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[U: Live Blogging Hearing] DC Beat: Trump’s Re-Animated TikTok Threats… Put An Entirely New Federal Injunction Proceeding On The Docket. YAWN.

~ condor ~ 1 Comment

Updated: once appearances are all entered before Judge Nichols, we will start live blogging — in about 5 minutes, now…

We are underway. Judge Nichols says he expects to decide by Sunday, unless Trump relents on his 27th threat. Trump’s lawyers think the supposed banning is “minor”….

Judge Nichols asks for citations to any administrative record as to the rationale for the banning…. there is none, yet — says Trump’s lawyer.

Judge asks about TikTok’s similar California suit. . . John Hall for TikTok says they tried, but much of the delay is due to Commerce’s 45 day delay. And the legal theories (see below) were laid out in LA a month ago.

Significantly, there was a business solution, but now Trump has changed the requirements for the business solution.

Moreover, it was only on this Tuesday that Trump reinstated the ban threat. And as of now, there is no agreement as to an M&A deal.

Trump’s lawyers will not (as of now) agree to “added delays” on the order taking effect. We are now likely headed to emergency hearings this weekend. Judge Nichols taking final statements from each side. Order to issue shortly. Briefs due tomorrow, and Saturday, at 2:30 PM; Sunday 10 AM hearing on TRO, unless Trump relents by 2:30 PM tomorrow. We are… adjourned. End, live blog.

So — to recap: the Trump attempted closing of the WeChat functionality, remains enjoined, nationwide — out of San Francisco’s federal district courts, as of last Saturday afternoon.

In the last 48 hours (because chaos is his only brand!), Trump has mis-spoken (to put it most-charitably), and on video — about the contours of the deal he previously “approved” — between TikTok, and Oracle and Walmart. Specifically, he has directly contradicted what the parties themselves have said will be the ownership structure (with ByteDance said to still be in strong super-majority control of the US entity’s voting securities).

So. . . Trump today purported to re-assert a September 27 potential “banning” date, for TikTok overall (but not WeChat), if his demands aren’t met (whatever those might be!).

And that led TikTok’s US lawyers to file in DC, for a new preliminary injunction motion — against the enforcement of these lawless and ill-starred “orders” out of Trump’s camp. That is now set for a DC federal district court hearing (to decide whether there will be weekend oral arguments, on a TRO — among other matters) tomorrow, at 10 AM EDT — the 24th (I’ll live blog it!), thus (from the over 50 page memo of law supporting the motion by TikTok for the preliminary injunction, filed tonight):

. . . .[T]he President asserted that for him to approve a restructuring that would avoid the ban, the Treasury Department had to receive a “substantial portion” of any price paid by the U.S. acquirer or partner. Ex. 15; see Ex. 16 at 2. It is entirely improper for the President to demand a payment in these circumstances — as the President himself has since admitted. Ex. 17 (“Amazingly, I find that you’re not allowed to do that — you’re not allowed to accept money. . . . There’s no legal path to doing that.”). . . .

The Prohibitions were issued against the backdrop of a political reelection campaign in which the President has increasingly relied on anti-Chinese rhetoric. See, e.g., Ex. 7. And there is no question that the first mention of the Trump Administration possibly banning TikTok came on the heels of the episode in which TikTok users claimed to have used the app to make it appear to the President’s campaign that attendance for the President’s Tulsa rally in June would be vastly larger than it actually was, Ex. 9, an embarrassment that led to the campaign running ads against TikTok, Ex. 11. The record will make clear that these [Ed. Note: petty ego-driven] issues — not any purported national security concerns — were the actual rationale for the Prohibitions. See, e.g., Home Box Office, Inc. v. FCC, 567 F.2d 9, 54-55 (D.C. Cir. 1977) (when an agency sets forth a “fictional account of the actual decision-making process” a reviewing court “must perforce find its actions arbitrary”); Tummino v. Torti, 603 F. Supp. 2d 519, 544-46 (E.D.N.Y. 2009) (agency action is arbitrary when articulated basis is “fanciful and wholly unsubstantiated” and other considerations are evident from record).

The claim that national security concerns were the agency’s actual motivation for requiring a total ban of TikTok in the United States is contradicted by the President’s persistent focus on extracting some type of financial bounty in exchange for permitting Plaintiffs to continue their lawful business in the United States. On August 3, 2020 — three days before the August 6 order was issued—the President stated that TikTok “[doesn’t] have any rights” and that he would ban the company unless it were acquired through “an appropriate deal” in which “the Treasury. . . of the United States gets a lot of money.” Exs. 15, 16. This demand for a payment to the Treasury is at odds with notion that banning TikTok is necessary to protect national security. The President also demanded that the parties involved in the TikTok-Oracle-Walmart deal “pay $5 billion into a fund for education” so that “we can educate people as to the real history of our country.” Ex. 27.

Such a demand not only is completely untethered to the national security concerns on which the Prohibitions were purportedly based, but is entirely inappropriate. Indeed, in analogous contexts, courts — as well as the government itself — have recognized the impropriety of the government demanding that a private party make a payment to a third party. For example, the Supreme Court has long recognized that the government “effects an unconstitutional taking when it transfers property, without any justifying public purpose, from one private party to another.” Corp. of Presiding Bishop of Church of Jesus Christ of Latter-Day Saints v. Hodel, 637 F. Supp. 1398, 1406 (D.D.C. 1986), aff’d, 830 F.2d 374 (D.C. Cir. 1987) (citing Hawaii Housing Auth. v. Midkiff, 467 U.S. 229, 241 (1984) and Thompson v. Cons. Gas Corp., 300 U.S. 55, 80 (1937)). . . .

We will soon see that the San Francisco order for a preliminary injunction of last Saturday. . . was correctly decided. For the sake of a complete record only — this is the nonsense Trump filed tonight, prior to tomorrow’s hearing. I will live blog it. Watch this space.

नमस्ते

Guys Who Live In Glass Houses… Truly… Probably Shouldn’t…

~ condor ~ Leave a comment

I’m old enough to remember… John’s endless silences — about all white murderers who kill black or brown or gay people.

In fact, it was only about two months ago that Mr. Hinderaker refused to condemn Kyle Rittenouse.

So… call me nutty, but perhaps John should put down his… rocks.

I would also point to his refusal to condemn / disavow Dylan Roof, and he waffled for quite a time about James Fields, before he agreed that racially-motivated mass attempted murders committed by car should be frowned upon. But mostly just… frowned upon.

So, forgive me if I find John’s scoldings — of what he perceives as permissions, from “liberals“, for lawlessness… just, I don’t know — a tad disingenuous.

Me? I think murderers — regardless of political stripe… do go to jail, for life, without question, in my book. But apparently — not in… John’s.

Out.

Again, Trump Is Going To LOSE, In East Bay IV… No “Price Gouging” Of Asylum Fees; Or Work Visa Fees.

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There were two five-page supplemental briefs filed this morning, in the federal courts in Oakland — on the question of whether the acting Secretary possessed the power he claimed, when this price gouging was undertaken, on behalf of Trump. Here is the nonsense the government offers — essentially this: “even though I didn’t have lawful authority, I later ratified my own acts — and by my own signature… created my authority — from whole cloth.”

And here is the better argument on the point: Chad Wolf’s acts were void from the go, since he was past his expiration date — and not ever confirmed by the Senate, thus:

…The Gaynor Order (ECF 75-2 Ex. 1) purports to invoke authority Gaynor “may have” under “GAO’s view.” But “GAO’s view” is that there has been no valid acting secretary since Nielsen resigned in April 2019. ECF 27-2 Ex. 2. In April 2019, Chris Krebs was next in line; Gaynor was not in office. Now, Wolf asserts he is Acting Secretary.

The Gaynor Order does not specify how or when a vacancy occurred between April 2019 and September 2020 making Gaynor “eligible to act” under Executive Order 13573, 81 Fed. Reg. 90667 (“EO”). That EO applies only to a person “eligible to act” under the Federal Vacancies Reform Act (“FVRA”) when a Secretary “has died, resigned or otherwise become unable to perform the functions and duties” — not when an administration learns of “GAO’s view.” When GAO expressed its view, Gaynor was not “eligible to act” because the office of Secretary had been vacant for more than 210-days. 5 U.S.C. § 3346(a)(1). The Wolf Memo implies Gaynor became eligible pursuant to “5 U.S.C. § 3345(a)(2), when the President submitted [Wolf’s] nomination” on September 10. Wolf Memo at 2.

But 5 U.S.C. § 3345(a)(2) applies if an officer whose appointment must be “by and with the advice and consent of Senate, dies, resigns, or is otherwise unable to perform” – not if a nomination occurs. Defendants may claim they meant 5 U.S.C. § 3346(a)(2) but that only allows a nomination to extend service beyond 210 days for a person “serving… as described under section 3345.”

It does not create a vacancy under 5 U.S.C. 3345(a)(2)….

The Proposal and Final Rule were “action[s] taken by a person who [was] not acting under section 3345, 3346 or 3347,” they have “no force or effect” 9 and “may not be ratified.” 5 U.S.C. § 3348(d)(1), (2). An “action” includes an “agency action.” 5 U.S.C. § 3348(a)(1)….

Defendants are attempting an end-run around the FVRA so Wolf can “continue to serve,” Wolf Memo at 2, despite more than 500 days of service by unlawful officers and Wolf’s pending nomination. To do this, Defendants must try to talk their way around time limits; a nominations bar; eligibility limitations; a no-ratification provision; and manufacture a moment at which Wolf’s nomination, Gaynor’s accession, his change in the order of succession, and the purported “termination” of his authority all happened at once. Any interpretation of the FVRA that permits this is inconsistent with the FVRA’s purpose to “once and for all, put an end to [] ridiculous, specious, fallacious arguments that the Vacancies Act is nothing more than an annoyance to be brushed aside.” 144 Cong. Rec. S11025 (daily ed. Sept. 28, 1998) (statement of [Ed. note: Republican] Sen. Robert Byrd)….

Now you know. The price gouging against putative asylees, and work visa applicants… will never take effect. The law is that clear. Trump will not be able to create a slush fund for his vain wall, here.

नमस्ते

Steve H: Not Very Bright, On Swedish v. Danish v. US COVID-19 Trends.

~ condor ~ 1 Comment

Like Paul M. before him, Steve Hayward, as a now doddering codger, is apparently no longer bright enough to use/recall his long ago liberal education — at some undoubtedly fine, snobby private (cough… Claremont!) undergraduate institution — to discern that both of the “examples” he chooses to highlight (as falsely “proving” the foolish notion that the US should never have engaged in shelter in place orders)… are economies with fully nationalized health care systems, and among the highest (adjusted for differential tax rates to fund social programs from which all benefit) income nations on Earth.

Oh — and they each have about one fifteenth as many people as the USA. And, those northern European dwelling folks are on average, healthier, thinner and younger than the US population (due in no small part to the aforementioned universal preventative health care — and panoply of social welfare programs). All of which we carefully-explained to his co-blogger Paul M., now over two months ago. [This same guy, Steve H. — despite his own… erh, considerable girth, took a mid-August opportunity to blame… (what he called) fat black and brown people, for the runaway COVID-19 mortality rates… in the USA. Charming.]

So… in sum, Steve would claim to prove that fish survive safely, in the main… (wait for it!) by not falling off… their bicycles. He would then point to a rusting, unused underwater rack of bicycles — and claim he had solved the whole fish safety question.

All… without having to resort to… those dreaded helmet laws.

Gosh — he sure is a smart one, that Hayward. Or… not so much.

Out.

Count All “Whole Persons” — Not Just Citizens — These Plain English Meanings… Matter. Supremes Will Say So.

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Today, while so much else was going on… Team Trump asked the now short-handed Supremes to “fast track” the question of whether Trump may use the census as a partisan bludgeon, to then apportion Congressional seats — looking only at citizens, as opposed to “whole persons”.
This, of course, would contradict the commands of the 14th Amendment to our Constitution, as well as several express federal statutes on the topic.

This he claimed to do, without anything more than a. . . memo. [It goes without saying that, in this arena, Trump cannot contradict the Constitution, or Congressional statutes — by Executive Orders.] That the Supremes would even consider it… is fairly laughable. In any event, he has asked. Because… chaos is his only remaining brand.

Here is that 160 some page “emergency” filing with the highest court in the land.

But in truth, it is best suited for solely lining… bird cages.

Now you know. Let’s get the vote on, already.

नमस्ते

Cy Vance’s Devastating Brief — In The Second Circuit: “Facts, On Trump Financial Frauds” Edition…

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This Second Circuit brief is a gem.

It sets out why in fact we have criminal procedure laws, at the state and federal levels. To catch… crooks — whether their address is listed at Wall and Broad, Mara-Lago… or 1600 Penn.

Do go read all 53 pages, but here is just a small sampling — of what Trump is trying to hide by tying Mazars LLP up in knots:

…By way of a snapshot, the reports have included, among other things, the following allegations:

✿ The Washington Post reported that Appellant routinely sent lenders multipage “Statements of Financial Condition” purporting to describe his “properties, debts and multibillion-dollar net worth” that in fact “were deeply flawed” in that they “overvalued” assets, “omitted properties that carried big debts” and included “key numbers [that] were wrong.” David A. Fahrenthold & Jonathan O’Connell, How Donald Trump Inflated His Net Worth to Lenders and Investors, WASH. POST, Mar. 28, 2019, https://wapo.st/2DsxZyo.

✿ As just one example, the same report detailed how Appellant’s financial statements, starting in 2011, overstated real estate assets by hundreds of millions of dollars. Id. In particular, Appellant’s 2011, 2012, and 2013 financial statements are reported to have valued a property known as the “Seven Springs” estate in Westchester, New York, at between $261 and $291 million, while local authorities were alleged to have valued the same property at approximately $20 million. Id. Then, in 2018, Appellant’s financial disclosure form classified the value of this property as between $25 million and $50 million. Donald J. Trump, Executive Branch Personnel Public Financial Disclosure Report (OGE Form 278e) (2018).

✿ Similarly, Appellant’s 2011 financial statement claimed that he had 55 home lots to sell at a golf course in Southern California, for at least $3 million each. Fahrenthold & O’Connell, How Donald Trump Inflated His Net Worth to Lenders and Investors. But according to city records, the public report alleged, at the time Appellant had only 31 lots available to sell there. The report concluded that Appellant had claimed credit for 24 lots (and over $72 million in expected revenue) that he did not actually have. The report made similar allegations of misrepresentations, again with supporting documentation, concerning claims about the size of a Virginia vineyard (overstated by 800 acres). Id….

✿ Cohen subsequently made Appellant’s financial statements public and testified to Congress that it was common for the Trump Organization to submit falsified financial records when the company applied for loans (testimony that investigative reporting tended to corroborate). Hearing with Michael Cohen, Former Attorney to President Donald Trump: Hearing Before the H. Comm. on Oversight and Reform, 116th Cong. 1 (Feb. 27, 2019). According to public reports, between 2012 and 2016, a lender called Ladder Capital extended loans worth over $250 million to the Trump Organization, and those loans were secured by properties located in New York County whose value was potentially overstated. Wendy Siegelman, Trump’s Two Largest Creditors — Ladder Capital Finance & Deutsche Bank, MEDIUM, Dec. 2, 2017, https://bit.ly/32zRkrM.

✿ The Washington Post reported that, between 2004 and 2014, Appellant faced billions of dollars in debt liabilities and yet somehow had enough money to purchase “five houses, eight golf courses and a winery,” including land in Scotland, for $400 million in cash rather than through mortgages. David A. Fahrenthold & Jonathan O’Connell, After Selling Off His Father’s Properties, Trump Embraced Unorthodox Strategies To Expand His Empire, WASH. POST, Oct. 8, 2018, https://wapo.st/35iWaId. This same report suggested Appellant’s liquidity was facilitated by “unconventional” borrowing practices beginning in 2012. Id.

✿ Still other public reports alleged that, in 2012, Trump Organization-related entities paid $48 million in full satisfaction of $130 million of outstanding debt related to the Trump International Hotel and Tower in Chicago. Id. The forgiven portion of that debt would generally be considered income for which the Trump Organization would owe taxes. See generally 26 U.S.C. § 61(a)(11). The reporting, however, indicates that the Trump Organization claimed publicly that it purchased the outstanding portion of the debt, and that it remains listed on Trump Organization books as a debt from one Trump Organization subsidiary to another. Fahrenthold & O’Connell, After Selling Off His Father’s Properties, Trump Embraced Unorthodox Strategies To Expand His Empire. Yet the same subsidiary who purchased the debt is listed as being “practically worthless” on Appellant’s financial statements, despite supposedly holding a multimillion dollar loan. Susanne Craig, Trump Boasts of Rapport With Wall Street, but the Feeling Is Not Quite Mutual, N.Y. TIMES, May 23, 2016, https://nyti.ms/32DETeF; Donald J. Trump, Executive Branch Personnel Public Financial Disclosure Report (OGE Form 278e) (2015). Accordingly, it is possible that the Trump Organization may not have treated the forgiven debt as taxable income….

Now you know — and I’ve omitted the older Stormy Daniels allegations, since those are widely known, and Trump regularly waives them off — as being “a mere FEC technicality”. So let’s just forget them, shall we? Trump claims that Stormy payment is all Cy Vance has. As we see from the bit above, here’s just a portion of the truth, put to his endless minimizing lies. Out.

नमस्ते

More Billy Barr… Lunacy: In Which He Claims First Amendment “Doesn’t Exist” — In Portland, When His Goon Squads… Roll.

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These 27 pages, of turgid nonsense, may be safely circular filed.

To the waste-paper bin — and… forthwith. With all deliberate speed.

I’ll connect you to the wrong-headed government memo, solely to preserve for the record — how little respect the sitting AG has for our Bill of Rights.

Don’t bother to read it — unless you want to see a playbook for… a dictatorship. An already-failed… playbook, at that. The rights of a free press. . . shall prevail here.

Onward.

ICE STILL Cannot Say With Precision How Many Children It Has In “Title 42” Custody. Unconscionable.

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In any other time, anywhere else in our nation, the below would be grounds for jailing — not bothering to keep track of vulnerable children, when that is one’s core responsibility. If this were any city department of child welfare services, anywhere in the interior of the US — and the public learned that the agency head suddenly said “Oops! — silly us — we have four times as many kids in UN-licensed facilities as we said just two weeks ago…” and some of these children had been there “lost, in a hotel system no-mans’ land” for more than 30 days… the involved case-workers and their supervisors… would be headed to… jail. For decades.

This is exactly what Team Trump (ICE, DHS, BPS, and HHS) is guilty of, by their own admission — in the young potential asylee cases. Here is the latest Flores order, which now takes full effect in six days (specifically, this order denies Sarah Fabian yet another stay or delay):

…[The miscreants of Team Trump] apparently now contend that 2,200 unaccompanied minors were referred to ICE by CBP for Title 42 custody. Ortiz Decl. at ¶ 6 [Doc. # 985-1]. They provide no explanation for the discrepancy between the 577 number used just a few weeks ago and the 2,200 number deployed now. This is not the first time Defendants have offered inconsistent data. See Sept. 4 Order at 4 n.2. The fact that the government cannot seem to consistently keep track of how many children it has held in its custody is disturbing, to put it mildly. It is emblematic of the problem with such an opaque, unregulated, ad hoc program….

Defendants’ Stay Application is DENIED. The Court ORDERS that the September 4, 2020 Order shall be effective as of September 28, 2020, in full, subject to the following modifications:

1. DHS shall cease placing minors at hotels immediately as of this new effective date.

2. DHS may implement brief hotel stays (not more than 72 hours) as necessary and in good faith to alleviate bottlenecks in the intake processes at licensed facilities. When any Class Members are transferred to hotels for this purpose, Defendants shall notify Plaintiffs’ counsel and the Independent Monitor, providing the identities and number of minors subject to the hotel placements, and the locations of the hotels….

Were we at war, these would be violations of the Geneva Convention. Perhaps we should take the Orange Blowhard at his word — he regularly says he is in a battle with what he sees as “bad hombres“. That would clear a path to charge him with war crimes.

Let’s — more immediately — just vote these monsters… out. [They say they want to end abortions (as they say “all life is sacred“)… but they want to continue… THIS?!]

Again — Who are… these people?

नमस्ते

John Presumes Fewer Republicans Than Democrats Are… Dishonest.

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As I see it — John’s improbably-posited scenarios… involve felonies, not just mere “dishonesty”.

And unlike Hinderaker, I assume most humans, regardless of party affiliation… will not knowingly commit felonies.

In sum, I believe there is more good in all Americans, than John does.

And that is why Biden will win. He’s prone to believe in the innate goodness of us all — until we choose to prove him wrong.

Trump knows only deceit and darkness in almost everyone he touches. He brings it out in them — because it is all there is… to him.

Sorry John — the loss he and you and McConnell will suffer this Fall has nothing to do with voters’ frauds — but it has everything to do with the darkness you each seek to cultivate, in America.

We, of good will — we will be rid of the lot of you, and soon.

Onward.

The Power To Tax, And SPEND, Resides Within… Art. I — The Congress, Not The President, Under Art. II.

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Y A W N… Another day, another impotent act, from Trump — and Billy Barr. This time, it is Barr proclaiming NYC, Portland and Seattle as “anarchist jurisdictions” — under a stupidly lawless memo, from Trump, dated September 2, 2020.

The goal, of Dotard Donnie of course, is to “de-fund” these cities. That he cannot lawfully do. Unless he declares a “general insurrection” — meaning that all law and order has broken down, in an area… he is largely without lawful means to bully individual cities. I just want to point out, now — as I did on TikTok — this is going exactly… nowhere. He is too stupid, by half — and Billy Barr is too… dishonest (to earnestly advise POTUS) by a factor of ten. Here’s a bit from Trump’s memo — and my comment on it, below that:

…My Administration will not allow Federal tax dollars [Ed. Note: he cannot make this call] to fund cities that allow themselves to deteriorate into lawless zones. To ensure that Federal funds are neither unduly wasted nor spent in a manner that directly violates our Government’s promise to protect life, liberty, and property, it is imperative that the Federal Government review the use of Federal funds by jurisdictions that permit anarchy, violence, and destruction in America’s cities. It is also critical to ensure that Federal grants are used effectively [Ed. Note: again, not his call — this is for the Congress under Article I], to safeguard taxpayer dollars entrusted to the Federal Government for the benefit of the American people….

This is simply NOT… his role. This is for Congress, to spend or not spend under Article I, not the President, under Article II. He tries to use Insurrection Act powers, without ever making a showing to allow the meeting of the requisite pre-conditions, for invoking it.

Since the desegregation standoff with George Wallace, at the school house door, now over a half century ago — this provision has never been used without a state asking the feds to roll in, and help. Significantly, after indisputably more general chaos broke out in the wake of Hurricane Katrina, in New Orleans, then president Bush 43 concluded that he could not roll federal troops constitutionally, without an invitation from the state government. That invitation never came, so he stayed out.

And there is no serious doubt that far more wide spread lawless chaos and death was underway, post Katrina — than in Portland’s CHOP, or either of NYC or Seattle. In sum — it is more of his entirely impotent Kabuki Theater.

Here, we start early voting in about two weeks. In Minnesota and Wisconsin, early voting is already underway. Let’s just be done with these monsters, ASAP. Out.

नमस्ते