Category: Uncategorized

Latest Government Admissions, In Flores Litigation, For Tomorrow’s Hearing…

~ condor ~ Leave a comment

We will be credentialed as “press” on this hearing call in LA, tomorrow — and will likely live blog at least parts of it.

Overnight, in making plain that the Trump team has adopted a very cramped reading of what the court’s prior orders require of it, Sarah Fabian authored the below footnote, at page 5 of the latest status report, which openly admits that the Team Trump goal is to thwart treaty obligations entered into long before Trump jimmied the electoral process, to become president — via unlawful executive orders:

…As Plaintiffs have previously pointed out, the previous administration [Mr. Obama’s] achieved substantial compliance with the FSA by having a ninety to ninety-five percent (90-95%) credible fear approval rate, and promptly released Class Members with their parents found to possess a credible fear of persecution if returned to their home countries. That approach to compliance no longer exists as the credible fear approval rate has now dropped to about ten percent (10%) when the current Administration substantially restricted its asylum policies [under Trump]….

It cannot be said with a straight face that now 90 per cent of the same asylum seekers that Mr. Obama deemed safe for admission to the US, are now effectively reversed — and non-admissible, by Trump’s goons — with no change in the underlying facts (i.e., no terror attacks by asylum seekers). This is simply Trump’s xenophobia, in action. And now, with COVID-19 increasingly running through the detention facilities — it is killing… children. And all of this is before we get to the central argument — which is the government’s continued refusal to comply with the spirit, and in some instances, the letter — of the Flores consent decree, as amended and supplemented over these 35 years.

Onward to Friday’s hearing, smiling… We will be ready….

नमस्ते

It Seems One Or Two DC Court Of Appeals Judges… Want To Ask About “Bias”… Y A W N.

~ condor ~ Leave a comment

At lunchtime (which seems days ago now!), we saw an order out of DC — on the Flynn rehearing argument schedule, allocating 20 minutes each, to all three parties, for August 11.

What is more intriguing — in today’s order (given that we already know the hint was at least some of the full Circuit’s judges were wondering aloud how mandamus from Flynn’s camp was appropriate, without any order to appeal from, at least not a dispositive one, signed by USDC Judge Emmet Sullivan) — is that at least some others are wondering if Judge Sullivan should have recused himself for “the appearance of bias” [that’s what 28 U.S.C. §§ 455 refers to]. Here’s the text, in full, then:

. . . .PER CURIAM ORDER, En Banc, [1855133] ORDERED that the following times are allotted for the en banc oral argument of this case scheduled for August 11, 2020, at 9:30 A.M. via teleconference: Petitioner, Michael T. Flynn – 20 Minutes, U.S. Department of Justice – 20 Minutes, and Hon. Emmet G. Sullivan – 20 Minutes.

It is FURTHER ORDERED that, in addition to the issue set forth in the court’s order filed July 30, 2020, the parties be prepared to address at oral argument the effect, if any, of 28 U.S.C. §§ 455(a) and 455(b)(5)(i) on the District Court judge’s Fed. R. App. P. 35(b) petition for en banc review.

Directing parties to file Form 72 notice of arguing attorney by 08/07/2020.

Before Judges: Srinivasan, Henderson, Rogers, Tatel, Garland, Griffith, Millett, Pillard, Wilkins, and Rao. . . .

It is entirely unclear to me that the mere asking of questions, by a judge amounts to “the appearance of bias.”

And. . . I think I’ll stop there, since I’m aware of all the frothy right’s decidedly manufactured consternation about Jim Comey’s speaking engagements, via a claimed introduction, from Sullivan (but conveniently the same hard right bloggers had zero problems with the speaking engagements of Scalia, himself — and those of others who appear at The Federalist’s confabs). No, this outrage is highly selective — aimed solely at Judge Sullivan’s having had a social acquaintance named. . . Jim Comey.

In sum, it is — to me — all rather. . . yawn-inducing. Not even an appearance of bias, at all, that is. Grin.

नमस्ते

Unusual Times; Unusual… Tactics: No Debates — Without Trump’s Five Years Of Full 1040s…

~ condor ~ Leave a comment

Paul M. rather gingerly asks whether there should be debates — but frames the issue as who most benefits — and who would bear the most risk… in any such debate. He mentions “many decades” of debates being the norm. [For a nearly-equal number of decades, tax return disclosures… have also been the norm. More on that, and these unusual times, in a minute.]

But first — let’s be clear: I think Joe Biden would trounce Trump.

Even so, Biden should not offer to do so (with even the minimal risk that Trump’s inveterate lying sways… some weak-minded rubes Trump’s way), given that the universal norm — one that Trump has affirmatively lied about — and one he has violated, for over four years, now — is his… failure to disclose his tax returns.

Trump flat-out promised he would release them after the 2016 election. He obviously hasn’t — and has litigated ferociously, to prevent anyone from getting access to them, even for law enforcement purposes. [This is not how an innocent man, even a private man, behaves. He promised the electorate we would see them before the next election. We won’t — so… NO DEBATES.]

As the clear front runner, Biden has the luxury of… not needing any debate wins. Why bother?

Finally, Paul speciously argues that a “no debate” outcome robs Trump of an important opportunity to showcase his qualifications for some re-election notion.

Well… methinks the lady doth protest too greatly, there: Trump is on TV nearly every night, without an opponent — plainly demonstrating his manifest inability / refusal to master any of the facts needed… to hold the office. So again — that’s specious.

No debate — the old bon mot: “don’t wrestle a pig” comes to mind — you’ll both get muddy — and the pig… well, he will just kind of… enjoy that.

No debates.

A Pungently Dissembling Reply — By Team Trump — To The Torture Being Inflicted… On Asylum-Seeking Children.

~ condor ~ Leave a comment

Well. Even I (ever a pessimist, as to the depths of depravity, of Team Trump). . . did NOT see this coming.

Team Trump must realize their crime spree is drawing to a close, come November, so the bureaucratic acts of subterfuge are growing more… desperate. In response to my observations of Sunday night, as to very young children being tortured in COVID-19 solitary confinement conditions more harsh than some hardened drug king-pins, terrorists, murderers and pedophiles endure in Colorado’s Florence Super-Max facility… the goon-lawyers (think Sarah Fabian here — yes, THAT dog-walking while children are missing… Sarah Fabian!) say, in essence: “Not my monkey; not my circus….”

In sum, in an overnight filing, Fabian’s Trump team claims — preposterously, since CDC/HHS issued guidelines — but DHS and ICE detained, and still holds in custody, all these children — that ICE/DHS/ORR cannot be responsible for them. It is claimed they are simply “following orders” of the CDC and HHS — as to COVID-19 guidelines. In fact, they go on to argue that nothing can be done about it, since CDC and HHS were not parties to the 35 year old original litigation. Disgusting.

I predict that the able jurist that is USDC CD CA Dolly Gee… is going to hand them their heads, for this. The government was sued. ICE, DHS and ORR all have custody of these children. As such, all of them are accountable — for the conditions of incarceration. It is manifestly no excuse to say. . . “you’ll need to sue another agency” to end the torture. The treaties and the Eighth Amendment apply, per force, to the entity with “custody” of the children. Oh. And… these are children. Geezus Christo, on a set of M-F-in’ crutches….

Finally, and more calmly(!), there are LOTS of alternatives to this state of affairs. . . to the torture. That some of them are expensive, because ICE detained so many children for so long, and so wantonly. . . is an unfortunate fact. But I will guarantee that. . .nowhere in the treaties, or our Eighth Amendment, does it say… “Torture is permitted, if it saves the government some money — in continuing lawless detentions.” This sort of filing should lead to disciplinary proceedings, against the involved government lawyers — it is that speciously devoid of merit:

…Because Plaintiffs took it upon themselves to unilaterally report [Ed. Note: on torture!]… they have inadequately presented Defendants’ legal position to the Court. As noted above, Defendants believe that no further action should be taken….

The CDC, though part of HHS, is not a successor to the INS with respect to the detention addressed in the Agreement or the detention under Title 8 authorities that was the subject of this case. Instead, the custody at issue here is incident to the government’s implementation of public health orders issued by the CDC under its authority in 42 U.S.C. § 265, and is in no way related to Title 8 or to immigration enforcement authorities….

DHS will, where necessary, use repatriation flights to move covered aliens on a space-available basis, as authorized by law. The plan is generally consistent with the language of this order directing that covered aliens spend as little time in congregate settings as practicable under the circumstances. In my view, it is also the only viable alternative for implementing the order; CDC’s other public health tools are not viable mechanisms given CDC resource and personnel constraints, the large numbers of covered aliens involved, and the likelihood that covered aliens do not have homes in the United States….

[These orders make] clear that the individuals subject to these processes are in the legal custody of HHS, and are not held pursuant to any authority vested in DHS. Under the plain terms of the Agreement, it does not apply to the custody at issue here because these minors are not in the “legal custody” of CBP and/or ICE (or any successor to INS). Rather, DHS’s only role in the process is to implement procedures that are only allowed pursuant to the CDC’s authority….

This “just being a good German” argument… coupled to officious finger pointing. . . is appalling. Onward, to Friday’s hearing now. Red hot.

नमस्ते

[Of Attempted White Racial Privilege Grabs]: A Small Refresher — On The Real Lady A’s “Common Law” Rights…

~ condor ~ Leave a comment

Billboard magazine put out a pretty well sourced story a few days ago, and so on a quiet Wednesday morning, as we await the first scheduling hearing in Nashville — I wanted to highlight it. See below, for pull quotes. [Prior backgrounder, here.]

And I would only add, for the record, that since Ms. White was clearly “prior in time”, in making her first commercial use of the name Lady A onstage (circa 1998, it seems), her so-called “common law” trademark allows (at a minimum) that she may use the name, forever, as a regional blues/soul artist. If she can establish that the country group’s move is likely to cause confusion among blues/soul music consumers, nationwide… she at least has a shot of overturning the country group’s 2010 era registered mark in DC.

But aside from the actual law, here — the object lesson here is clear: if you are a white country group that is earnestly, honestly trying to distance yourself from what many Americans see as a slave-holding prior branding… it would be wiser… to be more humble, and less. . . litigious. Doubly so, where the person you sued is a black woman who has struggled for thirty years to build a nationwide brand, out of HER OWN DAMN NAME. Just because you sold some tee-shirts with “Lady-A” on them since 2010… you don’t get to push her around, or demand that she do an infomercial for your would-be “woken-ness“.

If the real Lady A’s current CD sells well enough (I’ve bought mine!), she might apply a little money to filing a formal trademark opposition, at the USPTO, and from there — on to the federal district courthouse, in Washington, DC. In any event, here’s the Billboard piece — and a bit:

…Lady A says she had gotten on the phone several times with the country trio and their legal representatives, who she says offered to help her rebrand and suggested they all record a song together or participate in a documentary about the issue before negotiations fell apart. So far, she says she doesn’t see what the group is giving up in the bargain.

“I’m not going to do this song and dance for you to make you woke, then when the smoke clears I still have nothing,” White says. “Because that is what happens to us and that wasn’t going to happen. Everybody needs to be forgiven, they need to change their name. Everybody makes mistakes, I am not perfect. If they can do that? Sure, I would love… I don’t hold any animosity towards them, I am just going to hold their feet to the fire of their statement.”

When Lady Antebellum dropped the second half of their name June 11 to remove a sullied Civil War association in response to the national racial reckoning in the wake of the police killing of George Floyd, they bumped up against the artist who had long been using that name….

“I don’t have big business behind me. I don’t have big money behind me. I started out like any other artists starts out: I started singing in three-four bands, I was doing karaoke, when I started Lady A and the Baby Blues Funk Band we were just a party band doing our thing.

I was grabbing gigs here and there, working a day job, I was doing what people do, I was hustling and doing what I needed to do to be an artist….”

I love that the real Lady A was going to donate half of what the country group should have paid for the name to BLM related causes. That’s where the country group showed its truer colors — it would not pay market rates, for the name. [In view of that evidence, hopefully the Nashville federal district court will order them to pay hefty annual royalties to Ms. White, in order to have the continued right to use it as the name of the band.]

So, here’s to the REAL Lady A; and the other three… are pure pretenders. Race-Grifters. Know that history will write them down that way, no matter how the federal litigation in Nashville turns out, now. Onward, grinning wryly (with my own baby girl coming home, tonight)….

नमस्ते

And — In John’s Trivial Bullpen…

~ condor ~ 2 Comments

We might simply observe — shockingly! — that in “nearly a century”… American sensibilities have… changed.

John’s friend, and John himself — now represent (thankfully) a rapidly-dying old breed of sexists / racists / capitalists — primarily, they are just… racists… but capitalists, and sexists… as a mere… afterthought.

And so it is that… “over the course of the century” that has now passed into dust… most sensible Americans see these old embittered fools for what they are: race-pandering liars.

The stories about “his friend”… are legion, on this score.

So you may safely ignore his entire post, tonight. His lament, such as it is — is a lament that we no longer travel primarily by horse and buggy.

That we no longer need / want… “slave plantation flavor” in our pancakes or syrup… that we don’t need our ice cream pies to be adorned with insulting faux characters — styled as Inuits.

In sum, that we no longer buy the myth of “white is always… more right”.

Do pass away soon, now John. The rest of us are turning our backs on you and your buddy (who will remain unnamed here, but was required to register as a sex offender, at age 70 — based on an assault of a 24 year old law student in 2012, while he was her professor), in any event.

Fade away. Your time is at an end.

Out.

[U: TRO Extended.] Clearly Now, The Press Arguments… Are The Better Ones — In Portland — For Thursday’s TRO Extension Hearing.

~ condor ~ Leave a comment

Updated 08.06.20 5 PM EDT: The TRO has been extended; a more detailed formal order will follow, but here is the docket summary text, via PACER:

“…Full docket text for document 126:

MINUTES OF TELEPHONE ORAL ARGUMENT: ORDER – For the reasons stated on the record, the Court finds good cause and extends the temporary restraining order (ECF [84]) for an additional 14 days, until August 20, 2020, at 5:00 p.m. The Court also DENIES the Federal Defendants’ motion for reconsideration of temporary restraining order (ECF [101]). SCHEDULING The Court sets a preliminary injunction briefing and hearing schedule as follows: (1) Plaintiffs’ opening brief is due by August 9, 2020; (2) Defendants’ response is due by August 12, 2020; (3) Plaintiffs’ reply is due by 5:00 p.m. on August 14, 2020; and (4) a Preliminary Injunction Hearing (by telephone) remains set for August 18, 2020, at 10:00 a.m. The Court will provide the parties with a call-in number by email. Matthew Borden, Athul K. Acharya, Kelly K. Simon, and Gunner Martz present as counsel for Plaintiffs. Naomi Scheffield present as counsel for Defendant City of Portland. Jordan Von Bokern present as counsel for Defendants U.S. Marshal Service and DHS. Court Reporter: Dennis Apodaca. Judge Michael H. Simon presiding. (mja)….” End, update.

I will not belabor it — but simply attach the very cogently argued 23 page memo of law, soundly grounded in over a half-century of well-settled law, related to the unfettered access rights, of “the press” (broadly defined) at mass protests (well-settled, as a constitutional law matter, under Amendment First / right of access — ever since the violence at the Democratic Convention in Chicago, in 1968). If you want to understand the issues — and make a reasoned decision, read that one. [Here is a recent backgrounder, of mine, on the now looming Thursday hearing.]

The meat of it comes down to the fact that Trump regularly says one thing, and then tweets… the opposite. It was said the troops were withdrawing, then Trump tweeted a subsequent direct threat to the Mayor of Portland, saying the troops were “staying.” It is quoted in the first memo, in detail, and here’s the more general point:

“…[T]here is no reason to believe that federal agents’ wrongful behavior will not recur, especially since the federal defendants “continue[] to defend the legality” of their conduct. Knox v. Serv. Employees Int’l Union, Local 1000, 567 U.S. 298, 307 (2012). If the Court allows the TRO to expire, the federal agents will be “free to return to [their] old ways.” Friends of the Earth, 528 U.S. at 189 (quotation marks omitted). Heavily armed paramilitary troops remain in Portland, ready to resume their unlawful activities at a moment’s notice should the political winds shift. Absent an unequivocal — and enforceable — promise from the President that his paramilitary forces will withdraw from Portland and no longer assault journalists and legal observers, the Court should extend its protection and renew the TRO….”

On the other hand, now — if you think our Bill of Rights — as embedded, for over two centuries, in our constitution is merely… a series of suggestions… ones that may always be summarily disregarded, by law enforcement — if they find it merely “inconvenient” to comply, for example, by requiring them to re-arrange the layers of the gear on their backs (for the now plainly urgent purpose of knowing who… shot or pepper-sprayed you, by an alpha numeric code, not even a real name!)… then you’ll love this 33 page comedy of circular arguments, almost none of which cite to any specific authorizing case, or statute — in short, to any binding… precedent.

Overall, I am beyond disgusted with Trump’s lawless shock troops, so I won’t quote the specifics of the dozens of violations of the TRO by these goons — they are laid out in exquisite detail in that first memo.

And… if you’re in need of some paper — to start your barbeque pit, this evening, that second memo is great… for briquette / dried hickory chip kindling starter.

The TRO will be extended, Condor confidently predicts — and the officers will be required to attach very large unique identifier codes, to their tactical gear/battle fatigues. Rain — out.

नमस्ते

Trump’s Towering Stupidity, Part II: He Cannot Use Unlawful Threats Of “Free Expression App Bannings” As Blackmail Fodder. Sheesh.

~ condor ~ 3 Comments

China or no, this president pretends to powers. . . he plainly will never possess. [Prior backgrounder of mine, on this, here.]

This morning, apparently — he seeks to force a blackmail payment, out of Microsoft — for his role in “facilitating” a Tik Tok deal (though his role was that of a official government. . . blackmailer). There are dozens of public corruption cases that squarely hold this conduct — if completed — is a jailing offense for both Trump, and whoever pays the bribe.

And of course, all of this is simply to deflect attention away from a staggeringly bad US job market, and a pandemic approaching 160,000 dead — and rising ferociously, in many reliably red states.

Still, we must keep an eye on his absurdist theatre, as the law will need to be brought down upon him, swiftly — if he tries to block the emerging Microsoft deal in principle, with what would be clearly ultra vires “powers”.

No, Mr. President, it is not like “real estate” — at all. Contractual bargaining is very different than using federal threats as blackmail, to extract “tribute” payments. [Trump is not the “landlord” — to any form of US free enterprise. It is. . . free.] This man is both colossally corrupt, and colossally. . . stupid. [A truly lethal combination, as he apparently slips into an increasingly persistent state of. . . dementia.]

Here is a bit of CNBC’s morning reporting:

. . . .A transaction of the type the president envisions could also prove more expensive than the one Microsoft described on Sunday. Trump said Monday that part of the amount paid to buy TikTok would have to come to the U.S. Treasury Department because it would be making the deal possible.

“It’s a little bit like the landlord/tenant; without a lease the tenant has nothing, so they pay what’s called ‘key money,’ or they pay something,” Trump said. “But the United States should be reimbursed or should be paid a substantial amount of money, because without the United States they don’t have anything, at least having to do with the 30%. . . .”

This man is out in the open now, with his attempts to use the threat of lawless bureaucratic action — to extract “felonious tribute” from Microsoft. I say let’s charge him with state level blackmail felonies, for the attempt, under state law in Washington [Redmond is home to Microsoft]. It can be done — and perhaps. . . it ought to be done, by the patriotic local prosecutors, there — and shortly so.

Onward — laughing at his. . . increasingly obvious lunacy.

नमस्ते

Hinderaker: He Is No Doctor. But He Is… An Ass. “I’m A… Racists’ Racist.” Thanks For That, John.

~ condor ~ Leave a comment

It was Georg Christoph Litchenberg who said (albeit of books) “[a blog] is like a mirror: if an ass… peers into one, we should not expect that… an apostle will peer back out.” True — in spades, of John Hinderaker — over these last 15 years, to be sure.

Tonight, John joins the chorus of openly gleeful racists — those who offer “truther sh!t” — about their lunatic non-theories on the cause of death of Mr. Floyd.

I guess it is to be expected — as we’ve long established that John is a regular, card-carrying racist. In context then, here is his punchline:

“…Floyd complained of being unable to breathe long before anyone knelt on his neck. (Shortness of breath is a symptom of fentanyl overdose.) He apparently preferred being on the ground to being inside the squad car….

But Floyd’s autopsy found no evidence of physical trauma [Ed. Note: flatly false] in the neck area, and documented no other signs of death by asphyxiation. It may be that what we are actually seeing in the video is one of tens of thousands of deaths due to opioid overdose. Or it may be that Floyd died later, on the way to a hospital.

I am not a doctor and have no opinion on Floyd’s cause of death….”

I guess non-doctor, non-lawyer Hinderaker was also too busy writing about how bad (what he calls) “woke” sports is, to check the actual, final on the record Hennepin County Medical Examiner’s office opinion of mid-June 2020, that Mr. Floyd’s death was a homicide. Thus, from one of dozens of news articles, available in a two second Google search:

“…Both the Hennepin County Medical Examiner’s office and an autopsy commissioned by George Floyd’s family have ruled that the death of Floyd – in an incident that has triggered nationwide unrest – was a homicide and the 46-year-old’s heart stopped beating while police restrained him and compressed his neck….”

So — our central object lesson, re Hinderaker, here? Yawn — a racist… is gonna’… racist. [But Mr. Floyd’s family ought to sue — for libel.]

Out.

Cy Vance Is Moving, Apace — And Looking At Trump Matters Going Back To At Least 2011…

~ condor ~ Leave a comment

John complains this evening, that conservative values have largely lost their hold, in America. Not so, sez me. True law and order conservatism would hold Trump to the same criminal standards… as the “everyman.” And that is… much to John’s chagrin — now happening. So he deflects, with whining. [Geese and. . . gander, John.]

This is bad news for for Trump — and his Trumpers — but good news, for real conservative values. Grand Jury proceedings are held in strict secrecy in felony matters, but the NY Atty. is allowed to mention that the matters under review are broader, and stretch much further back in time, than just 2016 campaign hush money payoffs — to blunt Trump’s renewed claims (already rejected at every level where they were previously heard) to absolute immunity (or, alternatively, that the subpoena just duplicates the Congressional one, as a pretext). Mr. Vance goes on to indicate, by way of affirmative defenses, to help dismiss Trump’s complaint, that the 2011 era matters may include “ordinary” (but still) felony bank fraud, for which none of Trump’s Article II claims would matter (since it all predates his run for office, and involves simply financial criminal exposures — and evidence his accountant already holds — from his own files).

And that’s just what Mr. Vance did this afternoon, in Manhattan — in a nearly 28 page memo of law. He makes the point that Trump cannot just continually make the same rejected, baseless legal claims. At some point very soon, the able trial judge is going to agree with Mr. Vance, and say that Trump is subject to the “every man’s evidence” rule, at right — especially so where it is his accountant that must make the delivery — Trump need not miss even one hole of golf(!), hunting for papers. New York seeks only the tax papers Mazars prepared FOR Trump. Here’s the bit, but it is increasingly likely he will face felony bank fraud or tax fraud charges, in 2021. And some of those carry. . . 20 year stints:

. . . . [7-2, The US Supreme] Court held that flexible procedures designed to avoid significant interference with Article II functions do not modify the substantive legal standards a President must meet to prevail on a challenge to a state grand jury subpoena calling for non-official records. Slip Op. at 21 (“[T]he President is neither absolutely immune from state criminal subpoenas seeking his private papers nor entitled to a heightened standard of need.”). Such challenges must still be analyzed under the existing legal standards that apply to everyone. See, e.g., id. at 16 (citing Huffman v. Pursue, Ltd., 420 U.S. 592, 611 (1975)); id. at 21 (reaffirming the applicability of “established legal and constitutional principles”). And a state criminal subpoena for a President’s private papers need not be any more “tailored” than if it were issued to a private citizen:

[The Clinton] Court concluded, ‘[w]hile such distractions [private, political, and some as a result of official duty] may be vexing to those subjected to them, they do not ordinarily implicate constitutional … concerns.’ The same is true of criminal subpoenas. Just as a ‘properly managed’ civil suit is generally ‘unlikely to occupy any substantial amount of’ a President’s time or attention, two centuries of experience confirm that a properly tailored criminal subpoena will not normally hamper the performance of the President’s constitutional duties. . . .

“[B]urdens on the President’s time and attention stemming from judicial process and litigation, without more, generally do not cross constitutional lines. . . .” [C]iting Slip Op. at 12-14; Clinton, 520 U.S. at 704-05. . . .

Buckle up, buttercup! This crooked pig’s days of freedom, on the hoof — are now headed inexorably toward. . . the slaughterhouse — and his ultimate incarceration. . . is drawing closer, day by fateful day. Onward.

नमस्ते