"The central doctrine of Christianity, then, is not that God is a bastard. It is, in the words of the late Dominican theologian Herbert McCabe, that if you don’t love you’re dead, and if you do, they’ll kill you."--Terry Eagleton

"It is impossible for me to say in my book one word about all that music has meant in my life. How then can I hope to be understood?--Ludwig Wittgenstein

“The opposite of poverty is not wealth; the opposite of poverty is justice."--Bryan Stevenson

Sunday, May 26, 2019

Which is worse?

It's the International Date Line, isn't it? That's what's messing with his memory, right?

That or he not only doesn't believe his own intelligence services, he doesn't even believe his own tweets.

Come Back, Ron Ziegler, All is Forgiven!

This kind of deserves a bit more attention, as they say.  Presenting Sarah Huckabee Sanders as the Queen of Hearts:


I want to ask you about the decision to give the attorney general this unilateral authority to declassify intelligence. The order says the attorney general should consult with relevant agency heads but not that he has to. Why did the president not force the attorney general to consult with the, with the DNI and the head of the CIA? Here he's giving him unilateral authority not to do it. Only saying he should do it but he doesn't have to. Why?


The president has total confidence in the attorney general and his ability --


But not the intelligence community?


-- to make those decisions. We expect -- certainly. That's why we expect that the attorney general will consult with them on matters that he needs that guidance and advice from them. Certainly they work in lock step on a number of things. I don't see this to be any different. The bottom line here is there was a lot of corruption at the FBI and the DOJ. We see constantly more and more things that have come out of that. And the president wants transparency and he's given the attorney general the ability to put that transparency in place, make those decisions. And we're not like at all concerned that the attorney general is not going to do everything that is necessary to make sure we're protecting important intelligence that is vital to our national security.

And why does the President get to do this?  Because his delicate fee-fees have been hurted, and the big boys on the playground were very mean to him!  And probably the Knave of Hearts stole some tarts, if truth be known.

I'm trying to understand what outcome the president expects. He’s, he tweeted the following: "My campaign for president was conclusively spied on. Nothing like this has ever happened in American politics. A really bad situation. Treason means long jail sentences and this was treason." Why did the president ask the attorney general to do an investigation if he's already come to a conclusion, already decided what the penalty should be? And I think has already determined what the jail sentences should be? Isn't this the president already playing judge and jury and putting his thumb on the scale here for whatever investigation he claims he wants Mr. Barr to do?
That's pretty rich coming from the media who relentlessly covered and accused the president for over two years of being part of this massive election interference, something that never took place. The idea that anybody now says that the president doesn't have the right and not only that Americans deserve the truth to push back and find out where all of this started is absurd. Literally for day after day after day the media and Democrats in Congress called the president a traitor to his own country and said that he cheated to become president. I mean the idea of that is absolutely outrageous that he had to endure that for two years. And now he wants to know where and why it started. And all of a sudden that's a big deal? That is insane.
Ron Ziegler never got much beyond declaring a prior statement "no longer operative,"  Sarah Sanders is flat out saying some people are guilty and we're gonna find 'em!  Guilty until proven innocent, in other words.  This prompts even Chuck Todd to at least behave like a real, live, grown-up journalist!


Sarah, I didn't ask about him --


I think the president is doing exactly what --


No, no, no, no, Sarah I did not ask --


-- he should be. And I think America is glad that --


Sarah --


-- he's asking for that transparency.


I didn't ask whether he should ask those questions. He's not asking questions anymore. He's already made a judgment. That is much different. He’s already -- will he accept a result of the attorney general saying, you know what, "Everything was done legally and on the up and up, Mr. President." Will he accept that result from Bill Barr?


We already know that there was an outrageous amount of corruption that took place at the FBI. They leaked information. They lied. They were specifically working trying to take down the president, trying to hurt the president. We'll leave the, the final call up to the attorney general and he'll get to the bottom of it. But we think Americans deserve the truth.
Because we already know the truth, says Sarah. "Verdict first, trial second!"  All she left out is:  "Off with his head!"


So he doesn't --


The president's asked for that. And we should expect nothing less.

Nothing less than arrest, conviction, imprisonment, maybe death penalty for treason, and maybe, at some point, a trial.  If absolutely necessary, but really, we already know they did it, right?  Now pay attention, because she finds several new ways to say "NO" here, without every saying it at all:


So the president is not going to accept exoneration if that's what Bill Barr finds?


Look, I'm not going to get ahead of what the final conclusion is. But we already know that there was a high level of corruption that was taking place. We've seen that in the --

(so how can there be any exoneration, right?  We just need an investigation to nail down precisely who the guilty are.)


There, there --


-- IG investigation --


-- which is --


-- that has already happened.


-- not out yet.


There's a lot more there that we still need to know. And we're going to let the attorney general do his job.


Well it sounds like you’re not -- that's my point. It doesn't sound like you want him to do his job. It sounds like you, the president has already determined the outcome.


Chuck, that's the reason that he's granted the attorney general the authority to declassify that information, to look at all the documents necessary is so that we can get to the very bottom of what happened. Once again, we already know about some wrongdoing. The president's not wrong in that. But he wants to know everything that happened and how far and how wide it went.

(who the guilty are, in other words; the question of innocence is not in play here)


Does he expect --

We know that there was corruption. Let's see --


-- does he expect criminal charges? Does he expect -- he's accused James Comey of treason. Does he expect Jim Comey to be arrested?


Again, we're going to let the attorney general make that determination as he gets to the conclusion of this investigation.

(Determination of who gets punished for defying the greatness of Dear Leader!)


So the president, he's not going to accept --


But we certainly expect the people that were responsible --
(because, goddammit, they WERE!)

He’s, he’s --


-- and that were part of this unprecedented obstruction and corruption at the FBI, those people should certainly be held responsible and be held accountable and the president expects that to take place.

(It's clear the crimes were committed, now we just need to find people to blame for them.  They know who they are!)


So he expects an outcome that he wants, not an outcome that the facts lead to.


Chuck, I think you're trying to muddy the waters too much here. We already know, once again --

(Finally, the point sinks in through the density of bullshit.  And the argument is, we know who is guilty, we just need to find evidence to confirm it.  What do we call that kiddies?  "A WITCH HUNT!"  Irony is in the corner, throwing up her breakfast.  This is too much, even for her.)


I think we --


-- that there was wrongdoing.


I think what’s rich is who’s muddying waters.

Chuck Todd strikes back!  Wow!  Whodathunkit?


Now we want to know how much there was. I don't think it's -- well, I don’t think it’s crazy to want to know how far and how wide the corruption at the FBI was. And that's what the president has asked the attorney general to find.

(We don't want to know if there was any, we want to know how much there was!  We can't put the whole FBI in jail, we have to pin it on somebody!)




And we'll what happens.
("But it better be what we want to happen, and Barr knows it!")

Like I said, this deserves a bit more attention, don't you think?

Don't You Wish Real Life was like this?


"Thou hast committed fornication/but that was in another country...."

Nothing to see here. Move along, people!*

*So, Bremmer's tweet became controversial, and seemingly has now been removed.  However, exact quote or not, the sentiment seems to be confirmed:

Saturday, May 25, 2019

I always feel like I'm taking crazy pills

Okay, two things:

1) For the love of language and communication, can we PLEASE stop using the word "existential" outside of the context of western philosophy? I mean except as a term of art in philosophy, or as a reference to a particular school of western thought.

2) What is "existential," in any meaning of the word, in responding to a subpoena? The only question is whether or not you spend the money on a lawyer when Congress goes to court to enforce it. And even eventually facing contempt of court is not an "existential" problem, it's only a question about how much MORE trouble you want to be in, and more importantly:  why?*

Okay, 3)  I used Rick Wilson's tweet because it's the perfect response to this "glamor shot" NYT attached to their article.

*it's not like she's a character in a Beckett play, for pity's sake!

History is so cool....

And in case you do t trust some random tweet (why should you?):

Friday, May 24, 2019

Asking For A Friend

If Pravda or RT has published the documents Wikileaks published and Assange is now charged with violating the Espionage Act over, would there still be a 1st Amendment issue?

Hard cases make bad law.

"Me? Or your lying' eyes?"

(How many outlets on-line had archives of the press conference that day for easy comparison?  Who does he think he's foolin' here.  "The dog ate my homework" is a more credible response.)

Besides, where do I go to check this ISN'T what Giuliani meant to say?


Funny, I thought

...the Mueller Report "totally exonerated" him.  How is that an "attempted coup"?

Really needs to get his stories straight.

The Playground Way

"She started it!"

Not the "Chicago Way":

Talking with the press before his departure to Japan, the president was asked whether he thought it was appropriate to share a deceptively edited video intended to demonstrate that Pelosi was feeble minded.

Trump responded to the question with rage.

“This just shows how fake you and the news are!” Trump seethed. “Did you hear what she said about me long before I went after her? She made horrible statements, she knows they’re not true, she said terrible things! So I just responded in kind!”

He then went on to accuse Pelosi and the Democrats of “hurting our country very, very badly” because they are conducting investigations into his administration.
If this wasn't the way he'd been functioning since he came down the escalator at Trump Tower, I'd say he was decompensating.

Can I start panicking now?

Fox & Friends dumping in Diamond and Silk? Am I going to look outside and see water running uphill and pigs in flight?

Well, you know....

Freedom of speech, free press, FREEEDUUMMMMBBBB!

Certainly not another reason to break up FaceSpace, right?

Nip It In The Bud

(A) It comes from the POTUS, not a campaign.

(B) It is, at the moment at least, a "pinned tweet."

(C) It's a lie, no less "doctored" (there is actually an argument over whether this one was "doctored" or merely "edited." Seriously?), than anything done by Project Veritas.

(D)  Trump is plainly and bluntly lying. We allow a certain leeway for politicians pushing the preferred narrative. We even call it "spin" because euphemism is so much easier to deal with than plain language. But this isn't "spin." It's a lie. Period. A lie from the POTUS on his official Twitter account.

Maybe not a reason to panic, but certainly a reason to decry the practice.

Thursday, May 23, 2019

Hail to the Chief!

Because what else do you do with a doctored video that even FoxNews says is fake?  Loud Obbs puts it on his show so the POTUS can tweet it!

Of course.....

UPDATE:  It's actually "better" than that; they created a brand-new one!  (Gotta stay ahead of the curve!)

(Well, it is doctored, it's just a new one! Can't tell the players without a scorecard! So, a bit of the real press conference, for comparison:)

"Kill 'em all! Let God sort 'em out!"

Because sure, why not?  They probably didn't vote for Trump anyway.....

9 out of 10 Sycophants Bobblehead in Agreement

Projecting Like A Cineplex

That is one monster log in his eye.

Any one else doing this in public would be immediately removed from any position of power or access to anything sharper than a rubber ball, and recommended for therapy and intervention. What kind of adult demands this kind of sycophancy from his staff in front of cameras?  Because anyone who has to declare this:

Clearly isn't; especially when he talks like this:

Recognizably English words, but not a recognizable sentence in English.

Rick Wilson is right; but even that analysis is so far behind the breaking news and Pelosi's strategy it's like a history lesson.  Historians should remember that, if not for Nancy Pelosi, this country would be in a world of hurt.

What, you think Republicans are doing anything about this?  They're lining up behind Kudlow, Conway, and Sanders, and calling Justin Amash a traitor.

None Dare Call it Socialism


"Me! Me! Me! It should be about me!"

By way of context:
But don't tell her that.

Nancy Pelosi us an elected official. Ms Conway us not.

“I’m not going to talk about her,” Pelosi said. “I responded as the speaker of the House to the President of the United States. Other conversations people want to have among themselves is up to them.”

And Trumpian narcissism is contagious.

Watching the Do-nut

This, by the way, is how you do it.

"I offer these tweets..."

As proof of my calmness and rectitude.

But I'm still going to take my ball and go home!

The Thing About Twitter... that it's so easy to use.

Wednesday, May 22, 2019

You Pay What You Get For

Since taking office, Trump has forced taxpayers to spend $81 million on his trips to his Mar-a-Lago resort in Florida, according to HuffPost. The revelation about Trump’s expensive golfing habits are noteworthy, given how the current commander-in-chief frequently lambasted his predecessor, former President Barack Obama, over his own golfing hobby.

Trump has also stuck taxpayers with a $17 million tab for his trips to the Trump National Golf Club in Bedminster, New Jersey; at least $3 million for his two days in Scotland last summer, $1.3 million of which was for rental cars for his entourage; and $1 million so he could visit his Trump club in Los Angeles.

Thus far, the amount of taxpayer money Trump has spent on his golf totals equals 255 times the presidential salary that he promised not to take, as well as three times the cost of special counsel Robert Mueller’s investigation. And the president has given no indication he intends to slow down.
Money which supports businesses Trump owns.  Hmmmmm...... 

The Numbers Game, Or: Political Twitter is not the U.S. House of Representatives

All arguments for impeachment assume the House would draft and approve articles of impeachment handily, and then put the Senate on the hot seat to remove Trump from office.

Not so fast, Clever Hans.

“At the end of the day, by our count, there have been 20 members who have expressed a desire to proceed to an impeachment inquiry. An additional seven members have said, ‘throw him out, he should be impeached, we need to get rid of him.’ That’s a total of 27 members,” [Rep. Hakeem] Jeffries [D-N.Y.] told The Daily Beast. “Nobody counts better than Speaker Pelosi. There are 239 members of the House Democratic Caucus. Nobody counts better than Speaker Pelosi.”

But privately, some lawmakers have begun to wonder how much patience there is within the caucus for Pelosi’s methodical approach. One House Democrat scoffed at Jeffries’ insistence that there were only 27 members who wanted impeachment considered. “Far more,” the member said. “It seems like people are getting there, one at a time.”
So, how many more?  28?  29?  30?  "It seems like" is not the same thing as a solid head count, and 27 is a long way from 239.  "One at a time" means you'd need another six months (at one day at a time), to get the votes to impeach in the Democratic caucus.  You surely want a unanimous vote, knowing removal from office has no chance in the Senate (whether McConnell will even allow it to come to trial is an open question, to be honest).

Pelosi and her team have prided themselves on not getting swept up in the fetishes of the national press corps, noting that they won back control of the House in 2018 on a platform that emphasized protections for people with preexisting conditions while cable news obsessed over Russia. But, increasingly, it’s not just the media that’s been buzzing about impeachment but Pelosi’s own members, including several swing-district freshmen who have, to this point, largely resisted calls to start proceedings.

Considering what Pelosi did to Trump today (did he learn nothing from the government shut down?  Threatening to do nothing on legislation, which is simply saying out loud what McConnell is doing in the Senate (where he has Merrick Garlanded all legislation coming out of the House).  If McConnell is right, and there's no education in the second kick of a mule, Trump is uneducable.), it is probably the best course to follow her lead.  If the House holds impeachment hearings and sends articles to the Senate by year's end, what do the Democrats run on in 2020? Especially if the Senate quickly acquits Trump, who then claims once again he was the victim of a "witch hunt" which couldn't touch him because he's now invisible and bulletproof? (In the final analysis, do you want to remove Trump, or make him inevitable?  The people bleating about "principles" are using the same argument people used to justify not voting for Clinton.  How did that work out?)

And what's it really going to take to move that head count from 27 to unanimous?

Trump's head is not going to be the first ever to roll under the blade of impeachment.  But death by a thousand cuts, which is what Pelosi is administering....that could well be another matter.

"This is not a temper tantrum"

"Nor is it a pipe." -R. Magritte

All the News That Fits In a Tweet

Remember when it was going to be years?
Everyone surprised by this, please raise your hand.
This is when you have supreme confidence in your case (and how is that delay going?)
A totally spontaneous outburst this morning. Unplanned and unscripted.
How many "plus-ones" are appropriate on a state visit? (Somehow I think the British know the answer to this question.)

Meanwhile, back in the courts.....

These delaying tactics are not going to work as well as Trump expects them to. Especially as the courts realize these arguments are not being made in good faith.  It's rare for the courts to punish a bad faith plaintiff, but the case Trump is making, over and over again, is a weak one made for one purpose, and the courts are going to figure that out. Judge Mehta moved quickly. The hearing on the Deutsche Bank subpoena was set for hearing on a very short schedule (and will probably be decided before the month is out). In a related matter, a judge just gave DOJ one day to release a search warrant on Michael Cohen. The courts know Trump's game. So far, they don't want to play.

One thing in particular Trump doesn't understand: he can take cases to the Supreme Court, but the Supreme Court doesn't have to accept them. Given the legal reasoning his lawyers are presenting, there's not much reason why they should. And if they do, a case involving a conflict between Congress and the President won't be left on their docket for long.

U.S v Nixon is instructive here. The case was brought to trial in early 1974.  The Supreme Court heard the case on July 8, and issued its opinion 16 days later.  The case was in the courts less than 7 months. Not much delay there.

The courts won't allow a delay when they don't want one. And while Gorsuch and Kavanaugh were appointed by Trump, they'll be on the bench far longer than Trump will be in office. Even if they think they owe Trump, they are only 2 votes out of 9.  And they'd really have to change the law just for Trump.
I was waiting for this. Why am I not surprised? And please note this court ruled from the bench. Trump's case was poured out like water.

You know, on appeal, one ruling can decide a number of cases.   How are those delays working out?  And if you were expecting the banks to wait until the Supremes speak:
The DC Circuit is going to have to move double-quick to keep these subpoenas from being useful.  They still could, but:  don't hold your breath.

I'm Old Enough To Remember....

...when we were this good at political theater.

(It's hell getting old.)

Is Our President Learning?

A completely unexpected reaction by the POTUS!

More pertinently, when will the press learn?

And frankly, this is the lesson (along with the other lesson:  Trump should not go up against Pelosi):
I give the current media narrative about five more minutes:

Twitter Made Me Do It



Trump was mickle in his wroth! Righteous in his wrath! He woke up this way! Angry!

You're trying to tell me that was staged?! Forsooth and egads!

The Second Tale of the Tweet

Nothing planned at all:
And then, totally spontaneously:
Of course, no one saw this coming!
Because this President has NOTHING to hide!
As usual, Nancy Pelosi has failed for simply going to the White House like a rational person:
What was she thinking?
Somebody is beyond parody here.

Big, beautiful wall!

This is with authorized funding, not the "emergency declaration."

At this rate it should be finished in, what, 200 years?

Tuesday, May 21, 2019


If this were to happen in a court of law, the court would announce a contempt hearing and give the contemnor (McGahn, in this case) notice to appear and present his defense to the charge.  If the court finds the contempt is criminal contempt, which would allow for arrest and detention, then:

Defendants charged with criminal contempt are afforded all the usual privileges of other criminal defendants, like the right to a trial by jury, to examine, and to call, witnesses, and to testify on one's own behalf. 

No immediate jail time, in other words.  If you recall, Joe Arpaio was charged with criminal contempt of court.  Proceedings pended for several months before he was finally held in criminal contempt and taken to jail.  It did not involve the FBI busting down his door at 3 in the morning and hauling him away to a cell to await the final hearing.

The likeliest course here is a contempt of Congress resolution, which has to be enforced by the courts.  Whether DOJ will take that to court is an open question, so other arrangements will probably have to be made.  Easy enough, but then the court holds a hearing, a ruling is entered, and if McGahn again refuses to appear, it would take another hearing to enforce a criminal contempt proceeding (contempt of Congress is not equivalent to criminal contempt of Court, or Eric Holder would have been sent to jail for his contempt of Congress citation).

McGahn is going to testify, sooner or later.  It just isn't going to happen before the 50 minute TeeVee episode is over.

(I mean, honestly, you can't tell the Trump supporters at a rally from the Trump opponents on Twitter:

Yes.  And there won't be an arrest warrant.  Criminal contempt is not a violation of criminal statutory law.
 Never.  This is not Russia.
Don't hold your breath, you'll pass out first.

"Rule of law" on Twitter pretty much means punching somebody in the face.  Feh.)

More Fun With Lawyers!

Well, yeah: 
Plaintiffs (Donald J. Trump; The Trump Organization, Inc.; Trump Organization LLC; TheTrump Corporation; DJT Holdings LLC; The Donald J. Trump Revocable Trust; and Trump Old Post Office LLC) hereby appeal to the U.S. Court of Appeals for the D.C. Circuit all aspects of this Court’s order and opinion from May 20, 2019, which overruled Plaintiffs’ objections to Rule 65(a)(2)consolidation, treated the parties’ preliminary-injunction filings as cross-motions for summary judgment, entered final judgment against Plaintiffs, and denied Plaintiffs’ request for a stay pending appeal. See Dkt. 36; 35.
This isn't an argument on the legal merits, just a statement of the record as grounds for appeal.  Considering the action was basically a declaratory judgment action on the quashing of subpoenas issued by a House committee, a ruling on the motion for a temporary injunction was inevitably a motion for summary judgment, as the standard for issuing a TI is that the moving party is likely to prevail at trial.  The only issue before the court was whether or not the subpoena was valid, which means it made sense to dispose of the case with one hearing.  Besides, as we shall see, Trump, et al., had every opportunity to present facts and arguments in favor of their position; they simply failed to do so.

The trial court treated the hearing as one on "cross motions for summary judgment" because "the material facts are not in dispute."  To understand that, you have to understand how the facts were presented to the court.  That information is all documentary, and was presented to the court by the parties.  It's detailed in the Memorandum Opinion on pp. 4-11.  The important analysis, for the question of the summary judgment, is in this paragraph:

At the May 14th hearing, the court heard further argument from Plaintiffs on consolidation, and overruled their objection. The court found that no additional briefing would aid in its decision-making, as the parties had comprehensively presented the issues and cited all applicable precedent. Indeed, Plaintiffs could identify no new argument that they would make if given the chance to do so. Id. at 34–36. To allow for Plaintiffs’ asserted need to gather additional evidence, the court left the record open until May 18, 2019.  Plaintiffs already had submitted some additional evidence after the consolidation order, which consisted of news reports of public statements of various Members of Congress.  Plaintiffs added two more letters from the Ranking Member before the record closed. 

There is a footnote to that paragraph which is relevant here:

Plaintiffs did not offer any evidence from Mazars; nor did they submit the memorandum of understanding that they claimed in their Opposition was critical evidence. The Oversight Committee, however, did submit that memorandum of understanding to the court in camera. The court has considered the contents of the agreement in rendering its judgment.

(and as an aside to all those armchair lawyers and computer-bound police officers who think TeeVee reflects judicial reality:  read through the factual recitation in the court's memorandum opinion, and note all the procedural steps needed to get to this judgment.  Note, too, the Court even critiques the Committee for not seeking a resolution to “spell out the intended legislative purpose and scope” of the investigation.  Internet 'experts' find this kind of thing annoying, because they imagine all governmental power is executed through the police, who bang on doors and take people away to jail, like on the TeeVee.  Well, that works for simply criminal offenses, but the fact is, refusing to comply with a subpoena may put you in a world of hurt, but it is not a violation of criminal statutory law.  The steps from issuance of a subpoena to enforcement are not a straight line, with police officers enforcing it like a drug bust.  The system presumes compliance, but also allows for due process of law.  The detailed history of this one subpoena, in the court's memorandum opinion, is a history of that due process.  Without it, we are all Trump supporters mindlessly shouting "Lock her/him/them up!," and throwing out the rule of law in favor of the rule of those in office.)

The Court's legal opinion rests on two basic legal principles:  Congress' broad authority to investigate; and the presumption by the courts that Congress is acting as a legislative body unless there is evidence to overcome that presumption (think of it in terms of the presumption of innocence which a prosecutor must overcome to prove you guilty of a crime.  It's a presumption that keeps the courts from sticking its nose into Congress' business.)  And here's where that "tedious" stuff the internet always complains about comes into play:

Had the Oversight Committee adopted a resolution that spells out the intended legislative
purpose and scope of its investigation, the court would have begun its inquiry there. Indeed, the Supreme Court has considered congressional resolutions as a primary source from which to glean whether information “was sought . . . in aid of the legislative function.”
There are reasons the system works the way it does.  Cops busting down doors leading directly to courtrooms where lawyers prove the guilty guilty, or the accused innocent, inside of 60 minutes, is fantasy, not reality.

The opinion deals directly and particularly with every legal argument made by Trump, et al., and dismisses them, largely based on Supreme Court precedent (that is, by citing Supreme Court cases to apply to plaintiff's arguments).  The next interesting bit is how the court deals with the Plaintiff's request for a stay pending appeal.

Federal Rule of Civil Procedure 62(c) authorizes a district court to issue an injunction
pending appeal. Fed. R. Civ. P. 62(c). To obtain a stay pending appeal, the moving party “must establish [1] that he is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3]that the balance of equities tips in his favor, and [4] that an injunction is in the public interest.” 
The court having handily disposed of all Trump's arguments, clearly there is no likelihood of success on the merits of their claim.  The court is flat-out dismissive of this ground:

Indeed, Plaintiffs have cited no case since Kilbourn from 1880 in which  the Supreme Court or the D.C. Circuit has interfered with a congressional subpoena—because it either intrudes on the law enforcement prerogatives of the Executive or Judicial branches, seeks personal information unrelated to a legislative purpose, or demands records that lack “pertinency.” This case does not merit becoming the first in nearly 140 years.
The court also notes a DC appeals case where it was found public interest favored Congress in discovering private financial records.

In sum:  good luck with that appeal!  Trump's lawyers appear to have been pounding the table, as they had nothing else to pound on.  It doesn't look like that's going to do them much good.

Trump is widely expected to take the case to the Supreme Court.

Whether they will take it, is another matter.

When I practiced law...

...I never had a client who didn't talk like this when the judge ruled against them.

Didn't change the judge's authority one whit.

Monday, May 20, 2019

Three word phrase for "King"

These are probably not some of the "rules" AG Barr is worried about:
But they should be:
How, exactly, are Trump's comments justified by the "unitary executive theory"?  Except that the latter is a three word euphemism for "absolute monarch"?

'round and 'round we go.....

I strongly recommend the reading of this  this letter, especially the final paragraph. For one thing, this states a real legal analysis, and shreds the argument made by McGahn's lawyer and the DOJ (this is clearly going to be a recurring theme). For another, it points out that McGahn has to appear tomorrow or be in contempt, whether he thinks he has a privilege protection or not.

An analogy we all know from popular culture would be a witness asserting their 5th Amendment rights. You can use that to protect yourself from testifying; you can't use it to refuse a subpoena to appear.

McGahn is back in that gap between the rock and the hard place. His argument that he's caught between two branches of government doesn't allow him to choose what he will do tomorrow morning. He is going to testify sooner or later.

And when I told you the court moved fast, I wasn't just whistlin' 'Dixie':

“What I wasn’t expecting necessarily, Lawrence is that it would be handed down so quickly. Let me tell you, after 30 years in courts — including decades in the courts of Washington, D.C. — rarely do things happen quickly, but the fact that judge meta handed down this decision in six days is pretty remarkable,” he noted.

“I do think the sort of dam is breaking at this point. And this is a great day for transparency and for accountability, but a really bad day for the president’s seemingly endless attempts to cover up his own misconduct,” he concluded.

I'm telling you: Trump has no legal arguments, only bluster. None of his lawyers, not even the DOJ, can give him the legal protection he needs. Today is the day the legal walls started visibly closing in.  The next round starts in a courtroom on Wednesday.  I expect the same reception to the same arguments.

Because the most important part of being POTUS pwning the libs.

This was actually reported recently: that Trump's most ardent supporters stand by him just because they think the Cowardly Lion is actually a brave hero who punches people in the face. The right people, like libs.

I'm not really surprised

If the Committee puts the force if the court behind it, I think McGahn will decide which branch if government he has to listen to. Which is not the way government should work, but I expect the courts will tell Trump over and over he has no privilege to assert.


I really have no sympathy for McGahn.

Surprising Absolutely No One

Please to note this is a final order, as I expected, and did not stay the subpoenas pending appeal.  Unless the Appellate Court issues a TRO PDQ, the documents will be released (and I think odds that they will are slim and none.  Trump's lawyers couldn't get one in the trial court, why should the appellate court jump like frogs?  Unless they've got a legal argument they didn't trot out already, they don't have grounds or an argument for a TRO at any level.)

And this is why I say that:

The trial court didn't even find a reason to let this go to trial.  Trump's lawyers said all they could say in the hearing, and it wasn't enough.  Appeals have to be on the record from the court below, so what do they add now?  They can't say they weren't allowed to present all their evidence and arguments.  They'll have to challenge the reasoning, and I don't think that will get them very far.

Look for more of the same in court on Wednesday, and shortly thereafter.

(Expect the POTUS to denounce the trial judge's ethnicity in 3...2...1....  He has a rally tonight, you know he will.)

(I'm just gonna tack this on, because I'm gonna run this right down into the ground.  Basic appellate procedure 101:  the appeal of a case does not automatically stay the ruling of the trial court.  If you are sued in a civil case, and lose, a judgment is entered against you.  If you appeal, unless you file an appeal bond (in Texas, anyway, and IIRC), judgment can be enforced against you even as you appeal the case. The appeal bond is to make the winner whole in case the appellate court upholds the trial court (so you can't appeal and duck payment and then run out after the appeal, avoiding judgment execution).

This was a case for an injunction.  Trump's lawyers seem to have skipped the TRO and gone to the Temporary Injunction, which required a hearing with all parties.  The court denied the injunction and entered judgment for the Congress, meaning the subpoeanas have the full force of law with no obstacle to their enforcement.  Trump asked the trial court to stay its opinion pending appeal.  The trial court refused because Trump literally stated no grounds for quashing the subpoenas.  Since the court finds no argument in favor of Trump's position, there's no reason to give Trump relief while he appeals.  Unless the appellate court issues a stay (effectively a TRO), there's nothing to keep those documents from being turned over.  Indeed, it would be a violation of the subpoena at this point to point to the appeal as a reason to deny the subpoena.

Appeals don't stop things unless you get the court to stop things.  Unless Trump finds dumber lawyers on the appellate bench, those documents go to Congress sometime soon.  All Congress has to do is say "Nope, we're not waiting anymore" (they agreed to an informal stay while the trial court heard arguments for an injunction).  The speed with which the trial court disposed of this matter tells you how strong a case Trump was able to make.

None at all, basically.  Exactly what the trial court said in its order.)

This Could Almost Be Fun

First:  there is no attorney/client privilege involved in Don McGahn testifying before any Congressional committee about his work as White House Counsel.  If there was, it was waived when McGahn testified to Mueller's investigators for over 30 hours.

There is also no ethical bar to complying with a Congressional subpoena:

In response to a Congressional subcommittee’s subpoena for a lawyer’s files pertaining to the representation of a current or former client and containing confidences or secrets that the client does not wish to disclose, the lawyer has a professional responsibility to seek to quash or limit the subpoena on all available, legitimate grounds to protect confidential documents and client secrets. If, thereafter, the Congressional subcommittee overrules these objections, orders production of the documents and threatens to hold the lawyer in contempt absent compliance with the subpoena, then, in the absence of a judicial order forbidding the production, the lawyer is permitted, but not required, by the D.C. Rules of Professional Conduct to produce the subpoenaed documents. A directive of a Congressional subcommittee accompanied by a threat of fines and imprisonment pursuant to federal criminal law satisfies the standard of “required by law” as that phrase is used in D.C. Rule of Professional Conduct 1.6(d)(2)(A).

That opinion is not on "all fours" with the facts of this case, but it is instructive in the highlighted portion.  There is no ethical bar to disclosing subpoenaed material if the attorney faces penalties under law for failure to comply.  It's the penalties under law that is critical here:

For example, in D.C. Bar Opinion 83, we stated that a lawyer “is not obliged to run the risk of being held in contempt of court because of the client’s desire that confidences and secrets not be disclosed.” Similarly, in D.C. Bar Opinion 14, we stated that “the attorney is . . . free to comply with whatever directive the trial court gives.” In D.C. Bar Opinion 214, we stated “we conclude that the law firm . . . may comply with a final judicial order enforcing an IRS summons without seeking appellate review of that order, but only after giving its client notice of the court’s order and a reasonable opportunity to seek review independently of the firm.”
In short, Trump can tell McGahn not to comply with the subpoena (which, yes, sounds like an impeachable offense to me, but impeachment, like "fetch," is not happening).  McGahn can decide he won't, and then Congress can go to court to get the subpoena enforced which, contrary to popular opinion, really won't take that long.  But the White House can't go to court on this matter; they don't have a dog in this fight.  McGahn probably doesn't want to spend his time this way; it would be quicker and easier to testify and get it over with.

And then there's this:

That letter cites only opinions of the Office of Legal Counsel of the DOJ for the argument that McGahn can't be compelled to testify..  Such opinions have no weight of law, and are not binding on Congress or the courts.  Besides, as I said, McGahn has already testified for 30 hours on the subjects the Committee is interested in.  Whatever privilege or immunity the letter cites has been waived a long time ago.  Notice, of course, they say nothing about that in this letter, even though it is the crucial issue any court will start with in any hearing on a declaratory judgment action or any other action to enforce the subpoena.  They say nothing, because they got nothing.

Trump imagines he will tie this up in court for years.  As the trial courts so far have made clear, they have no intention of allowing that to happen.  Remember the other case to quash subpoenas against Deutsche Bank and Capital One is heard on Wednesday.  With the NYT report on Deutsche Bank and Trump's money, it's impossible to imagine Congress doesn't have a legitimate interest in those records.

McGahn may not testify tomorrow morning, but he will; soon enough.  But the next question is:  will he refuse to show up?  The NYT article thinks he's between a rock and a hard place:  testify, and face the wrath of a President.  Don't testify, and be found in contempt of Congress, which could be criminal.  So the question is:  how much weight does McGahn think Trump really throws?

But the answer is:  he has to testify, whether he wants to or not.  He did it once.  He can't refuse to do it again.


I agree with Harry Reid.  Too damned many candidates in the Democratic system right now, and Beto is not "The One."

He's got a better chance doing the grunt work of running against Cornyn, and maybe this time running on what he'll do for Texas, not on the idea that he "changed" Texas.  He almost did, but when he didn't, he punked out.  Not a good look for the future on the national stage.

Come back to Texas, do a bit of penance, and run like the state depends on you, again.  Better than the future as a Democratic nominee everybody's heard of and everybody has already forgotten about.