Category: Uncategorized

That “Loquacious” Sidney Powell… Probably Just Burned Michael Flynn’s Chances — Of Skating.

~ condor ~ Leave a comment

Welp. It has indeed been a rather… tumultuous news day (and the debate is still hours off). But this later-arriving bit (as I had other responsibilities — and couldn’t, much as I wanted to — arrange my day so that I could listen to what turned out to be the five hour long Flynn hearing starting around midday in DC)… but it may well… take the cake. [Backgrounder, here.]

It seems Sidney Powell felt a need to impress Judge Sullivan (bad idea!)… with just how wired in she is… to well, everything. So she told the able USDC judge that she has spoken to Trump directly about the Flynn dismissal proceedings — and that she has spoken more than once to the lead Trump Campaign lawyer, also about these proceedings. Then… she claimed the judge couldn’t ask about them, because (wait for it!) those conversations were “executive privileged“.

I N S A N E.

As EmptyWheel memorably just put it, that cannot help but leave the court with the impression that this is a political moment, and a political… attempted dismissal. It may be too soon to definitively call the outcome, here — but I do think Judge Sullivan will, based on Ms. Powell’s self-important admissions… reject the Flynn dismissal motion, from Bill Barr:

…Sidney Powell [Michael Flynn’s main lawyer, now] admitted that she has spoken to the President about this case, and also spoken with Trump’s campaign lawyer, Jenna Ellis, about it, the latter apparently more than once. Powell tried to claim Executive Privilege for her conversation(s) with the President about the case, until Sullivan pointed out the sheer absurdity of that….

In what manner (or… on what planet?!) would the sitting president have “a priviledge” to assert when talking to a criminal defense lawyer who is there representing ONLY her twice pled guilty to felonies criminal client — over conversations involving her “self-admitted felon” of a client, who was fired now three years ago for lying to the vice president and president, about working for a frenemy government, while sitting in as a National Security Advisor?

It is a very good thing, as judges often say, from the bench — that most crooks… are stupid. But this Trumpian crew, they really… exceed, with all their excesses — in chuckleheaded numbskull antics. On to watch a debate — and eat home-made fudge — to make it bearable. Grin….

नमस्ते

Once, Long Ago — When An “Immovable Object Met An Irresistible Force…”

~ condor ~ Leave a comment

This is now (based on a few wide-ranging US federal courts searches) one of the longest commercial trademark/name disputes in US history — and it is absolutely so, if we measure from the date of the last wide ranging settlement in the middle 1970s (and count only actually identical names — like the WWF v. WWF one)… but by way of comparison World Wildlife vs. World Wrestling (over the WWF acronym) only lasted 13 years. We are well over 50 now, here — and just over 100, if we count from that day of the signing of the Treaty of Versailles (at the close of WW I), all in.

I mention all of this with a twinkle in my eye, since it seems that even the New Jersey federal courts are tiring of this battle of titans, in the pharmaceuticals space — German v. US to and fro’. We’ve long advocated for, and like many others, encouraged each side to find a… negotiated settlement.

As of this morning, the parties have been ordered to either select a private party mediator, or choose a settlement conference — in front of the court, as at least one route to getting this one moved off dead center, thus:

…As discussed during the September 29, 2020 telephone status conference, on or before October 12, 2020, the parties will inform the Court whether they wish for the Undersigned to conduct a settlement conference with them before the end of November, or whether they have agreed to the selection of a private mediator, as well as three possible dates in November for such a settlement conference if it is to be before the Undersigned. So Ordered by Magistrate Judge Michael A. Hammer on 9/29/2020….

We shall, as ever — see. And of course, the same battle rages on in the courts of Germany, Japan, parts of South and Central America, Australia and Canada — as well as the UK — to name just a few. I’ve long said it would save both titans tens of millions in the long run (in legal fees alone), if they would settle, but I now suspect it will grind on, deep into 2021 — and perhaps beyond.

Onward on a cool, breezy fall afternoon — and in an ironic echo of the above — I for one am expecting a lot of heat, but very little light, from tonight’s debate. But as a citizen, I guess I have a duty to watch… even if I cannot stand the sight (or sound) of the incumbent.

नमस्ते

[UPDATED: Live Oral Argument Underway] Sarah Fabian, For Trump — Will Get Blasted (Again!) Tomorrow, In The Ninth Circuit — Re Her Latest Flores Appeal

~ condor ~ Leave a comment

UPDATED 09.30.20 @ 6:30 PM EDT: Sarah Fabian sent an underling to the oral argument. As I listen in, I have to say, this young man is going to lose. The panel is clearly indicating it likely does not have jurisdiction, since the law of the case has already foreclosed this appeal, via a prior decision inside these same chambers. But to the extent they reach the merits, the panel is uniform in suggesting that Team Trump is affirmatively hampering contact among family members, and among families and their retained counsel. Trump’s lawyer is arguing that the Flores agreement doesn’t allow for or require that in a Title 42 setting.

This is simply. . . preposterous. DHS is deciding these matters, and it is no defense to say that DHS (of its own volition) may remove children from the protection of the Flores agreement (72 hours maximum hold, but then children must go to a licensed facility) with a stroke of a pen, by simply calling them subject to Title 42. A concept that finds no support anywhere in any of the Flores documents, since 1985 — to this day. We are skating close to the line of sanction-able advocacy. I have a dinner commitment, so I am not going to listen to the end — but Trump is definitively going to lose here. Again. End update.

Tomorrow, Sarah Fabian will argue again about matters that were already decided against her client — in this same case — in the same Ninth Circuit. This “will not end well” for her, sez Condor.

Overnight, the Ninth Circuit panel told her, by order, to be ready to explain why she thinks the august court even has jurisdiction to hear this appeal. The specific prior case the Ninth Circuit order references, is here — and the operative bit, is below:

…Rather than modifying the Agreement, the district court appropriately interpreted it as consistent with both the INA and our prior interpretation of the Agreement. We therefore lack jurisdiction over this claim. . . .

Finally, the government argues that the district court erred in concluding that the Agreement prohibits the government from detaining minors in secure, unlicensed family detention centers. The district court addressed this issue directly in its July 2015 order. Although the government appealed that order, it did not on appeal challenge the district court’s holding on this issue. See Flores v. Lynch, 828 F.3d at 901. “[A] party cannot offer up successively different legal or factual theories that could have been presented in a prior request for review.” Sec. Inv’r Prot. Corp. v. Vigman, 74 F.3d 932, 937 (9th Cir. 1996).

The issue belatedly raised in this appeal is not properly before us.

We dismiss the appeal for lack of jurisdiction.

DISMISSED….

In this lawyer’s opinion, Ms. Fabian is… rapidly approaching the bright red line where she could be labeled a “vexatious litigant” in the Ninth Circuit, and subject to disciplinary proceedings. She continues to endanger vulnerable children’s very lives… with her nonsense — and repetitive — appeals.

नमस्ते

As If 2020’s “Murder Hornets” Weren’t Scary Enough…?! Seems It All Hits… At Once.

~ condor ~ Leave a comment

[Back to our old power alley, for a moment:] Yesterday, it became clear that one of the nation’s largest hospital chains was suffering a serious systems outage. The company has been very taciturn, as to exactly what the issue is/was. However, based on third party reports, it now seems equally clear that at least some of the affected health care facilities’ IT employees saw “.rky” extensions on executable files no one seems to have intentionally installed.

This would point to an elusive form of ransomware called “Ryuk” — the Russian originator of which had long said he wouldn’t target life saving health care installations, as he didn’t want… innocents’ deaths on his hands. It seems some group of someones has purloined his code, or he has… changed his mind. Here’s a bit, from one of several of the more alarmist MSM reports — but it remains the company’s position that no patient care decisions were affected:

…Justin Heard, Director of Security, Intelligence and Analytics at Nuspire, noted that up until recently, Ryuk was used solely to target financial services, but over the last several months Ryuk has been seen targeting manufacturing, oil and gas, and now healthcare.

“Ryuk is known to target large organizations across industries because it demands a very high ransom. The ransomware operators likely saw UHS as the opportunity to make a quick buck given the urgency to keep operations going, and the monetary loss associated with that downtime could outweigh the ransom demand,” he explained.

“Ryuk Ransomware is run by a group called Wizard Spider, which is known as the Russia-based operator of the TrickBot banking malware. Ryuk is one of the most evasive ransomware out there. Nuspire Intelligence has repeatedly seen the triple threat combo of Ryuk, TrickBot and Emotet to wreak the most damage to a network and harvest the most amount of data.”

Some ransomware operators have previously stated that they would refrain from hitting healthcare organizations. Despite that, the number of attacks targeting medical institutions continues to rise….

There are claims in that media piece (wholly unverified) of at least four deaths in hospitals yesterday, due to the apparently-widespread systems outages. I will for now assume that is hyperbole, and just broadly note that 2020 cannot end quickly enough.

Damnation. We all now know that murder hornets (thus far, an unconnected plot element) are going to feature in the year’s “season finale” — even in the dead of December’s icy blasts. Onward, with a wry grin, and overnight visits….

नमस्ते

As It Happens… Mr. Hinderaker: Moron. AGAIN.

~ condor ~ 1 Comment

Come now — let us reason… together.

Unlike John (a former litigator), I am actually a lawyer who does the tax aspects, among other things, of real estate companies, and life science ones. I have an honors undergrad degree in both accounting and finance. And more importantly — I have around 30 years experience in these fields, from small (under $5 million) to large (over $10 billion).

I will get the most glaring of John’s errors out of the way first; he wrote:

“…I understand that someone at the IRS feloniously leaked Trump’s tax returns for more than 20 years….”

There is no proof of that — in fact, it is more than likely that someone inside one of Trump’s accounting firms leaked them to The Times.

But… now on substance — it is the part that neither Hinderaker or Hayward mentions, that is most damning.

For now, forget all else (though it will all be provable) — it is highly unlikely that the one central alleged fact set out in these admitted-as-genuine tax documents, from both the 2016 story and this current one… is fabricated:

That is that he is deeply personally indebted to unknown third parties (something he appears to have greatly under-disclosed, on his FEC filings), perhaps now approaching over $500 million, on which some someone(s) hold his personal guaranties, and thus ones he cannot flush in a chapter (as he did in his prior five bankruptcies), not without surrendering all his assets, minus $6,000 to start over with. That he will never do.

So… Who holds that guillotine, over his neck? That is relevant to voting, in 2020.

And that leads to a second point (for now): if he was to be able to deduct those prior losses (under applicable federal tax law), against “The Apprentice” show income, he was required to completely divest his interests in the loss holdings.

Tonight, the documents establish — just on what I’ve seen — that he still held 5% in some of the entities. And thus, all the debt written off arguably became additional, non-cash, phantom income (i.e., taxable) as to him. It seems clear he never paid any tax on any of that. This would explain the years of audit back and forth — as the Service works to prove he wasn’t entitled to take those deductions.

In sum, it is essentially the opposite picture John just tried to paint: the years of audits do not mean he did nothing wrong — they mean (most likely) there are layers and layers to his frauds… and it takes a looooong time, to sort it all out — among his 300 or so subsidiaries.

Here (for now) endeth this lesson, John.

You sir, are… a pure

L I A R.

Eighteen Page DC Opinion Enjoining Trump’s TikTok Lunacy… Is Now Public.

~ condor ~ Leave a comment

[House-keeping note: I am using a new (not directly related to the opinion) graphic. . . because the Republican Senate Election PAC is selling tees. . . which denigrate the Notorious RGB icons, by simply stealing them, and using them for ACB. I won’t have it. So — as this is all likely to end up in the Supremes in any event, we will use my “correction” of theirs, as our graphic today.]

Do go read it all — but here is a bit.

…Section 1702(b)(3)’s express limitation applies to “commercial” informational materials. If prohibitions on business-to-business transactions could not constitute the regulation of “informational materials,” then there would have been no reason for Congress to include the word “commercial” when defining the scope of § 1702(b)(3)’s limitation. United States v. Menasche, 348 U.S. 528, 538–39 (1955) (directing courts “to give effect, if possible, to every clause and word of a statue”).

To be sure, TikTok (like a news wire, which is expressly identified in IEEPA’s carveout) is primarily a conduit of “informational materials.” In that sense, it is (among other things) a “medium of transmission,” and IEEPA provides that this carveout applies “regardless of format or medium of transmission.” 50 U.S.C. § 1702(b)(3). That is especially true where, as here, the transmitting medium is inextricably bound up with and exists primarily to share protected informational materials….

There is something to [the government’s counter-] argument, especially as foreign adversaries’ use of information and data (and the United States’ efforts to respond to and combat those efforts) becomes ever more important. But it does not find support in the text of the statute. In fact, subsection (b)(3) forecloses even the indirect regulation of news wires, another parallel kind of information medium that foreign adversaries could exploit to promote misinformation. To be sure, TikTok’s users share more than just news, but that fact makes it more likely that the prohibitions here fit within the plain meaning of subsection (b)(3).

Like the informational-materials limitation, § 1702(b)(1) states that IEEPA’s grant of authority does not include the “authority to regulate or prohibit, directly or indirectly… any… personal communication, which does not involve a transfer of anything of value.” 50 U.S.C. 1702(b)(1). It is undisputed that the Secretary’s prohibitions will have the effect of preventing Americans from sharing personal communications on TikTok. Reply, ECF No. 26, 12. As Plaintiffs put it, the prohibitions “will destroy this online community, first by requiring the removal of TikTok from… U.S. app stores, and, when the remaining Prohibitions come into effect on November 12, 2020, shutting down TikTok entirely….”

For the foregoing reasons, Plaintiffs’ Motion for a Preliminary Injunction is granted as to paragraph 1 of the Commerce Identification….

It is delicious that textualists (like Scalia before her, and ACB, herself — perhaps to come) are absolutely foreclosed from arguing about a speculative intent of Congress, as we see above — from Judge Nichols — where the plain language of a statute prohibits something Trump wants to do. Delicious. And that means we need not even reach the clear first amendment violations, to strike his nonsense. [I will, perhaps immodestly, note that the able judge above repeated, nearly verbatim, my analysis — from the first week of August 2020.] Onward, grinning.

नमस्ते

I’ll Treat Hinderaker’s “Story” — On (Illusory) Democratic MN Voter Fraud — With All The Seriousness It Merits… [None]

~ condor ~ Leave a comment

As he did in the late Spring, John has returned to a faux-narrative out of Breitbart and Project Veritas — in other words, from sources repeatedly-proven completely… non-factual — alleging that Rep. Omar is presently engaging in some ill-defined ballot harvesting.

Y A W N.

This is entirely false. What is new, is that after the blockbuster NYT Trump avoidance of taxes story yesterday, and Brad Parscale’s nervous breakdown last night (and now involuntary mental health hold), with what his wife described as an attempted suicide, subsequent arrest, followed by hospitalization in Ft. Lauderdale… Hinderaker knows Trump will lose “bigly” in about 35 days.

So John has decided — it is time to deflect, from all this bad news.

There’s a silly Hunter Biden non-story (remind me — is he running for any office?), by his co-bloggers as well, overnight. So — at above right is the seriousness he merits — a modified Ramirez cartoon, from that same Spring — showing how Ivanka harvests votes with her Chinese trademark electronic voting machines, in… Florida. [Ramirez had in his original comic… alleged that HRC was harvesting ballots in Chicago… over three years after the election. Charming.]

More seriously — this is the graphic John is actually apoplectic about (below) — from fivethirtyeight.com this morning.

Now you know — and the Everest graphic has actually gotten worse — it is now about 78-22, against Trump’s re-election.

Grinning — and we will shortly post the able Judge Nichols’ full opinion enjoining Trump’s TikTok lunacy. BTW, as proof that the actual law still matters, the able DC USDC Judge Nichols, a Dartmouth Law grad — was appointed to his seat, about two years ago… at the request of one… Donald J. Trump.

Sorry, Donnie. The first amendment means exactly what it says.

Out.

This Is Still A Human Being We Are Talking About. I Have Empathy, For the Man… And The Tulsa TikTok Thing… Clearly Broke Him.

~ condor ~ Leave a comment

Look, I will make no snide comment about him, myself. He is plainly ill, and suffering — and needs help. It is good that he’s been hospitalized. Maybe he might now begin to repair whatever in him… is so deeply broken — far away from all his firearms.

Even so, it would be logical to infer… that the timing of the release of the top-line, on tonight’s order in DC, enjoining Trump’s attempt to ban TikTok, nationwide. . . looks like more than just coincidental to the sad events just now in Ft. Lauderdale.

And so, for tonight, I am going to completely ignore the Trump avoidance of federal income taxes story in the NYT (though come tomorrow it will properly garner immense attention — about the fitness of the current occupant of 1600 Penn.) — and just remark again, on what a cast of… well, odd ducks Trump seems to spend all his time and energy with, and on. That alone ought to give voters pause: is there anyone in his mal-administration or campaign who is not already… tainted in some significant way? I can think of no one. [Though Mr. Hinderaker and his blogging crew are barely even on the periphery of what might be considered Trumpian… advisors… they each definitively make the odd duck case-in-point, no?]

Finally, some political pundits are suddenly openly speculating that Trump will use this Parscale melt-down as an excuse to skip the Tuesday debate. He certainly won’t want to answer Mr. Biden’s pointed questions, in front of America — when it is equally clear that the Bidens paid over $3 million in taxes last year… while Trump paid… $750.

Personally, I’d think a no show is… unlikely. If Trump is a no show at the debate — it means he is conceding a landslide loss, 35 days before it transpires. We shall see. Do keep a good thought for this man — he needs to find his way out of those dark woods he has, in fairness, placed himself deeply into.

…Police have not confirmed that the barricaded man was Parscale, who worked for Trump, but records confirm that the property in the 2300 block of Desota Drive in Fort Lauderdale is owned by Parscale, 44, and his wife, Candice. Local 10 spoke to neighbors in the Seven Isles neighborhood who also said it was the former advisor to the President.

Fort Lauderdale Police responded to a home in reference to an armed male attempting suicide Sunday afternoon. When officers arrived on the scene, they made contact with the wife of the man who told them her husband was armed, had access to multiple firearms inside the house and was threatening to harm himself. She had placed the 911 call, according to police….

I wish him… peace. And, starting tomorrow morning, Trump is likely to have no peace whatsoever — nor should he. A metaphorical Hurricane Katrina, fashioned of all his own collected lies… is now descending on his little house of Go-Fish cards.

नमस्ते

[U: Enjoined.] Live Blogging The TikTok Preliminary Injunction Hearing Now…

~ condor ~ Leave a comment

Updated: told ya’. Paragraph 1 enjoined. . . end, update.

As soon as all appearances have been entered, we will begin the live blogging.

Hit refresh often, to see new material.

We are underway. . . .

✿ We will focus primarily on only matters that will not reveal classified matters, in our discussion of irreparable harm under Paragraph 1 of the challenged order, says USDC Judge Nichols. . . .

✿ This attempted shutting down of a US entity with one third of the nation as members, an expressive platform that adds 200,000 new members per day — focusing primarily on protected expression, 30-some days away from a national election, is unprecedented in US history. Mr. Hall for TikTok speaking first. . . .

✿ Threre is simply no rational basis for tonight’s single provision (Paragraph 1) taking effect, at midnight — while all else (Paragraphs 2 through 5) is still another six weeks off — is thus itself a violation of the APA in itself. . . .

✿ The cutoff tonight if it occurs, will end all security updates, to existing users — which, if the goal is to prevent compromise by malign government actors outside the US, this app will become more not less vulnerable to misuse, by — for example. . . Chinese state actors.

✿ Mr. Hall suggests the primary reason, after all, is to punish a business that embarrassed the 45th president. . . this is simply punitive. . . .

✿ The plain language of the statute the government relies on in issuing this directive. . . directly prohibits the action Trump attempts here, say the lawyers for TikTok.

✿ The able judge asks for TikTok’s view of the constitutional questions; and the reply is that it cannot be that this is a simple business to business regulation case (as the Team Trump lawyers claim) like Acara, as the “core of the business here” amounts to a prior restraint of expressive conduct on matters of substantial public concern. . . .

✿ The government counsel (now up at the invitation of the judge) claims that decisions on national security are non-justiciable questions — may not be reviewed by the courts. [This is a mis-statement of the existing federal law.]

✿ Judge Nichols (in the form of a question, adroitly) asks the government to explain whether determinations made about the carve-out in the statute it relies on are reviewable by a federal court. The government grudgingly concedes that the carve out is in fact reviewable. . . .

✿ The government’s view is that shutting off security updates as of tonight will only cause “speculatve” harms, unless TikTok is admitting today that its app is insecure, as presently running. This is a silly rejoinder. If the goal is national security, the government ought to want security updates to continue. If on the other hand, the purpose is to punish Trump’s perceived political enemies, this shutdown tonight makes perfectly good sense.

✿ Judge Nichols asks whether, if the government believes every video clip posted to TikTok is purely a “transaction, for an exchange of value” and not the communication of information, from one to another user. . . why isn’t the government’s action a “direct regulation” of communications based on their content. The government cites Walsh — and the able judge says (correctly) Walsh is really all about a Chevron analysis (which considers how much deference a judge should give a government determination in an ordinary regulation of business transactions case — not in a prior restraint / prohibition of expressions setting) — i.e., not a case similar to our current TikTok case.

✿ In sum, the able judge clearly is implying he doesn’t think Walsh controls, and it doesn’t answer the questions set out here in TikTok.

✿ The judge asks for the government’s best argument that the first amendment is not violated here. The answer offered claims that this executive action impacts all US citizens equally, so it cannot be expressive content related. This is an entirely preposterous view. The government cites business regulations cases — and simply ignores the applicable law.

✿ Let’s hear your defense of a due process claim, says the judge (and the judge broadly hints that TikTok wasn’t accorded all the process it was due) — and the government again lists business regulation decisions.

✿ The able judge is going to enjoin Paragraph 1 by late tonight — that is now crystal clear.

✿ Judge Nichols is now accepting closing statements. . . TikTok will win. We are certain of it.

✿ Judge Nichols will issue an opinion by later today. . . with a public order containing the conclusion only (that TikTok will win). Then if there are materials to be redacted the parties will first see the opinion — then the fuller opinion may be released tomorrow. We are adjourned.

It is fairly astonishing that my government would ever feel a need to make such patently-stupid claims. But here we are.

नमस्ते

An Excellent Amicus Briefing — Seeks Right To Weigh In On TikTok Matter…

~ condor ~ Leave a comment

In view of the gravity of the core US liberty interests at stake in this case, I’ll exercise MY first amendment rights — and make it available to the public here — even before the able judge rules that it may be filed.

Do enjoy all of it — but here is a bit:

…The actions taken by the White House and the Department of Commerce (together, the “Government’s actions”) in this case are so unnecessarily broad that they fail the First Amendment requirement to employ the least-restrictive means of achieving the competing government aims of national security. Today, according to media reports of Central Intelligence Agency findings, no data on American users of TikTok is stored in or been shared with China. The Administration has thus far provided no evidence to the contrary, nor has it provided evidence that China’s Communist Party or military have acquired data on TikTok’s users in the United States.

To the extent that the Administration may provide the court with classified information bearing on these questions that it cannot share with the public, that information must be of sufficient probity, weight, and certitude to warrant sweeping aside the significant First Amendment interests. Otherwise, the lack of evidence — and the breadth of the proposed ban on a social media platform that would curtail access for nearly a quarter of the U.S. population — leads to the conclusion that the Government’s actions fail to meet the requirement of narrow tailoring as set forth in applicable Supreme Court precedents.

The Government’s actions are unprecedented in scope. There is no previous example in U.S. history of a complete ban of a media platform that directly deprives a quarter of the U.S. population access to information on that platform. Neither is there any precedent for depriving so many Americans of their opportunity to express themselves on that medium. As outlined below, the needless breadth of the Government’s actions leaves open the opportunity to employ far less restrictive means to achieve its objectives. Because less-restrictive means are available to vindicate the Administration’s national security concerns, the Government’s actions should not be implemented as proposed….

Just filed, a press motion, to formally secure the dial in info, on the PACER docket for the case. [I got you covered, AP]:

“…Plaintiffs’ challenge to the legality of the government’s attempt to ban TikTok — a popular mobile video app with a reported 100 million active users in the United States — is a matter of intense public interest and concern. Journalists and news organizations reported extensively on President Donald J. Trump’s August 6, 2020 executive order “Addressing the Threat Posed by TikTok,” and have covered this lawsuit since it was filed on September 18, 2020. Members of the press — and the public — have a strong interest in listening, in real time, to the parties’ arguments, as well as any rulings issued or other actions taken by the Court at tomorrow’s Preliminary Injunction Hearing….”

I have the full dial in details, got them from the clerk in chambers, late yesterday — if the court doesn’t post it by 7 AM EDT tomorrow — I will post it right here.

Namaste….

Onward. . . grinning ear to ear.

नमस्ते