Friday, September 30, 2022

I’m Just Angry; You’re A Stochastic Terrorist

Interestingly, I don’t have to be an expert in 1st Amendment law to see the problems here. First, the definition of “stochastic.”
Stochastic (from the Greek στόχος for aim or guess) refers to systems whose behaviour is intrinsically non-deterministic. A stochastic process is one whose behavior is non-deterministic, in that a system's subsequent state is determined both by the process's predictable actions and by a random element.

It is a term from mathematics, having to do with probability.  Now watch what it does when the phrase is “stochastic terrorism.”

As described by leading scholars, stochas­tic terrorism involves ‘the use of mass media to provoke random acts of ideolog­i­cally motivated violence that are statistically predictable but individually unpre­dict­able’ (Hamm and Spaaij, 2017). Such speech is plausibly related to violent outcomes, and yet falls outside direct forms of incitement.

So now not only is the cause and effect non-deterministic, but by definition it falls outside the law on incitement.

You see, we tried this already. In Brandenburg v Ohio, Brandenburg was charged with violating Ohio’s “syndicalism” law for advocating "crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform.”  Brandenburg was a KKK leader who spoke at a Klan rally. The Court held the threat must be directed at inciting imminent action, and is likely to produce such action in order to evade 1st Amendment protection. Without that, anyone’s angry tweet could be “stochastic terrorism” because it might disturb the peace or lead someone to getting punched in the nose.

Oh, are we going to distinguish “acts of violence” on a sliding scale? What if there isn’t any violence, just a thwarted plot to commit violence? A conspiracy, an inchoate crime where the plan, the mere discussion, is the crime itself? So inchoate stochastic terrorism where we can’t establish even a statistical connection, much less a causal one, and where no violence occurred?

Even without conspiracy and inchoateness, where’s the causal connection? Somebody posts something, and at some unspecified time in the future someone else commits violence, and we connect one to the other…how?  And yet we insist on the connection because…we don’t like the speaker?

Yeah; what could go wrong? And if we do it for tweets, we can do it for books .

Oh, wait, I thought we were against book bans. Well, for the sake of security I guess we have to give up some freedom, right?

What could go wrong?

This Is Not An Old Tweet

I’ve seen this everywhere, and I thought it was just some old tweet resurrected.

It’s not. He posted it tonight.

Some people seem surprised, shocked, outraged. Like I said, I thought it was old news.

Nothing about Trump has changed.

The 11th Circuit Is Going To Get Very Tired Of Judge Cannon Very Quickly

An expedited appeal would serve the interests of justice," said the filing. "Based on the district court's orders thus far, the government is barred from accessing all of the materials except those with classification markings recovered in August pursuant to a lawful search warrant — and it may continue to be barred from doing so until mid-December or later." 
This order, the DOJ argued, means that "the government is ... unable to examine records that were commingled with materials bearing classification markings, including records that may shed light on, for example, how the materials bearing classification markings were transferred to Plaintiff's residence, how they were stored, and who may have accessed them." These documents, the filing added, may also reveal evidence of crimes unrelated to classified information, like obstruction and removal of government records.

(To the astute among (you know who you are), this is why I’m not a criminal lawyer. This is also why the 11th Circuit is likely to grant the appeal. Again.

Cannon is going to be in their shitlist.)*

*No, she’s not going to be removed from the bench. That would take impeachment by the House and conviction by the Senate. Never gonna happen.

Again, no report is full enough:

Looks like DOJ is tired of Cannon's sandbox. And the panel already granted a motion to stay Cannon’s order?

Interesting, if true.

There's A Place In France Where The Ladies Wear No Pants

But what about France?
“If France can do it, we can do it!” shouted Steve Bannon, Trump’s former White House chief strategist, on his “War Room” podcast earlier this year. Mike Lindell, his guest and a prominent conspiracy theorist who is also the owner of My Pillow, agreed. “Terminate the machines!” Lindell yelled. There are several differences between French and U.S. elections that make hand-counting more effective in that country.
 In France, the election was a single contest. Voters selected a candidate card and stuffed it in an envelope. Those cards were then placed into piles for each candidate and counted. “It’s certainly easier than the U.S., where there are often many more races you are dealing with,” said David Levine, elections integrity fellow at the Alliance for Securing Democracy at the German Marshall Fund.

The voting population of France is 48.7 million.  About 35 million voted in the last election there. In 2020 158.4 million Americans voted; across six time zones.  France has one time zone.  France also has, as that paragraph above states, a fairly simple ballot.

The ballot in Texas I will face this November includes one Federal House district, a state Senate and House District, and a Texas Board of Education district.  In addition to that, there are 14 state offices I can vote for, including Justices on the Texas Supreme Court and the Texas Court of Criminal Appeals.  So, 18 envelopes, if we use the French method.  And I have to show up somewhere to cast those votes.  No mail-in voting, no early voting.

And that's just for Texas.  In a mid-term vote, with no US Senator on the ballot.

I've voted on machines all my life.  It's convenient, and clutter free.  Imagine 18 envelopes per voter (or just one, large enough to hold 18, or more, cards), and the people it would take to keep all that organized.  Imagine the number of cards a voter would have to select from:  upwards of five for one office alone, so easily close to 100 choices to make, in cards, not circles on a piece of paper or boxes on a screen. And that's just the number of cards they need available for me.  Obviously I don't need them all, but what if they run out of my choice for an office?

We rely on volunteers as election judges around here; mostly retired people who can sit still all day ("Hello!").  We'd need multiples of 10 more for each polling place, as well as far more equipment/boxes/space just to handle all that paper, both to get it to the voter, and get it back again.  The spaces I'm familiar with now get very crowded with voters voting at machines, or waiting in line to get into the room with the machines.  Turn all those machines to 10's of 1000's of paper cards coming and going, and you'd need warehouse space for every polling location.

Sure, we could do that.  Why would we think that was more reliable, though?  Or, for that matter, less confusing?  I mean, if you're going to suspect the "algorithm" (quick: somebody get Mike Lindell to define "algorithm" in a way that means something to a computer programmer) is going to skew the vote, who's to say nefarious clerks aren't checking envelopes and switching cards behind closed doors?  Aside from voters being confused as to which card to put where.

Honestly, all this smoke and mirrors about "election integrity" is just the same racist bafflegab that led to the Voting Rights Act (Gone But Not Forgotten!).  The same impetus is still there:  don't let the "wrong people" vote!  They don't deserve it!  This country belongs to the crazy rich white men, and they're gonna keep it!

If we let them.

Blowing Up The Off Ramps

According to WaPo, this is why Kise is no longer signing any pleadings in the Florida case (where he was hired for his "expertise"). Trump didn't like this advice, and so, the reasoning goes, doesn't want Kise doing anything to earn his retainer.

Tout le Twitter is still in a snit because Cannon revised her order for the SM again.  It's a rather pointless snit.  DOJ isn't stopped from doing anything,   In fact, let's stop and examine the problem with "legal Twitter" a minute. On "Legal Twitter" you can get everything from this:
To this: Which is correct? DOJ can't appeal; or DOJ has appealed?*  As for "delays," anybody noticed how long Dominion has been in court against Lindell? When does that go to trial? Nobody cares, because it isn't Trump, who we must SMASH SMASH SMASH!!!!!

Yeah, take a breath.

I saw someone else (another "ex-prosecutor" getting cable news face time) say this new order stops DOJ from its criminal investigation, again.  No.  The 11th Circuit was quite definitive on that point.  And really, all that's going on now (as I said before) is Trump is dragging this dead cat across the nation's living room, back and forth, while he tries to delay....what, exactly?  DOJ has its criminal investigation; what more does it want?  They have the documents.  Trump isn't really acting to recover them, which is supposedly why he started this mess (he fears a rule 41 hearing more than death itself, because it will put this case back before the magistrate who issued the warrant).  He's stopped saying the documents were planted, stopped whining about how he declassified them all (it doesn't matter, he's not getting them back, it's not a defense of the Espionage Act, etc., etc., etc.)  He's not doing anything even vaguely sensible, and he started this fight! He is simply, as Kise advised him, pissing off the DOJ.

Yeah, the government probably would have been happy to get all the docs back, once upon a time. But that train left the station a long, long time ago.  Now there's an Espionage Act investigation; probably an obstruction of justice investigation, too; and anything else DOJ thinks the facts will fit (you never plead one crime when 12 or more will do.  You never know what still stick on the wall in the jury room.).

And Trump thinks he's invisible and bulletproof.  (Narrator:  He isn't.)

I don't care what the fuck the Judge does now.  DOJ got what they needed (the Judge never had authority nor reason to block their criminal investigation) and Trump is burning billable hours (and Special Master time, and probably vendor time, eventually) pursuing...what, exactly?  Making the SM's job harder and longer is not, in any way, in Trump's interest; except it prevents him from being exposed in the coming criminal cases. Well, kinda protects him; but not really.  If he doesn't expose himself in this case, he'll be exposed if the DOJ brings criminal charges. That protection won't last long in the civil case, either. But that's his fault for filing this suit. What does delay buy him?

Not. A. Goddamned. Thing.  Except the enmity of the Justice Department.

Me, I'd never pursue that purchase.  That Trump wants to is just fine with me.  🍿

*And if DOJ loses this appeal, so what?  Things take a bit longer than they should have.  The SM is right; the judge is wrong.  Unless the 11th interferes, the Judge has the final world. Welcome to federal court.  Please keep your hands inside the car at all times.  Keep your seat belts fastened. It's going to be a bumpy ride.

Dies Irae

 I'm not quite sure why (I'm never quite sure why, to be honest.  My thought processes usually perplex me.), but this passage makes me think of Schrodinger's cat:

I will point out that Brueggemann does what I have never heard an ideologue of materialist-atheist-scientism do, admit that the focus of his thinking is a product of human imagination and, so, is subject to all of the conditions and vicissitudes, including being wrong, that our imagination of things outside of us, and all that is unseen within us, is exactly that, our trying to cope with our experience.  Of course science is no less a product of the same human imagination subjected to a different set of filters in order to gain a possible enhancement of accuracy on the basis of a collective narrowing of focus and testing the rather pedestrian results about what it has narrowly focused on.  

Part of the effort of quantum mechanics, at least when Schrodinger and his peers were "inventing" it, was the effort to undermine science as objective truth apart from either human imagination or human consciousness. This was not an assault on science; it was an effort to explain what quantum mechanics revealed about the nature of reality, and that nature was the product of our perceptions.

Perception plays an unappreciated role in epistemology.  The thought-experiment of the cat in the box is an example.  The hypothetical cat is in the conjectured box because now it is hidden from our perception; most importantly, from our sight.  "Seeing is believing," and that's the very point of Schrodinger's metaphor.  We can't see the cat, so we can't know the cat's state:  alive or dead (the only two that matter to the metaphor).  And we don't know until we open the box and observe.  Just as we only know quantum states when we observe them; but that doesn't mean the moment of observation is the moment of revelation and the perception of absolute truth.  It could be altered in the next observation.  If I understand correctly (and I may not), this is the argument in quantum physics for observation changing the observed.  I think of it as a poll which shows a certain result, while another poll, either contemporaneous or only days later, yields a different result.  Is the poll reflecting changing attitudes?  Or, more likely, different respondents?  And does the act of polling change the nature of the responses?  Walt Kelly called polling "the buckshot use of the curved question."  The question affects the answer.  Polls try to eliminate that problem; but do they?  How do we know, except through observation?  And if the poll results change everytime the questions are asked, what establishes the "objective baseline"?

Just so quantum mechanics can't establish a "baseline," because what is observed by quantum mechanics is never observed either absolutely nor in the absence of the observer.

Now, that's resting a lot of weight on a subject I don't truly understand, so my argument is subject to severe critique before I've even made it.  But like Schrodinger's cat, my argument is actually just metaphorical, a way of opening the concept of human understanding being a product of human imagination

...and, so, is subject to all of the conditions and vicissitudes, including being wrong, that our imagination of things outside of us, and all that is unseen within us, is exactly that, our trying to cope with our experience.  

Let's back up a minute and start where the argument in that quote started:

 Q. Could you comment a little bit more  about something you talked about earlier, about God changing God's mind?  Especially in response to how the People requested (?) God to change God's mind. Would you comment more on that?

- Well, what that teaches is that we have impact on our futures, what we decide matters.  God in the Old Testament never subscribed to the idea that God is immutable, unchanging and all that, so God is a character in the transaction and how we act causes God to position God's-self differently. That's how they imagined God. And so, if this is the Lord of the Covenant, this God is going to give blessings to People who obey Torah and not for those who don't. You know, that's the reasoning. 

If you look in Jeremiah 18,  I mentioned this I think another time, but there's a very clear case of it. Verse 18:7 "I will pluck up and tear down and destroy, but if that nation turns from its evil I will change my mind."  But then, negatively, I will plant and build but if they do evil, then I will change my mind.  So this is a God who is engaged in the Covenental conflicts.  And, you know, in some ways that's kind of how we conduct some of our most important relationships. And so on. 

Want to come back on that?

- I think what I [honestly meant] it scares me that my actions could change God's actions. 

-  Yeah, but you see the alternative to that is to say "My actions are irrelevant."  It doesn't matter what I do, what the hell. So this tradition takes human conduct very seriously.   

If you’re reading this, you, too, take human conduct very seriously. You care about the news, about politics, about what other people are doing and the consequences of those actions. Or you just care about what people think. Putting those thoughts in print is action, too. But, do you consider that your actions could change God’s actions?  Probably, if at all, only in the sense of the vengeful and angry "God of the Old Testament."  Which is a terrible charicature of the Hebrew Scriptures, because the "wrath of God" supposedly described there is actually the anguish of God because the Hebrews won't follow the wisdom God set out for them, starting with Abraham and continuing through Moses and restated, again, by the Prophets.  The dies irae (not the sequence sung in a Latin mass, but the "day of wrath") is not poured out by God upon Israel for their sins; it is the consequences of Israel's faithlessness and failure to hold up their end of the covenant.  Even then, throughout the prophets, there are scenes of God calling Israel to trial, making God's case for God's faithfulness to the covenant, and the breach of same by Israel.  And still God's purpose is to call Israel back to the covenant, not to punish them and beat them until morale improves.  That's the all too human way, and any parent of a child will tell you it doesn't work.  In fact, in the midst of the fall of Jerusalem and the Exile to Babylon God promises a new covenant with Israel.  God promises to start over, and offer Israel hope.  God always leaves Israel to its choices; but those choices change the way God responds and keeps, at least on God's end, the covenant.

And human conduct matters right down to the least action shown to the least person:

Matthew 25:31-46

25:31 "When the Son of Man comes in his glory, and all the angels with him, then he will sit on the throne of his glory.

25:32 All the nations will be gathered before him, and he will separate people one from another as a shepherd separates the sheep from the goats,

25:33 and he will put the sheep at his right hand and the goats at the left.

25:34 Then the king will say to those at his right hand, 'Come, you that are blessed by my Father, inherit the kingdom prepared for you from the foundation of the world;

25:35 for I was hungry and you gave me food, I was thirsty and you gave me something to drink, I was a stranger and you welcomed me,

25:36 I was naked and you gave me clothing, I was sick and you took care of me, I was in prison and you visited me.'

25:37 Then the righteous will answer him, 'Lord, when was it that we saw you hungry and gave you food, or thirsty and gave you something to drink?

25:38 And when was it that we saw you a stranger and welcomed you, or naked and gave you clothing?

25:39 And when was it that we saw you sick or in prison and visited you?'

25:40 And the king will answer them, 'Truly I tell you, just as you did it to one of the least of these who are members of my family, you did it to me.'

25:41 Then he will say to those at his left hand, 'You that are accursed, depart from me into the eternal fire prepared for the devil and his angels;

25:42 for I was hungry and you gave me no food, I was thirsty and you gave me nothing to drink,

25:43 I was a stranger and you did not welcome me, naked and you did not give me clothing, sick and in prison and you did not visit me.'

25:44 Then they also will answer, 'Lord, when was it that we saw you hungry or thirsty or a stranger or naked or sick or in prison, and did not take care of you?'

25:45 Then he will answer them, 'Truly I tell you, just as you did not do it to one of the least of these, you did not do it to me.'

25:46 And these will go away into eternal punishment, but the righteous into eternal life."

It is worth nothing that this lesson about the least among us, and how we should care for them (offering them a coat; give them some food; visit them in jail.  How small are these things?) is not at all at odds with the Hebrew scriptures.  What is described here is simply hospitality, of the kind Abraham showed at Mambre when three strangers came by, and he offered them a feast, in return for which, God promises Abraham a child, and Sarah laughed.  The "sheep" here offer no more than Abraham did; far less, in fact.  And yet they showed care for God, just as Abraham did.  I suppose we could narrowly focus this within the confines of "common sense" and justify limiting our charity to the "deserving poor," or not giving food (or money for food) to homeless people on the streets because they might spend it on liquor or trade the food for drugs or something (you never know, do you, with those people?), and don't prisoners deserve to be in jail, aren't they there because they need to be punished, and besides people without clothing can go to a charity or GET A JOB! and, you know,  God helps those who help themselves, isn't that in the Bible somewhere?  (No, it isn't.)

And pretty soon it's so much easier to be a goat than a sheep.  I sometimes wonder if the goat as a symbol for Satan didn't start right there....

But don't we want to "gain a possible enhancement of accuracy on the basis of a collective narrowing of focus and testing the rather pedestrian results about what it has narrowly focused on"?  Sure we do!  What could be wrong with that?

The perfectly decent person who follows a certain chain of reasoning, ever so slightly and subtly incorrect, becomes a perfect monster at the end of the chain.

--Wallace Shawn 

Wait? When Is It "Cancel Culture"?

When Yale students do it? (Whose actions are attributed to the school administration because, sure, why not? Or is it just that collective punishment of students is allowed when the reasons for the action don't sit well with a federal judge?) Or when a sitting Supreme Court Justice does it?
“It goes without saying that everyone is free to express disagreement with our decisions and to criticize our reasoning as they see fit,” Alito told The Wall Street Journal on Tuesday. “But saying or implying that the court is becoming an illegitimate institution or questioning our integrity crosses an important line.”

Seems to me Justice Alito is plainly stating that "disagreement with our decisions" is fine, but questioning the court's legitimacy and/or integrity "crosses an important line."  So disagreement reaches a limit beyon which you shall not pass?  Is that not "cancel culture," Judge Ho?  Pray, explain the difference, please.

Because I can't see it.  You're telling Yale Law students to shut up if they want to have careers or a reason to pay the costs of a Yale Law degree.  Alito is telling critics, any critics (he doesn't specify anyone, like another sitting Justice), to watch their ass, because they could go too far.  Which threat is actually the more ominous?  And isn't the power of the threat what "cancel culture" is all about?

And if it isn't, just what the hell is "cancel culture" about?  Inquiring minds want to know!

Brave, Brave Sir Paxton

So this is why Ken Paxton ran from the process server on his front lawn. Not because he feared for his life or because he feared he'd do grievous harm to the man with the envelope in his hands, but because he feared being called to testify in open court this close to the election on the neutron bomb of political topics today:  abortion.

The lawsuit was brought by a group of nonprofits, called abortion funds, that help Texans pay for abortions in states where the procedure remains legal. The abortion funds argue that Paxton’s statements since the overturn of Roe v. Wade, coupled with the actions of conservative lawmakers, have made them so fearful of potential criminal and civil penalties that they have stopped their work.

They have asked U.S. District Judge Robert Pitman for a preliminary injunction that would stop Paxton from pursuing criminal charges or civil penalties against abortion funds. The state has countered that their fear of prosecution is “self-imposed,” as the attorney general cannot bring criminal charges and the law that allows him to bring civil penalties does not apply to abortion funds.
Okay, so, no, the AG can't prosecute criminal cases (something the Texas Court of Criminal Appeals just affirmed; again). So if a woman in a county where the DA won't criminalize abortion leaves the state to get one (why would a doctor test the DA's convictions?), can the AG bring a civil action against her?  Or the charity giving her the funds for the trip and the procedure?  Well, Ken Paxton has said he could.  Did he mean it?  Well...maybe; maybe not.

At the end of the seven-hour hearing Tuesday, Pitman noted that while attorneys for the state had repeatedly implied that the abortion funds had “nothing to worry about,” they had stopped short of saying so directly.

This is the judge who quashed the subpoena.  Safe to say he may be reconsidering that position.  And what Paxton said is not the only issue in this case:

At the end of the seven-hour hearing Tuesday, Pitman noted that while attorneys for the state had repeatedly implied that the abortion funds had “nothing to worry about,” they had stopped short of saying so directly. 

But that goes back to Paxton's statements, too:

As the leaders of several abortion funds testified to on Tuesday, they were particularly alarmed by Paxton’s statement that his office would “assist any local prosecutor who pursues criminal charges.” 

The AG can do that if the local prosecutor asks for the help (Paxton can't pursue criminal charges unilaterally).  The AG's office argued the AG can't file criminal cases, but that's not the heart of the issue.  This is:

Paxton, though, still has the ability to pursue civil cases and, in the case of Texas’ more recent abortion laws, is actually required to by state statute.

In 2021, the state Legislature passed a so-called “trigger ban” that went into effect 30 days after the U.S. Supreme Court certified its judgment overturning Roe v. Wade.

The trigger law comes with heightened criminal penalties — up to life in prison — and says that the attorney general “shall” seek civil penalties of at least $100,000 per abortion. 

Paxton's testimony about whether or not that law will be enforced is obviously critical in this suit.  But Paxton would rather eat a bug sandwich or fuck a pig on live TV ("Black Mirror" shout-out) than testify in court that he will promise, if re-elected, to never pursue any case under this statute.  Paxton's statements make it clear he wants to, and not just the women involved, or the charitable funds, but companies like, oh, say... Amazon:

But Paxton has alluded to wanting to find ways to use these civil penalties against people who pay for abortions out of state. In a TV interview with NewsNation, Paxton was asked about companies that are paying for employees to leave the state to get abortions.

“We’re going to be looking at whether the language covers at least the civil side, and that’s obviously what we can deal with,” Paxton said. “These penalties could even be for corporations, over $100,000 per violation. So we’re looking at that literally as we speak.” 

And the AG's lawyers, once again, preached it round and square:

Lawyers for the state disputed that concern Tuesday, saying that “for the most part,” the activities that abortion funds want to resume would not put them in danger of civil penalties from the attorney general’s office.

But in their filings in response to the lawsuit, the state wrote that they see penalizing people who help pay for abortions out of state as “a means to an end — the protection of human life, including the life of the unborn.”

“That interest continues whether the Texan mother seeks an abortion in Denver or Dallas, in Las Cruces or Lamesa,” the filing reads. “It does not matter if the travel and hotel are in Albuquerque or Austin—the procurement in Texas of the means of an abortion has intruded upon the State’s interest in the protection of human life.”

Small wonder the court is considering making Paxton testify so he can properly assess the equities in this case.

Beto is running ads about the abortion law in Texas, hanging it around Abbott's neck like an albatross.  Rochelle Garza, Paxton's Democratic opponent, needs to be doing the same thing to Paxton.  I still think this is the issue that could blow things up for Republicans in Texas.

“Everyone Has A Point Past…”

Or: I’m a little confused there. Trial judges always work unilaterally. There’s only the one judge making rulings. And the election really isn’t an issue, as Trump is not on the ballot. Sure, you can argue Trump is influential in the election, but you can always say a politician is influential in some way at some time.

I’m still in “Cannon is incompetent” mode. She’s so far in over her head she doesn’t know what to do next. But not ruling against Trump is not a sign of corruption and ill intent. Trump is not going to lose every motion just to keep legal Twitter happy. These changes, as Mariotti points out, are fairly minor. Cannon is changing her order because she really doesn’t know how to do this, and she doesn’t want to be seen as blindly following the lead of the DOJ or Dearie. So, yeah, she’ll follow Trump’s lead. Did I mention she’s incompetent?
This alters the deadlines, slightly. It doesn’t get Trump out of the box he’s in. Some people need to take a deep breath. Maybe count to “10”.

In A Nutshell

My point, I mean. Not Tribe’s, not Kirschner’s.

When news about Trump in court comes, I tend to look first at Popehat because he is a practicing trial lawyer, and because he’s been both a prosecutor and defense counsel. I’ve known a few prosecutors in my brief but unspectacular legal career, and they were stunningly confident in their abilities. Not because they were brilliant lawyers, but because the judges were generally on their side. They were, I mean, used to winning; and to holding their opponents, in criminal or civil trials, in contempt. Trial lawyers I knew, the ones in private practice, saw it as an effort, aware of the pitfalls and dangers of mistakes. Prosecutors saw it as a crusade because they went to court in cases they would win, or because they were the government and had to do the job. But mostly they expected to win, because they saw their opponents as people who deserved to lose. Even when it lost (which was rarely), the government couldn’t lose. Real people, the ones private lawyers represented, could lose a great deal? Government? Nah.

Oddly, most trial lawyers didn’t take their cases personally; but government lawyers did. They wanted to punish the criminals. They wanted their pound of flesh, their measure of justice.

It’s a generalization, of course; and hardly wholly accurate. But a lot of the former prosecutors on Twitter certainly seem to take the cases of Donald Trump very personally. Any minor victory he achieves in court, however insignificant, is a major affront. But is it?

Compare the reaction of Laurence Tribe, above, with that of Steve Vladeck, to Judge Cannon’s latest ruling:
Tribe reacts as if someone had assaulted his dignity; Vladeck is measured and reasonable. Part of that is that Vladeck does appellate work for clients suing the government (he knows what a David v. Goliath fight is.). If Tribe was ever in any court, it was a long time ago. Part of that is, despite this minor advance for Trump, the DOJ still has the whip hand. Besides, this civil case is moving rapidly (somebody on Twitter said the case will now be moved into 2023. So? Unless your idea of court cases is one-hour TeeVee dramas, most civil cases take years to resolve. That’s normal.). It also doesn’t much matter anymore. My image of this case now is a very adult-sized figure labeled “DOJ” effortlessly holding a furiously struggling child-sized Donald Trump with one hand, while building a serious weapon of a criminal case with the other.

The DOJ has already eviscerated Trump’s case (it is his, not theirs) in the 11th Circuit. They are building a criminal case, and nothing Trump does now in Florida or Brooklyn really matters to that case. He’s not slowing down that criminal investigation; he’s not stopping it. If anything, he’s keeping it in the public eye. He’s reminding the world he took 200,000 pages of documents (no, he didn’t; it’s a Trumpian exaggeration. But why does he think that helps him?). This drags on into 2023? That’s only costing Trump. He’s paying for the SM and, eventually, the vendor to review 200,000 pages. (Whether he’s paying his lawyers is their problem.)

Pass the popcorn.

And he’s cementing the idea he stole government documents, which does DOJ’s job for them when it comes time to sell the criminal case. This is no longer a banana republic conspiracy against a political opponent. This is now a serious criminal matter, thanks to all the publicity for that idea Trump is generating. He has one judge on his side who is braiding the rope he’s going to use to hang himself. He’s literally paving the way to his own prosecution.

Where’s the beef?


The Kingdom Of Preservation

I took a course, in the course of my Master's in English, on bibliography and textual criticism. The latter didn't mean literary criticism, but identifying changes (emendations) made in the transmission of a text, and especially errors.  They creep in everywhere; from the manuscript (what is that word?) to the proofs to the final publication to changes made by the author in subsequent editions (Leave of Grass grew and changed enormously over Whitman's life.  It was the only book he published, but he revised and added to it constantly until his death.)  Or changes in pirated editions, or changes by editors who don't like some words used somewhere, or simply error (again) in the transmission of the text into a new edition.  It's rather like a very complicated game of "Telephone":  mistakes and changes and elisions happen constantly. 

The transmission of the Bible is an excellent example.  Aside from the Septuagint and the later-discovered Masoretic text, (Greek translation of the Hebrew scriptures; and then the scriptures in Hebrew) just open a Nestle-Aland (the standard Greek New Testament) and look at all the footnotes indicating variation texts, usually just a word, sometimes a sentence or a passage.  There is no definitive edition of the Bible; and yet that's what these woodblocks represent for Buddhism. (Well, almost definitive; we're back already to that everything is a matter of conversation.) The Gospel of Mark alone has a short ending, a longer ending, and "Secret Mark," which was intentionally kept away from...the monks, I guess, since almost no one in the churches was literate at the time....and mentioned only in the works of the early church fathers (I forget which one right now, and I'm too lazy to get up and look).  The whole issue of "literalism" that appeared in early 20th century American Christianity (itself really a reaction to German Biblical scholarship in the 19th century) rests on ignoring this issue of which text is "literally" the one to take. well...literally.

So this kind of data transfer, over 8 centuries, with zero data loss, is simply beyond belief.  I am, admittedly, taking this twitter accounts word for it (why would I do the research to challenge it?), and I still find it hard to fathom.  It's more like something from a bad comic book than from reality.  And yet the thread is quite extensive on the nature of this preservation of a text; so extensive I didn't try to reproduce it all here, but commend it to your reading.

Myself, I am simply stunned.  This is one of the greatest human achievements of all time, and only now am I learning about it.  It truly is an amazing world, and there truly is always something worth learning, to learn.

Thursday, September 29, 2022

This Is Hilarious!

When we last left the intrepid General Paxton (the honorific for the Texas AG, at least), he was running for his life from a process server. Now we know why the server sought his testimony; we still don't know why he ran like a rabbit, though.

 Four days before the hearing, on the morning of Friday, Sept. 23, Austin attorney Elizabeth Myers emailed assistant attorney general Amy Hilton, saying that since it was not clear whether Paxton intended to be at the hearing, they were going to issue a subpoena out of “an abundance of caution.”

“I assume you’d like for us to serve that through you, but will you please confirm by noon today that you will accept service,” Myers wrote. “Otherwise, we’ll start the personal service process. I’d really prefer not to have to do that, of course.”

Hilton did not confirm whether they could accept the subpoena on Paxton’s behalf, so the lawyers had a process server deliver the subpoena to Paxton’s office Friday afternoon, emails indicate.

But on Sunday, attorneys from the Texas attorney general’s office told Myers that the subpoena was invalid because it was served through Paxton’s office but sought to depose him in his individual capacity, according to the plaintiffs’ motion before Pitman.

Attorneys for the state said that Paxton would be represented in his official capacity at the hearing by assistant attorneys general, and “declined to clearly indicate whether they would accept a revised subpoena,” according to that motion.

“Myers then indicated that this meant General Paxton needed to be served personally, and Ms. Myers asked if General Paxton’s counsel knew where General Paxton was so that he could be located and served,” the filing reads.

The representatives from Paxton’s office declined to provide that information but said they would determine whether they could accept a subpoena on his behalf, the filing says. By Sunday evening, though, Hilton said they did not yet have an answer for the plaintiffs’ legal team.

This, as I've mentioned before, is perfectly legitimate practice.  What follows from it, though, is more, shall we say, dubious.

“Please let me know ASAP if you are authorized to accept service so I can adjust our process server instructions,” Myers wrote in an email sent Sunday at 6:50 p.m.

The attorney general’s office acknowledged in a motion filed Tuesday that they were aware that the plaintiffs’ attorneys were going to attempt to serve Paxton with a subpoena. But they did not know that that meant they “intended to attempt personal service on Ken Paxton at his private residence.”

Did they expect plaintiffs to track Paxton down at a restaurant? When it comes to serving a subpoena, a private residence is not sacrosanct.  You can ring the doorbell and ask the witness to face you.  You can stand on the lawn and serve the witness as they leave the house.

At 8:30 the next morning, a process server arrived at the Paxton residence in McKinney to serve two subpoenas, one for Paxton to testify as an individual and one in his official capacity. According to the sworn affidavit, the server knocked on the door, told Paxton’s wife that he was there to deliver legal documents and offered to wait until Paxton was available.

Paxton’s version of events differs: He says the man never introduced himself, instead charging at Paxton while yelling unintelligibly, and that the server is “lucky this situation did not escalate further or necessitate force.”

This is where it gets funny.  Paxton the fleeing man fearing for his life now acted to protect the process service from certain harm.  Yeah, sure, Ken.  Like Barney Fife, your body is a deadly weapon.

Paxton remained inside his home for more than an hour. About 45 minutes after the server arrived at the Paxton residence, Myers sent Hilton an email, titled in part, “General Paxton is refusing and evading service this morning.” Myers said that Paxton was refusing to come to the door and that she had instructed the server to remain and continue to attempt to serve the subpoena.

“I wanted to let you know of this development and that we’ll need to report that to the Court,” Myers wrote. “We remain happy to serve General Paxton through you, as counsel, of course.”

Assistant Attorney General Christopher Hilton replied at 9:45 a.m., saying that they were not authorized to accept a subpoena addressed to Paxton in his individual capacity.

“I would be happy to discuss this matter and any ways that we could seek an amicable resolution of these issues,” he wrote. “But under no circumstances will we agree to have the sitting Attorney General testify in court.”

Wait!  Where's the shock that a process server is at Paxton's private residence?

Once the process server’s affidavit was filed, Christopher Hilton filed an emergency motion to seal the document, citing concerns about Paxton’s unredacted address being shared publicly — though the address was already public information. In the filing, he echoed Paxton’s version of events.

“Because the Attorney General did not know the process server—again, because Plaintiffs’ counsel failed to identify him or warn the Attorney General’s Office in advance—the Attorney General justifiably feared for his personal safety and refused to engage with the strange man who was lurking outside of his home and repeatedly shouting at him,” Christopher Hilton wrote. 

No, no, no!  Paxton feared for the process server's safety!  Didn't he?

In an email Monday night, Christopher Hilton asked Myers and her co-counsel, Jennifer Ecklund, if the process server was available to testify if needed.

“You never advised us that you would be attempting personal service on the attorney general at his home, and you’ve now endangered his and his family’s personal safety,” Hilton wrote in another email. “I had thought you were simply careless but it seems you did so deliberately.”

Actually, in the same way Paxton's office wasn't required to accept service or tell them where Paxton would be when to allow service, they had no obligation to tell Paxton's office they knew where his home (which is public record) was.

In the final email in the exchange, just before 9 p.m., Ecklund asked Hilton to “cease the accusatory tone.”

“We repeatedly tried to avoid having to serve your client personally, which I agree would have been preferable,” she wrote. “Your staff and client necessitated this, and we even advised that he was evading service before it was ultimately completed, to avoid a result embarrassing to you and your client.”

Plaintiffs are asking the judge to reconsider his ruling on this subpoena, so we'll see what happens.  Still, this was fun. 

Oh, by the way, the Texas AG STILL doesn't have criminal prosecution powers: Which means Paxton can't enforce abortion laws in the major metropolitan counties (almost all Democratic) where the DA's say they won't do it.

"Thus Do I Refute Him!"

With your own intolerance?

... Ho cited a number of high-profile examples of speakers being shouted down or otherwise censored at law schools across the country but singled out Yale Law as “one particular law school where cancellations and disruptions seem to occur with special frequency.”

Justice Alito, the calls are coming from inside the house again!

In February, in the wake of Georgetown Law’s suspension of Ilya Shapiro, the judge surprised the audience at a Federalist Society–organized event on Georgetown Law’s campus by giving a resounding defense of Shapiro during a speech that was initially intended to be about originalism. At the time, Ho acknowledged that he “was scheduled to talk” about originalism but said he’d “decided . . . to spend my time today talking about Ilya Shapiro.” In those remarks, which garnered significant public attention, Ho delivered blistering criticism of the campus attitudes that had led to Shapiro’s ouster, arguing that “cancel culture is not just antithetical to our constitutional culture and our American culture,” but “to the very legal system that each of you seeks to join,” and declared: “If Ilya Shapiro is deserving of cancellation, then you should go ahead and cancel me too.” 

In a nutshell, Ilya Shapiro is this guy:

On June 2, Shapiro was reinstated as senior lecturer and executive director for the Georgetown Center for the Constitution after a 122-day investigation — which began before Shapiro started his first day on the job. Georgetown investigated Shapiro after he tweeted that Sri Srinivasan, chief judge of the U.S. Court of Appeals for the District of Columbia Circuit, would be President Biden’s “best pick” for the Supreme Court. He continued: “But alas [Srinivasan] doesn’t fit into latest intersectionality hierarchy so we’ll get lesser black woman.” Shapiro’s “lesser black woman” phrasing gained considerable attention on Twitter and within the Georgetown community, and led Georgetown Law Dean William Treanor to denounce the tweet as “appalling” and “at odds with everything we stand for at Georgetown Law.”

But according to judge Ho, you have to suffer dicks when they are conservatives; or something. I dunno.  Shapiro was reinstated, but then he quit.  So I'm not sure how that fits into Judge Ho's example of "speakers being shouted down or censored at law schools across the country.  Apparently you're only supposed to object to obnoxious people quietly; or when you're a Judge on the 5th Circuit, where asking other judges to follow your lead is not "cancel culture" or "antithetical to our constitutional culture and our American culture," at all.

Funny how that works.

This is actually funny: The majority of "consumers" for Yale Law graduates are law firms and corporations, who probably don't give a wet snap about the "culture" of Yale, but only about the quality of its graduates.*  Yeah, it's a prize to work for a federal judge; but that's rather like winning the lottery than being the purpose for securing a law degree from Yale. And really, how many judges are going to decide to turn their backs on a whole class of law graduates because Ho is upset with the school they attended?

Of course, he preaches it round and square, as a retired judge once put it to me:

To those who’d say he’s hypocritical in condemning cancel culture while canceling Yale, he’d argue that cancel culture is about excluding, while he wants institutions of higher education to include more people—especially people with views outside liberal or progressive orthodoxy.

So he wants more people tolerant of his point of view, and less tolerance for people who don't hold his point of view?  How is this not hypocritical, again?

In concluding his remarks today, Judge Ho cited Russian dissident Aleksandr Solzhenitsyn’s famous essay, Live Not by Lies. The judge noted that Yale filed an amicus brief in Grutter v. Bollinger, the 2003 affirmative-action case, in which it told the Supreme Court that it wants “a diverse and inclusive educational experience, teaching students to view issues from multiple perspectives.” But according to Judge Ho, recent events at YLS have made clear that that was a lie.

“Any school that refuses to stand up against cancel culture—and instead caters to it, and even engages in it—is not a school that is interested in educational diversity,” Ho said. “And it’s not a school I want to have anything to do with.”

“I hope others will join me. But I will not live by the lie.”

Solzhenitsyn was a fine novelist, but otherwise a bit of a crank.  And "teaching students to view issues from multiple perspectives" is something I learned in seminary.  It was the hardest education of my life.  Judge Ho would hate it, since what he really wants is students who see things from his perspective.  If Yale students were shouting down liberal and progressive speakers, I wonder how upset he'd be?

And "cancel culture" is as much bullshit and empty of meaning as "originalism" is in the law.  To call yourself an originalist, as Ho does, is alread to "live by the lie."

I'm sorry if Yale law graduates get black-balled by this clown, but that's the risk you take if you go to Yale in order to get the clerkship in order to grab life's brass ring.  Nobody ever said it'd be fair. 

*The link below that paragraph points out that Yale is quite proud of its placement of law clerks.  May be it's time for Yale to reconsider marketing itself to such a singular and perhaps easily turned, market.  Once upon a time judges were not percieved as political creatures; but if they're going to act like it (hem-hem, Alito), then it might be in Yale's best interest to cultivate other markets.  Or place themselves at the mercy of a handful of federal judges for at least another generation (generations are lasting longer than 30 years these days).

A Political Stance?

Or a completely racist one?  Or is there a difference anymore?  There's that, too. Never heard of Pedro L. Gonzalez, which makes it easier to imagine him muttering this in public, and everybody just moving quietly away.

The One-Eyed Man Is King

I'm reading through, belatedly (it was published in 2016) Tom Wolfe's The Kingdom of Speech.  It's so good I've almost finished it in one sitting; but like all Wolfe's works, it's not that good.  Maybe I'm too dismissive there.  The central thesis of the book is that language is humanity's "superpower" over all the creatures of the earth (it's been pointed out by better thinkers that Genesis has Adam naming the animals, and thus asserting a level of supremacy over them).  He traces this thesis through Darwin (who struggled with the problem of proving language was a product purely of evolution, like fangs or claws or humans being hairless (no, really!), and so keeping his theory a Grand Unifiying Theory of Everything.  His other locus of interest is Noam Chomsky, who starts with the assertion of a grand theory of language that explains everything about language; until it runs into an example from the real world that undoes all he did.  Not that Chomsky ever acknowledged that (no more than Darwin did).  I want to give it some measure of reflection here, in what are essentially my public notes on such matters as interest me.  But as I'm at the end of the book now, I'm going to start there, and work backwards a bit as time and my interest allow.

So, at the end, Wolfe tries to Sum It All Up, trumping both the Evolutionists (as he labels them) and the other linguists who throw up their hands and declare they don't know what language is, after 150+ years of trying to answer that simple question.  Wolfe answers it (he thinks), but already (surprise!) he misses a salient point:

One bright night it dawned on me---not as a profound revelation, not as any sort of analysis at all, but as something so perfectly obvious.  I could hardly believe that no licensed savant had ever point it out before.  There is a cardinal distinction between man [sic] and animal, a sherrly dividing line as abrupt and immovable as a cliff: namely, speech.


Speech was the first artifact, the first instance in which a creature, man, had removed elements from this case, sounds...and turne them into something entirely new and man-made...strings of sounds that formed codes, codes called words.

He goes on, but tp no greater effect.  And the point he misses is an intersting one.  For pages and pages and pages he points out that Chomsky, in the '50's, has posited both a Universal Grammar and a LAD, a "language acquisition device" which is embedded in the brain (soon to be discovered!, Chomsky said then. It hever has been, and he eventually abandoned the idea altogether).  This LAD  both provides humans with a UG, and allows humans to learn and use language.  (If you're thinking of the classic cartoon where step two is "And then a miracle occurs," you'll be disappointed to learn Wolfe never reaches for that rather obvioius reference.  I'm still convinced that cartoon is applicable to most grand theories, especially in science, which is far less self-examining than philosophy or theology.  But I digress....) Wolfe is a bit obssesed with it, but even in the late '70's, when I was in college, the LAD was spoken of as more a product of mind than brain (a function of human consciousness, not an organ embedded in gray matter somewhere, like the pineal gland).  But there is a physical factor about speech, one Wolfe doesn't examine, although it's quite, quite fundamental (read Wolfe too long you start repeating adjectives for emphasis, too, also):

Human speech is only possible because of human phsyiology.

There's a reason Koko's handlers had to teach her sign language.  Koko had lips, and a tongue; but not vocal chords, at least not human ones.  And no brain power capable of shaping those lips, with the tongue,  into sounds.  Not language sounds, anyway.  They knew that.  They didn't even try (it had been done, and failed.) So they went with ASL, perhaps to prove language began as gestures (one of the evolutionary theories of where language came from.  Nobody knows, because we have no records of language, well, before language.)

Humans alone can control their vocal chords and their breath and lips and tongue, even teeth, to produce language.  We alone have the mental capacity (or ability, if you prefer) to conjure speech from our bodies, and our bodies are uniquely set up to produce speech.  Our brains direct our throat, larynx, tongue, lips, lungs; and sounds come out that our hears can hear and, in turn, our brains interpret.  For whatever reason, of all the creatures on earth, we alone can do this.

Two things set us apart, then:  one wholly physical (we learn speech first, writing later); one wholly...well, what, exactly?

Aye, there's the rub.

(Wolfe also tries to argue for what language "is," and all he comes up with is that language ia mneonic device that allows us to remember large amounts of information, but compact that data in to much simpler, shorter words.  There's an argument to be made there until we get to simple sentences like "I love you" or "This music is particularly beautiful," which hardly seems the stuff of mnemonics at all.  It can carry a great deal of resonance; or it can be a flat, dull statement with very limited context.  I love my wife, I love my cat, I love my daughter.  Hardly three equal statements, and do they convey to you a wealth of knowledge, or just a rather uniteresting commonplace, especially since you don't know me, my wife, my cat, or my daughter?  What am I remembering, to myself or you, with those phrases? I dunno; seems like weak tea to me (which is a mnemonic; most metaphors are, I suppose.). Memory is clearly a function of language: we write books to @remember” knowledge (which is language; or stored in language. How do we know the dancer from the dance?) But us that the primary use of language? When I tell my wife “I love you,” what am I remembering?)

(And if words are codes, how is it we adopt them so swiftly?  Chomsky supported his theory of a UG by pointing out how children use "grammar" of a language, even if they aren't quite proficient at it, and only later refine their understanding.  Our (the Lovely Wife and mine) favorite story is our daughter at age four or so declaring she couldn't pick up some of her toys, as we'd just asked her, because she was "full of hands."  She meant her hands were full; but we still say "Full of joy" as well as "joyful," so why was she wrong?  Except the code isn't quite right, is it?  Part of the problem with Wolfe's analysis is that language is a bit too complext to speak of it in simplistic terms.)

Yeah, that's a poor start; but it's all I've got.  I'm gonna go finish the book and then, maybe, start from Darwin and move forward.  Later, gators.

I Am Repeatedly Reminded....

...that the British upperclass, up to the King (before he abdicated, but made clear after he did so), had a "sweaty crush" on Hitler. 

At least before the Battle of Britain, I assume.

"Not With A Bang, But A Whimper"

How many people know who Christoper Rufo is? Show of hands (get 'em up! No googling!)

Yeah, not exactly MTG/Boebert/Gaetz/Gym Jordan material here.  Not even a FauxNoise talking head/frequent guest.  So:  Mr. Influential, right?

I point this out not to critique Popehat, but to indicate this "fight" is over.  Going after public libraries?  How many people go there, actually?  And the ones that do, how many consider the books on the shelves to be personally vetted and given an imprimatur by the librarian on behalf of the city (or county, or local government at any level)?  We're not exacly talking about publications by Catholic religious and ordained requiring the nihil obstat if not the imprimatur to be published and distributed to the public.  Free speech for me, but not for thee?

This is where stupid ideas go to die:  at the absolute nadir of their influence and importance, when the excuse is so threadbare you can see through it in poor light.

I despise book banning because you never ban books, you just make it hard for some people to get them (which is bad enough), but you do so in the name of your self-interest and your selfishness.  That's not really as popular a stance as a few people think it is.

Oh, Dear, What Can The Matter Be?

Who is he fucking kidding?

“It goes without saying that everyone is free to express disagreement with our decisions and to criticize our reasoning as they see fit,” Alito told The Wall Street Journal on Tuesday. “But saying or implying that the court is becoming an illegitimate institution or questioning our integrity crosses an important line.”

It appears Alito is upset because the calls are coming from inside the house:

Earlier this year, Justice Elena Kagan said that the Supreme Court was losing its connection with the public. “That is a dangerous thing for democracy,” she added.

Of course, his sweeping statement doesn't have to be limited to the comments of Justice Kagan.


Or: Industrialization Has Left Us With Too Much Time On Our Hands

Um...yeah, okay. Was? I tried to watch “Blonde” last night. It was so predictable (and Oates-ian) I couldn’t do it. So agree to disagree. (That’s right, this ain’t Twitter!)

Wednesday, September 28, 2022

“Really Don’t Mind If You Sit This One Out”

To be honest, I’ve never heard of Lizzo; which is not to my credit or her discredit. So when I saw this: I just thought it was the LOC being nice to a celebrity musician. And then some right-wing racists went crazy: Of course, I’ve never heard of those clowns, either. I’d just say there are more unapologetic racists out there than I would have imagined.

This Is Not Helping Trump

Trump blames the SM by saying vendors can’t do it in time. Stop there, because DOJ says they can get a vendor, but Trump has to pay for it. So it’s a weak argument that sounds like you didn’t really try. And Trump asked for all this. He can’t whine now that this is hard. You called this tune, now you’ve gotta dance.

But that’s small beer. The big news is Trump is telling the world he took 200,000 pages of government documents.

200,000 pages.

It may be a gross exaggeration. But Trump’s team again steps on the rake they put in front of themselves. The exaggeration is an excuse for their failure with vendors; but it also makes Trump one helluva thief.

Hallowe'en Scaries

She never found any, did she?

Don't Say I Never Did Anything For You

emptywheel reads the pleadings for you (and me. I did that for a living once upon a time. Nobody is paying me to do it now, so damned if I'm gonna waste me time. Life's too short! And I'm too retired....). I will, in turn, do the Reader's Digest condensed version* of emptywheel's analsysis. 

To explain:  emptywheel helpfully provides bulletpoints from relevant court orders and pleadings.  I'm going to cut out some of the details and try to give you the gist.  You want the details straight, the link is above (and I recommend it anyway).


After Cannon appointed the SM and gave him marching orders, SM set a date of Friday (yes, two days from my writing)  to submit a declaration or affidavit about property NOT seized (I guess in contravention of the DOJ inventory and affidavits); property seized but about which information from DOJ is incorrect (again, I mean the inventory list); and property seized but not mentioned in the inventory.

A lot of ground, IOW, and all going to the heart of: "What are we doing here?"  Dearie doesn't want to mess around.

Trump's response was sealed.  DOJ (not sealed) responds to "objections" by pointing out that, without the information required above, the SM can't begin to categorize documents at all, much less decide privilege claims.

Cannon then revises her order, per the 11th Circuit ruling, laying out four categories of documents to be used by the SM.

Dearie then orders plaintiffs to specify documents and, for each, state the privilege.  There are four categories of privilege, two for each attorney-client and executive.  Again, I'll spare you the bitter details.

Trump objects again; again under seal.  The DOJ response points out the Dearie's amended case management plan is consistent with the Appointment order, so, again, Plaintiff has nothing to stand on.

Details matter here, in court anyway; but the gist is, Trump doesn't like Dearie's "git-er-done" philosophy, and is throwing sand in the gears every chance he gets.  Still, clock is ticking. 

And here's where those details matter.  Emptywheel just references a third Cannon order.  I understood that was the one responding to Dearie's queries (see what I did there?!) about what the hell with her order after the 11th smacked her hard.  Dearie now says...well, I'll quote emptywheel this time:

Once the Court has reviewed the Special Master’s recommendations and ruled on any objections thereto, the Special Master will, if necessary, consider Plaintiff’s motion for the return of property under Federal Rule of Criminal Procedure 41(g). Plaintiff shall submit a brief in support of the motion no later than seven calendar days after the Court’s ruling on the Special Master’s recommendations. In addition to addressing the merits of the Rule 41(g) motion, Plaintiff’s brief should address specifically whether the motion may properly be resolved in this action or must instead be decided as part of the docket in the action in which the relevant warrant was issued, 9:22-MJ-08332-BER.
And now I'll translate:  Dearie is sick of this shit, because neither Cannon nor Trump seem able to wipe their own...noses.  So once matters are settled (maybe they are now, maybe they aren't?), the SM will decide whether to consider a Rule 41(g) request for return of property.  If so, Plaintiff has seven days to brief it (I don't know if that clock is ticking or not).  Dearie also raises what I call the jurisdictional question:  should this matter be in Cannon's court or, under Rule 41 (as I read it), should it be before the magistrate who issued the search warrant?  Dearie wants to get away from this shit, but he also wants to straigthen it out (and he's hardly above slapping Cannon silly at this point.  She is the epitome of a "Trump appointee," even if there are several on the bench who aren't so flamingly incompetent.) He's serving notice to all and sundry that this shit is, basically, over, but for the cryin'.

Trump's response:  say it with me: "Under Seal."  

DOJ's response?

Third, the Special Master’s request for briefing on a particular point of law is similarly consistent with the Appointment Order. The government will brief that point of law. It behooves Plaintiff to brief that point as well.

I can't improve on that.

Let me quote emptywheel judiciously to explain the state of play now, and why Trump never should have brought this action, and should (he's the plaintiff) just drop it now:

If Trump complies with the order to confirm or deny the inventory, it will require him to admit there are 103 documents bearing classification marks that he didn’t turn over in response to a subpoena, an element of the obstruction and possibly the Espionage Act offense. To make any claims about the inventory, Trump will quite literally either have to confess he committed at least one crime or his lawyers will have to affirmatively lie (and do so without access to the other FBI evidence documenting their search protocol that would disprove the lie).

If you're wondering, no, he can't invoke the 5th.  Dearie will just hand him his head and tell Cannon to do the same (i.e., dismiss this crap because plaintiff failed to meet the burden of proof).  And if she doesn't, the 11th will slap her silly again.  She knows that. 

There is possible escape hatch for Trump.  This comes in a paragraph detailing all the ways Trump is screwed on issues of privilege and identifying documents he thinks are so privileged, so this is a bit out of context.  Still, the point is interesting:

Dearie can’t do his job if Trump won’t specify what kind of privilege he is claiming here. But by suggesting Dearie’s order is inconsistent with Cannon’s order (as DOJ’s response suggests Trump is doing), Trump may be trying to hasten to the point where Cannon fires Dearie and replaces him with someone who’ll hold Trump to a standard other than that required by a Special Master review, not to mention the Presidential Records Act.

Yeah, maybe.  My read is that Cannon wishes this would all go away so the world would go back to not noticing what a hack she is.  If she fires Dearie, DOJ may go to the 11th again.  She has to be scared to death of that.  I think she's more likely to keep Dearie and discard Trump; but reasonable minds can differ on questions of fact.


By attempting to do this under seal, then, Trump is also attempting to hide the nature of his complaints in case Cannon decides to respond by firing Dearie. If she fires Dearie with this public (and she might!), it’ll make it all the easier for the 11th Circuit to reverse the entire appointment as an abuse of civil procedure.

There's also another reason Cannon might want this to go quietly away:

Cannon is still hiding the filter team status report that would show that she made false claims about its contents to even claim jurisdiction, and she may well hide Trump’s objections for the same reason: because they make her own actions all the more improper. 

Jurisdiction is fundamental and is an issue that can never be waived.  Jurisdiction is the court's authority to act as a court; without it, nothing the court does is valid or enforceable.  Judges know this.  If Cannon is responsible for a failure of jurisdiction, it's very, very bad for her.

But the person who's really put himself in the crosshairs is Trump:

But somehow, none of the crack lawyers representing Trump or Judge Cannon thought through that if this is really treated as a civil suit, to prevail, Trump will need to make affirmative assertions that DOJ can then use in a criminal case against him. 

A crack team of legal geniuses, yessiree bob! 


 *Ask yer grandpa! Whippersnappers!