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Second Circuit Says “No Automatic Stay” For Trump, On Mazars’ Subpoena…

~ condor ~ 1 Comment

This merits a new post. Trump is almost out of runway here. [See today’s prior posts, for background.]

Unless Trump gets a stay from the United States Supreme Court by Thursday, August 27,2020… the subpoena will be returnable from Mazars to the NY AG’s office, with immediate effect.

As the Second Circuit’s order makes plain, below — the arguments won’t even be heard until September 1, 2020 — in the ordinary course. So Trump’s only hope is the Supremes. The agreed adminsitrative stay in the trial court expires at 5 PM EDT on August 27. Of course, since it is a grand jury subpoena, only the prosecutor and the grand jury will see the documents… unless and until an indictment is unsealed. Here’s the late afternoon order out of the Second Circuit:

…Appellant, President Donald J. Trump, moves for a stay pending appeal and an administrative stay of the district court’s dismissal of his challenge to the Mazars subpoena.

To the extent Appellant seeks an immediate administrative stay, that request is DENIED.

The motion for a stay pending appeal shall be heard before a three-judge panel on Tuesday, September 1, 2020. Appellees’ opposition to the motion must be filed by 5 p.m. on August 27, 2020, and Appellant’s reply, if any, must be filed by 5 p.m. on August 31, 2020….

Hmm. Seems… he is, in fact, a mere mortal, after all… smile. Onward, into a starry weekend outdoors, ahead.

नमस्ते

[U: Meanwhile… See at Bottom.] Team Trump’s Failure To Move To Quash — Created No “Emergency” At All, In The Second Circuit.

~ condor ~ 1 Comment

Ever predictable — even after being directly instructed by at least three separate courts… that the proper way to object to a criminal (felony) grand jury subpoena is to move to quash… Trump persisted in bringing a separate civil suit — in the federal courts, to… claim damages. Erh… Right.

As so many have said — that is not “how the actual law works,” in a criminal matter, when an impartial grand jury of one’s peers has clearly decided that probable cause exists. . . to call this guy (Trump) a felony suspect, here.

So it is, that Trump has moved, on an emergency basis, no less, for a second time (at least — honestly, I’m losing count), to ask a federal appellate court to decide that the ordinary rules of criminal procedure… should somehow not apply to him — in a “garden variety” felony bank and tax fraud case.

It seems that Team Trump cannot understand the phrase “the law of the case” — that is, this question has been asked and decided — all the way to the US Supreme Court — against him. One cannot continually re-litigate, as supposedly new emergencies — matters one has lost upon. Repeatedly.

I’ll attach Trump’s filing, in the Second Circuit from this morning — but in fair play — I quote the brief filed by Cy Vance’s office, from the last time he lost, in the trial courts, in Manhattan, below (so we don’t get hood-winked by Team Trump, as to what the law actually is):

Now you know. He will lose here. Bank on it — out for a sun dappled bike ride, by the cool clear big lake waters now… smiling.

UPDATED @ 3 PM EDT on Friday: The trial court, for its part, has just now DENIED any stay (beyond the seven day stay already agreed to, by Cy Vance’s office). So now it is only the Second Circuit that might temporarily delay the execution of the subpoena, thus: “…The Court will deny the Motion for substantially the same reasons it denied the President’s request for injunctive relief in the [prior] Order. Indeed, in that Order the Court thoroughly addressed and rejected the President’s claim that disclosure of his financial records to the District Attorney would cause him irreparable harm. The President now relies on largely the same cases, but as the Court explained in its [prior] Order, these cases do not pertain to ongoing criminal investigations, let alone investigations by grand juries who are sworn to secrecy….

Unlawful grand jury disclosure is a felony under New York law. N.Y. Penal Law Ann. § 215.70 (McKinney 2019). Thus, unlike in the cases cited by the President, denying the request will not moot an appeal by causing the public disclosure of any information or documents….”

The collar, on 45’s neck, is tightening, on bank fraud felony exposures… day by fateful day.

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Federal Court Order: Preliminary (Which Is Effectively… Permanent) Injunction Against Trump’s Federal Goon Squads In Portland, Tonight — Rep. Lewis’ “Good Trouble”.

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Once again, Trump and Barr — using criminal “Bull Connor” 1960s tactics against peaceful protesters, the press and lawyer / observers… have been ordered to permanently stand down, by the able USDC Judge Michael Simon, in Portland.

These stinging judicial rebukes — of Trump’s lawless police state actions — continue to pile up. This man and his mini-mes are just one long undulating crime-spree snake.

At the head, I must specifically mention one dirty federal trick, here: after oral argument, the Federal Defendants realized that a renown expert’s opinion (Mr. Kerlikowske — a 47 year veteran of riot control situations — and a decorated police officer, commander, captain and chief) about the unreasonably violent approach the DHS special forces agents took. . . was damaging to Team Trump chances. So… the Feds filed a non-rules-compliant subsequent “Declaration of Chris A. Bishop” — purportedly, the “Acting Director/Deputy Director of DHS” (though he has exceeded his temporary-appointment stay authority, and thus all his acts are a nullity unless and until the Senate approves his appointment — which will not happen now, not before November 3, 2020). The Feds then asked the Judge Simon to accept this declaration as an expert rebuttal to the two declarations of Mr. Kerlikowske (a former Portland Police Chief). Yesterday, the press plaintiffs and their lawyers moved to strike Mr. Bishop’s declaration.

The wise Judge simply tonight mooted it — he held that the declaration of Mr. Kerlikowske was far more persuasive (see the page 23 footnote) than the declaration of Mr. Bishop. Game. Set. Match.

In any event, here is the cogent 61 page opinion, just entered in Portland’s federal district courts — and a bit:

…The declarations submitted both before and after the TRO also describe that because of the Federal Defendants’ conduct, journalists and legal observers were forced to stop newsgathering, documenting, and observing for minutes, hours, or days due to injury and trauma. This includes Mr. Haberman-Ducey being unable to observe due to his broken hand, Mr. Rudoff being unable to return for two days due to being shot in the leg, Mr. Conley having to take some time away because he could “barely walk” after his injuries, Ms. Elsesser stating that she would refuse further assignments in Portland unless she was provided with a bullet proof vest because of her injuries, Mr. Hollis leaving early after he was shot, and Ms. Jeong leaving earlier than she had planned. . . .

For example, the video from Mr. Conley from July 24, 2020, from the time count of approximately 6:30 to 7:40, supports the finding that he was targeted. Federal agents fired on him when he was not near protesters, after he had repeatedly identified himself as press, after many federal officers had returned to the courthouse and were safe from the volatile situation of apprehending the woman and the man who had attempted to interfere with the woman’s apprehension, and after the pan of Mr. Conley’s camera showed that the nearest person was another photographer. The next two nearest people were yards away and were on one side a medic behind a shield and on the other side a single protester yelling taunts. A federal officer shone a bright light at Mr. Conley, making his and his neighboring photographer’s press status even more identifiable, and then fired at Mr. Conley….

Now you know — bring on my right to vote — we will end this lawlessness — and permanently, too — come November 3, 2020. Grinning, just the same….

नमस्ते

[U] “Sir, This Is STILL A… Taco Bell — Put. The. Chalupa. Down.” — Trump’s Suit To Challenge NY Subpoena Is Dumped

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UPDATED @ 2 PM EDT: Trump’s newest mid-day motion for a stay (six pages, here) of the below subpoena… asserts there has been “no appellate review” — of these issues. It is comedic, actually. That claim is plainly… false. This matter went all the way to the Supremes — where the highest court in the land has already ruled against these same claims. This… should be bounced. We will know in seven days, after the administrative stay expires. End update.

Cy Vance’s subpoena for Trump’s financial records may now move forward. But Trump filed an immediate appeal. No word yet on whether Will the Second Circuit will grant a request to stay the immediate documentary delivery effect of the delivery of the subpoena? I doubt it.

With Bannon perp walked this morning — this is decidedly good — and expected, news. Here is the able USDC Judge Victor Marerro’s spot-on 102 page(!) opinion out of Manhattan, and a bit:

…In determining whether a subpoena’s demands are relevant to a legitimate purpose, courts should not attempt to predict the probable results of the investigation; “[i]nstead, the inquiry should [center] on whether the material sought by the subpoena was related to a legitimate objective of the Grand Jury investigation.” In re Vanderbilt, 448 N.Y.S.2d 3, 5–6 (App. Div. 1st Dep’t 1982). As noted above, the Grand Jury may legitimately “investigate merely on suspicion that the law is being violated, or even just because it wants assurance that it is not.” R. Enterprises, 498 U.S. at 297; Branzburg, 408 U.S. at 701 (grand jury’s work “may be triggered by tips, rumors, evidence proffered by the prosecutor, or the personal knowledge of the grand jurors”); see also People v. Doe, 445 N.Y.S.2d at 777; In re Bick, 372 N.Y.S.2d 447, 450 (Sup. Ct. N.Y. Cty. 1975) (“In other words, absent abuse of power a grand jury has a broad scope of inquiry.”)….

The Court is not persuaded that the SAC states a claim for relief on these grounds, and it does not interpret high respect for the President to compel even more liberal leave to amend than Rule 15 already affords. Justice does not require granting leave to replead under these circumstances. Justice requires an end to this controversy….

Smiling ear to ear, on this finely sunny August morning.

नमस्ते

Silly John. Just Admit You Are A Clueless Blowhard — On Essentially EVERYTHING, About COVID-19.

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John Hinderaker tried to say… something… something… about his COVID-dissonance, tonight.

He decided to cut and paste some goofy charts made by a far right think tank’s doctor/talking head for (get this!) the supremacy of free enterprise… to suggest (falsely, of course) that the efforts to flatten the curve killed more than a “no approach at all” would have.

Uh-huh. He assumes a whole library of “facts” not anywhere in evidence, or even in… existence. [Common sense tells us that we cannot know — collectively — with any confidence, what a path we did not take would have looked like.]

He offers… Sweden, as his “woulda’ coulda’ shoulda‘” model. That’s preposterous — as I detailed when Paul M. tried it, about 30 days ago.

More concretely, he ignores, among other things, that with a nationalized health care system in Sweden, people there are generally far more healthy (via a better starting base) than the average American. He ignores that the Swedes are about 30 per cent wealthier — and ten years younger, on average than the average American, in no small part because the Swedes receive various benefits (like health) essentially without regard to anyone’s ability to pay for it.

There are only about 10 million Swedes in that country, and thus the pool he looks at is 1/30th the size of the US. It is thinner, younger, smokes less and shares a strong sense of united national identity.

But from this comparison of “fish, to bicycles“… he comically “deduces” that a “no lockdowns” scenario, nationwide, would have saved us many net lives, in the US. The main problem is… in his own chart… no less… he blithely ignores the Texas data — which (as his goofy doctor points out)… was (mostly) a no lockdowns approach.

And now it is a runaway kill-box. If there is any microcosm / comparator, John — for your argument — it is… Texas.

And it proves… almost conclusively… based on all data since July 15, 2020… that more people are dead because of it.

Moron. See your own chart. But use both inductive reasoning, and some bio-science — as well as some math skills, next time. What a chuckle-head.

John Has FINALLY Decided. He Is Voting… Biden. He Said So — To Avoid Voting In The… Demented.

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Tonight, while posting a series of meaningless videos — John did offer this half-baked thought: no one should vote for a… demented president. Clearly, he didn’t think that through — but it comes from the easy, breezy posts of mid-August evenings — as his high-balls take effect, and a video link eliminates the need for… any logical theme / development.

That is… no actual thinking is required to make such a post. I get it. I’ve been there — with NASA video explainers, on my other properties. So John tries to throw a barb at what will be by Friday, the Democratic nominee to be… the 46th President.

Now — my punch line: John probably ought to evaluate… the 45th before he casts his ballot, then.

His guy thinks raking forest floors stops forest fires. He thinks about… nuking the hurricanes. About buying Greenland. About staring at an eclipse. “Water-bombing” the then burning Notre Dame cathedral.

John’s guy thinks oleander-extract (a proven plant-based-cardiac-toxin) is a COVID cure — after his “MyPillow” major donor became a board member of the company hawking that non-FDA filed faux home remedy. And that’s after he touted, without evidence, an old malaria drug (one now FDA-withdrawn, since it caused excess mortality in COVID-19 patients in the VA Hospital in Virgina — that’s right, he was advocating for a drug that was killing veterans). His guy thinks injecting bleach might work. “Let’s test that“, he says.

In sum, his guy accepts zero responsibility for managing a pandemic. His guy insults everyone who disagrees with him — but saves deeply pungent doses of particularly unhinged venom for… women [that’s the unprovoked rage, rising — many a demented mind experiences… this]. But he has no filter, so he just blurts it out.

What else? Oh. Yeah. His guy eats hamburders, while confeveing. His guy didn’t know there are term limits for presidents. His guy can’t walk a 7 per cent graded ramp, with sandpaper stripes on it, safely. His guy has to drink water with two hands, often missing his mouth. His guy needs several tries to pronounce Thailand. His guy thinks there’s an African nation called… Nambia.

His guy tried to “black shaprie his way out” of not knowing that a hurricane was not going to hit Alabama, because he couldn’t recognize Alabama — on a map.

His guy today vainly tried to excoriate New Zealand on its “COVID spike”. That was… nine people.

Nine. Today alone, over 1,100 people died in the United States, from it. But Trump is certain its better to fault others. No demented thinking, there.

His guy thinks Michelle Obama quoting 150,000 dead from COVID-19 proves she’s “doing poorly”, because… wait for it — we are actually nearly at 172,000 dead. He was grinning ear to ear, triumphantly as he pointed out her “error” — and his bigly win. [That Trump…he sure is winning, again.]

He thought there were aircraft carriers… at Valley Forge. He does a thousand cruel things a day — mostly in reaction to Fox television he watches obsessively.

Just like a grandpa yelling at those damn kids to get off his lawn.

There are probably 5,000 or more examples like the above (including thinking he can ban an internet app, as a technical matter. It is technically… impossible, unless he decides to nationalize the internet — which is what 20 to 40 million nodes, and hundreds of millions more, outside US reach?).

Yes there are certainly thousands more examples. But my eyes are getting tired, just proof-reading them — so let’s just say… John is voting Biden. The guy who can still ride a mountain bike, and drive stick on a rag-top ‘Vette. The guy who picked Kamala Harris because he (and she) are both fearless.

Onward. Thanks, John. Thanks for making the choice so… clearly-put.

Goofy Carter Page Federal Libel Suit In Chicago Dumped, Overnight…

~ condor ~ 2 Comments

Sanity is “making a comeback“, as the old commercial says.

Carter Page cannot use the Chicago federal courts to claim he was defamed by the DNC and its law firms. Full stop. So don’t believe the nonsense Durham is pushing. Carter Page is no victim here. Here’s the able USDC Judge Harry D. Leinenweber’s opinion, overnight — and a bit:

…Plaintiff Carter Page is a foreign policy scholar and businessman domiciled in Oklahoma who served as a member of Donald Trump’s foreign policy advisory committee in 2016. (Compl. ¶¶ 2 & 31, Dkt. No. 1.) Page is the sole member of Plaintiff Global Energy Capital LLC, an Oklahoma LLC, and Plaintiff Global Natural Gas Ventures LLC, a New York LLC….

Even if assumed true, this patchwork of unrelated Illinois connections does not establish specific personal jurisdiction over any Defendant in this case….

Frankly, the Court is confused as to how Plaintiffs think it does, especially when many of the allegations wholly relate to non-party Illinois connections. These efforts to blow smoke cannot obscure the obvious — Plaintiffs’ claims consist entirely of out-of-state activity by out-of-state actors….

Now you know… these f-en’ jah-mokes. . . geez. Let’s be done with the lot of them. Hurry, hurry come November.

नमस्ते

Amplifying A Weekend Footnote: Sarah Fabian Is Arguably Now Required To Withdraw From Flores Case In LA…

~ condor ~ 5 Comments

It is rather astonishing that I will now need to mail this post to the DC Bar and the California Bar, as well as to the US District Court in Los Angeles. . . but I do intend to do so.

Under long-standing California child welfare rules, and federal ones, to boot — lawyers who become aware of substantial dangers to the health, safety and welfare of minor children are automatically charged with heightened duties of diligence and disclosure. This is doubly true of all government lawyers — as they are charged with representing the public’s interest in among other things protecting children’s welfare.

So it is that I have come to the conclusion that Sarah Fabian, based on her admissions in open court, on August 7, 2020 — in the Flores matter, is aware that her client, the US government, is intentionally violating multiple laws and federal court orders, in its continued unlawful detention — often in degradingly unsanitary, inhumane or torturous conditions of confinement — of little children. As such, the rules of professional conduct, in Massachusetts (her jurisdiction of first bar admission), DC (where her current office is located), and California — where she’s admitted by leave of the able USDC Judge Dolly Gee, to litigate in the Flores matters, pro hac vice. . . all now would seem to require her withdrawal — from this case.

In any setting where children are in danger, when any attorney represents any party — it is incumbent on that attorney to make a report to the court (after advising her client of this duty of hers, and giving the client a short period to comply with the law), and then withdraw, if the lawyer knows actions of her client are causing substantial, intentional and unremediated injury to even one child’s welfare (Sarah has repeatedly admitted these facts, before the Ninth Circuit, and before the able USDC Judge).

Here the court documents clearly establish that it is hundreds — if not thousands — of children. And because they are covered both by US treaties, and federal statutes (and now as clearly articulated by the express terms of prior litigation, i.e., the Flores consent decree) — it is manifestly no excuse to argue “well they aren’t citizens.” The rights these children possess do not depend on the whim of Donald Trump, Bill Barr or Sarah Fabian. Sarah Fabian must withdraw, and if she will not — Judge Gee ought to order her jailed for contempt.

It is vanishingly unusual to see government lawyers taking multiple appeals from orders for soap, blankets, bedding and toothbrushes for minors in US custody. But it is beyond the pale, and UNETHICAL — for a government lawyer to further assist her client in thwarting clearly-written court orders on both providing these basics, and advising these children and their guardians of their rights, under US law. See:

. . . .[In California, applicable on her pro hac vice admission:] Rule 3-700 (B) Mandatory Withdrawal.

A member representing a client before a tribunal shall withdraw from employment with the permission of the tribunal, if required by its rules, and a member representing a client in other matters shall withdraw from employment, if:

(1) The member knows or should know that the client is bringing an action, conducting a defense, asserting a position in litigation, or taking an appeal, without probable cause and for the purpose of harassing or maliciously injuring any person; or

(2) The member knows or should know that continued employment will result in violation of these rules or of the State Bar Act; or

[And, in Massachusetts:] A lawyer ordinarily must decline or withdraw from representation if the client demands that the lawyer engage in conduct that is illegal or violates the Rules of Professional Conduct or other law. . . .

[Finally, in DC (her current office location):] Rule 1.2(d). . . [8] When the client’s course of action has already begun and is continuing, the lawyer’s responsibility is especially delicate. The lawyer is required to avoid assisting the client, for example, by drafting or delivering documents that the lawyer knows are fraudulent or by suggesting how the wrongdoing might be concealed. A lawyer may not continue assisting a client in conduct that the lawyer originally supposed was legally proper but then discovers is criminal or fraudulent. The lawyer must, therefore, withdraw from the representation of the client in the matter. See Rule 1.16(a). In some cases, withdrawal alone might be insufficient. It may be necessary for the lawyer to give notice of the fact of withdrawal and to disaffirm any opinion, document, affirmation or the like. See Rule 4.1. . . .

Sarah Fabian ought to withdraw of her own accord, now — or the court ought to order her to face contempt (and thus jail), if she refuses to do so. Out.

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