instrument suites this past summer, and covers the mission’s fifth solar encounter — including closest approach to the Sun, called perihelion, on June 7 — and a special observation period for the mission’s third Venus flyby in July.

The data can be accessed through NASA’s Space Physics Data Facility (SPDF) and Solar Data Analysis Center (SDAC), the APL Parker Solar Probe Gateway, and the Science Operation Centers of the four science investigation teams (the University of California, Berkeley; Princeton University; Harvard-Smithsonian Center for Astrophysics; and the Naval Research Laboratory)….

Smiling widely, as we watch… undulating purples move with unwasted grace, anew… onward… ever, onward.

नमस्ते

We Are Likely To See The Video And Notes From The September 1, 2020 “Barr Star Chamber” Meeting, In Kenosha, WI: With Pictures!

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It was closed to the press, but the Tangerine Oaf and Billy Barr, as well as numerous state and federal law enforcement officers were there — deciding how to more fully militarize local police forces, in secret.

The NAACP Legal Defense Fund sued, correctly pointing out that we don’t cotton to star chambers here in the New World. It is more than a little bit why many of the early ship-loads of people landing at Plymouth Rock — and in what would become Virginia — left England and Europe: to end the peril of trials held by secret tribunals, in abstentia. For that, Old World serfs could be imprisoned for life, tortured into a confession by the rack — or worse — beheaded.

So some of them came to the new land, and firmly established a government that would be transparent: it would let her people know what decisions were being made — about them. Especially as regards law enforcement.

Just look (at right) at how the dotard rolled heavy, into Kenosha, and then sealed off a south Kenosha public high school, with camo-clad militia units, and automatic weapons drawn, while he and his boys. . . met. That’s not cricket — and the able USDC Judge John D. Bates (sitting in DC) said so three weeks ago. Just this afternoon, he’s entered a new order in DC, requiring essentially real time disclosure of the notes, minutes and recordings of all such meetings. Read it all, but here’s the bit:

…ORDERED that, prior to releasing the Commission’s report and by not later than November 25, 2020, defendant shall release (1) any records (including transcripts) of the June 16, 2020 meeting between Attorney General William P. Barr and the Commission that are covered by 5 U.S.C. app. 2 § 10(b); and (2) the most recent draft of the Commission’s report covered by § 10(b). The parties agree that, given the Court’s conclusion that the Commission is subject to FACA, any “records, reports, transcripts, minutes, appendixes, working papers, drafts, studies, agenda, or other documents which were made available to or prepared for or by each advisory committee” should be available for public inspection. See 5 U.S.C. app. 2 § 10(b); Joint Status Report [ECF No. 55] at 5, 9. Records of the June 16 meeting and the most recent draft of the Commission’s report are easily available and clearly covered by the language of § 10(b) — and defendants have not argued to the contrary. Thus, requiring the immediate release of these materials allows plaintiffs the opportunity to use the materials in promptly challenging the report upon publication without unduly burdening defendants….

It is further ORDERED that, by not later than December 4, 2020, defendants shall (1) make an initial public release of other materials covered by § 10(b) [Ed Note: this doubtless includes the materials from the Septmeber 1, 20202 South Kenosha High School sessions]; (2) provide plaintiff an estimate of the volume of remaining materials that are subject to disclosure under FACA and a proposed schedule for releasing those materials; and (3) provide plaintiff a description of any categories of documents, including working group documents, that defendants possess but contend are not subject to disclosure under § 10(b)….

It is further ORDERED that, by not later than December 16, 2020, the parties shall submit a joint status report that details their progress towards completing document release, identifies any areas of disagreement regarding what documents are covered by § 10(b), and includes proposals for resolving any areas of dispute….

If nothing else, the current occupant of 1600 Penn has left middle-school children a rich legacy of why it is our Constitutional rights and immunities should never be taken for granted. He literally has found almost every possible way to violate the ideas upon which are charters are based.

I guess that’s the only silver lining I can find, in my playbook (well… that, and it led me to meet loads of great people in Kenosha just three days later, on a return trip — touring by invitation, with Mr. Biden’s team — and then flipping Wisconsin back to blue, by registering tons of new voters who firmly believe in all the ideas that are… the best of what people mean when they say “America“).

Onward, smiling all the same — we only need endure about another 57 more days now….

नमस्ते

The Below, Explained… Later Tonight — To Open The Holiday Week, With Better Karma…

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Ahem. Coming shortly: the poetic — and scientific — explanations, for why the purples undulate, while the greens form long spears — picket fences, if you will. . . in the northern night skies, of late summer.

The ribbons and picket fences were in 2014 dubbed “STEVEs” — from “Over the Hedge” the 2006 animated feature, in which all the denizens assign the name “Steve” to any being they cannot identify. It now seems clear that the combination is not an aurora, in the traditional sense — as it occurs in lower latitudes, and true auroras don’t exhibit these long, streaking spears — the green picket fence optical effect, below the traditional swaying bands of purple. Interestingly, the back-ro-nym “Strong Thermal Emission Velocity Enhancement” was coined by Robert Lysak, at a meeting of the American Geophysical Union, almost exactly four years ago, tonight — which was subsequently adopted by the scientists at NASA’s Goddard Space Flight Center.

The green “fence” emissions seem to be related to eddies in the supersonic flow of charged particles, similar to the eddies seen in a river, which move more slowly than the other water around them. The green bars in the picket fence are moving more slowly than the structures in the purple emissions, and some scientists have speculated they could be caused by turbulence in the charged particles from space.

We may soon know (with fairly high confidence) the specific mechanics of the celestial physics in play here. But for now, NASA | Goddard will continue to study it — thus:

. . .In 2018, a new aurora-like discovery struck the world. From 2015 to 2016, citizen scientists reported 30 instances of a purple ribbon in the sky, with a green picket fence structure underneath. Now named STEVE, or Strong Thermal Emission Velocity Enhancement, this phenomenon is still new to scientists, who are working to understand all its details. What they do know is that STEVE is not a normal aurora – some think maybe it’s not an aurora at all – and a new finding about the formation of streaks within the structure brings scientists one step closer to solving the mystery.

“Often in physics, we build our understanding then test the extreme cases or test the cases in a different environment,” Elizabeth MacDonald, a space scientist at NASA’s Goddard Space Flight Center in Greenbelt, Maryland, explains. “STEVE is different than the usual aurora, but it is made of light and it is driven by the auroral system. In finding these tiny little streaks, we may be learning something fundamentally new in how green auroral light can be produced.”

These “tiny little streaks” are extraordinarily small point-like features within the green picket fence of STEVE. In a new paper for AGU Advances, researchers share their latest findings on these points. They suggest the streaks could be moving points of light – elongated in the images due to blur from the cameras. The tip of the streak in one image will line up with the end of the tail in the next image, contributing to this speculation from the scientists. However, there are still a lot of questions to be answered – determining whether the green light is a point or indeed a line, is one extra clue to help scientists figure out what causes green light.

“I’m not entirely sure about anything with respect to this phenomenon just yet,” Joshua Semeter, a professor at Boston University and first author on the paper, said. “You have other sequences where it looks like there is a tube-shaped structure that persists from image to image and doesn’t seem to conform to a moving point source, so we’re not really sure about that yet.”. . . .

Grinning. . . regular diaspora Zoom fam call, completed now.

And, in motion, the purples:

नमस्ते