Monday, October 31, 2022

Legal Explainer

This is what "contempt of court" looks like, when you perform your contempt in front of the judge:

Federal marshals escorted the leaders of True the Vote out of a Houston courtroom on Monday morning and into a holding cell. Catherine Engelbrecht and Gregg Phillips have been held in contempt of court for refusing to release the name of a person of interest in the defamation and computer hacking case against them, who they claim, without proof, is a confidential FBI informant.

They will remain in jail until they release the name of the man.

There is a serious question as to whether or not this man even exists, much less is a credible witness for his cause:

The involvement of a third man was unknown until a Thursday hearing, when Konnech’s attorney’s pressed Phillips for additional information about what Phillips claimed was an hourslong Konnech research session in Dallas that night. On the stand, Phillips revealed that another “analyst” was present in the room when Hasson allegedly offered evidence he’d uncovered about Konnech, showing the company had stored American poll worker data on a server in China. Neither he nor Engelbrecht would release the third man’s name, saying he was in danger from “drug cartels.”

But let me back up a paragraph:

In podcasts and interviews, Phillips described a dramatic night in early 2021 in a Dallas hotel, where a man he later identified as Mike Hasson revealed what True the Vote has said was hard evidence of Konnech’s alleged influence on the 2020 election.

And then jump forward a paragraph:

While True the Vote’s former attorney on the matter, Brock Akers, released Hasson’s name after U.S. District Judge Kenneth Hoyt demanded he do so earlier in the month, True the Vote’s new legal team has chosen a different path. Akers has not appeared in court since providing Hasson’s name. Last week, Engelbrecht and Phillips were represented by Michael Wynne, a different Houston attorney, who told the court Akers was on vacation “on the Mediterranean” and would be withdrawing from the case. Wynne said Akers remained away, on a cruise, on Monday morning.

This is the Looney Tunes version of representing a client.  Akers, basically, didn't want to be charged with cnntempt himself.  Now he's "out of reach."  I don't mean to imply anything nefarious.  I just mean this is a clown show where the clowns don't realize they are clowns, or that this is a show.  I mean, this is not what you want to hear the judge saying to you (the lawyer) from the bench:

Again on Monday, Wynne said that True the Vote never had access to the data in question in the case. “The information was too large — the number of terabytes — for him to physically have taken possession,” he said. “He did not and does not have access.”

“I don’t know that,” Hoyt responded. “And neither do you.”

The "data in question" is data allegedly provided by Konnech's founder and CEO (who faces charges in Los Angeles) to contractors in China related to election information, data that was not supposed to leave the US. Konnech has sued True the Vote over a social media campaign they spearheaded that led to Yu's arrest.

Yeah, I'm confused, too.

And yeah, it wouldn't be a case involving social media if there weren't incoherent cries of retribution (which, frankly, sound the same coming from one side of the aisle or the other. I have heard these comments addressed at Republicans as well as by Republicans):

Their irrelevance did not matter to True the Vote’s followers, who offered screenshots of the text messages on social media as proof of Engelbrecht and Phillips’ poor treatment at the hands of federal officers. “This is what tyranny looks like,” one said, in a post shared by Phillips. Another said that if the judge sent the pair to jail, “I swear before God we are going to raise up such a cry to Heaven that the entire nation will hear it.”

Yeah, I'm not holdin' my breath.  Meanwhile, if you're still wondering whether somebody is making stuff up:

While Wynne told the court he’d placed calls to various offices at the FBI, there was no indication the agency had responded. Three weeks ago, said Dean Pamphilis, an attorney representing Konnech in the case, the agency made clear it had no confidentiality interest in the case. True the Vote has so far presented no evidence that is false.

“We need to know his name,” Pamphilis said. “We haven’t heard any testimony that his confidentiality status has anything to do with this case. It’s a complete red herring they’ve manufactured to keep us from the truth.” 

I'd say chances are pretty damned good they are.  Meanwhile, further into the annals of bad lawyering in court:

From that last one you get the context of the interruption. The defense wants to paint Weisselberg as a greedy turncoat weasel who took the money and ran and then, when the squeeze is on, ratted out his employers. And unlike Donald Trump (hem hem), Weiselberg is a liar, too! I can't say much for that defense, especially because it sounds like all they've got. But I can explain the point of the judge's interruption.

Juries sit as "triers of fact."  They decide what happened, sifting out the stories they are told by multiple witnesses who all, in effect, are blind men describing the elephant.  The jury is supposed to put those descriptions together and come up with: an elephant!  But whether the elephant committed fraud, or not, is a question of law.  Basically a trial is the prosecution saying "If the elephant looks like this, you find the defendant guilty!"  And the defense says "whatever the elephant looks like, it doesn't make the defendant guilty."  But that neither side can say is:  the defendant is guilty/not guilty, because that's a question of law, not fact.

Once the facts are decided by the jury (reasonable minds can disagree as to what the facts are; the jury makes a determination that is final as a matter of law), the judge decides questions of law (questions upon which reasonable minds cannot differ.). So if the judge finds there is insufficient evidence to create a crime, even if the jury finds the evidence they say is a crime, the judge gets to make that final decision, and throw out the jury verdict.  But short of that, if the judge decides the crime requires elements A,B, and C, and the jury says we find A,B, and C to be true and trustworthy, then the judge says:  defendant committed the crime!

But neither lawyers can say that, at any time.  They can say you should find the defendant guilty or not guilty.  But they can't tell the jurors what the law is.  The jury is only supposed to focus on what the facts are.  The judges, up to the highest court possible, will decide how the law applies to those facts. No judge gets to change those facts, once the jury has found them.  What those facts mean may be arguable; what the facts are for that case is supposed to be beyond dispute. (This is the problem of Alito making up the facts he wants to use to find the opinion he wants to write; but that's another matter.)

So an argument that the facts should lead you to decide there was a crime, is one thing.  The argument that the law won't let you find a crime, is another

Yes, it does take a lot for a judge to interrupt an opening statement. But this was a lot.

Trump's lawyers are going to have a lot of trouble with that.  Of course, they could be going for a mistrial; but that's not really a legal strategy, either, since you can't sabotage your own trial and then call it unjust that you lost.

Stay tuned.
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