Wednesday, January 31, 2024

I Still Don't Think The Border Is The Flex the House GOP Thinks It Is

You know, sorta like the impeachment of Joe Biden? Could they show you on the doll where Joe Biden touched their wallets? Really don't think that sells much further than MAGA. Most people want something done about the border now, not in a "secret deal" with North Vietnam that only Nixon can deliver. 

Gym Jordan: if we cut off funding the government can't process migrants and they have to stay in Mexico or El Paso or Eagle Pass or wherever Abbott busses them! Genius! They can hear themselves, right? And if you’re wondering if this is all as stupid as it seems: It is.

I Will Confess I Am Confused

Yesterday I posted on this kerfluffle, but I didn't realize at the time that the SCOT had already suspended the depositions and given the parties until Feb. 29 to file briefs in the matter. At least I assume that's what happened; I don't think they've set a date for arguments yet, and that's the deadline that's been reported.  

But then this happened today:

Texas Attorney General Ken Paxton could face a potentially expensive and uncomfortable jury trial to defend himself against former deputies after a Travis County judge declined Wednesday to end the case in the whistleblowers’ favor without a trial.

The decision by Judge Catherine Mauzy means that Paxton, who announced that he won’t contest the facts behind the case, may have to be questioned on the record in open court about the allegations made by four former top deputies — something he would have avoided had Mauzy ruled in his favor.

It also means that the deputies’ attorneys could be allowed to present their evidence that Paxton improperly fired them — which they have yet to do in the three years the suit has been litigated.

Attorneys representing Paxton declined to say whether they’d appeal the decision, nor did they offer any additional comment Wednesday.

(Sharp eyed readers will have noticed that Jan Soifer issued the order on the depositions, which SCOT suspended, and Catherine Mauzy issued this ruling on Paxton's....whatever it is.  It's not an MOTD, more a nolo contendre. Whatever it is, it didn't persuade the judge; and I'm not sure it can be appealed.  Then again, I'm not sure what the status of this suit is.  Wait, I'm getting muddled.  My point was: two judges, one case.  Yeah, Travis County has an "open docket," which means you get whatever district judge is available on whatever day the hearing occurs.  This is normal, IOW; not aberrant.  Back to the confusion...)

Without seeing the pleadings (at least), I can't begin to sort out what's going on here.  Basically this is Paxton's posture:

On Wednesday, Paxton’s attorneys argued that it was within his rights to avoid a lengthy, costly trial by asking for it to be over, declining to argue over the facts presented by the plaintiffs, accept whatever damages the judge decides, and declining to appeal or contest the final ruling.

And he’s allowed by law to do that while denying the allegations at the heart of the the case, attorney Bill Hefland told Mauzy during the 40-minute hearing.

Given that, he said, there was no reason for the lawsuit to go forward — unless the plaintiffs wanted to either run up attorneys fees or use the lawsuit for their own investigations.

“We’re totally through the looking glass,” Hefland said in the hearing. “You don’t need a trial, you don't need evidence. I’m here to tell you my client concedes to the entry of judgment today, and my client waives any right to appeal that judgment. So what in the world would a trial do? What is the legitimate reason for pursuing this lawsuit and not taking the judgment? I would submit there is no legitimate reason.”

Except the baloney is never sliced so thin it only has one side:

One reason, plaintiff attorney TJ Turner responded, is that it would be impossible for the judge to even determine the damages without hearing any of the evidence in their case.

Another, he said, is that Paxton is trying to “have his cake and eat it, too” by vigorously denying what the former deputies are alleging while also trying to avoid any public airing of their arguments by suggesting he won’t argue with them about it.

“We still have to put on our case,” Turner said. “This is just the latest parlor trick in Office of the Attorney General’s quiver so that they avoid what the A.G. fears the most, and that’s testifying under oath.”

The plaintiff can always, in other words, put on their case.  The defendant doesn't have to participate, or put on a defense.  The "Defendant's Original Answer" I am familiar with (I think procedure has changed on this point in 30+ years) denied each and every, all and singular, the allegations made by the plaintiff, and demanded they provide evidence and proof of same in a court of law.  Mind, after that, the defendant could simply refuse to further participate.  This happened to me on a divorce case, where the husband lived in New England (yeah, I know; somewhere up there far from Texas is my point), and the wife was Daddy's Little Girl, and Daddy was paying a shark to be her lawyer.  We lost contact with our client (husband), and asked the court to let us out of the case.  He did, after a brief and unnecessary hearing so her lawyere could charge for a court appearance.  Pretty sure noboby in that case ever heard from the husband again.  Paxton wants to do that, but the plaintiffs want to prove their case.

So far, this matter has never gone to trial.  It was going to be settled, until the Texas House refused to foot the bill for Paxton's actions.  Now Paxton wants it all to go away and the only way he can do that is to tell the court to...make it go away.  This is where my confusion starts.  This is not a Motion to Dismiss, aimed at proving the plaintiff has no case at law.  This is not a withdrawal of counsel, leaving defendant to the tender mercies of the plaintff's attorneys (no court would do that, btw).  My ex-client didn't formally withdraw any contest to the divorce, he just effectively did so.  But the plaintiffs are entitled to prove their case, especially if they ever want to force the State of Texas to pay for Paxton's official behavior. So this action by Paxton, as a procedural matter, as a matter of motion practice, is...huh?

I'm equally confused with the stance of the SCOT.  What are they going to rule on?  Whether or not Paxton can force this case to end without deposing him?  Whether or not it can be ended without allowing plaintiff's to put on their case or conduct discovery at all?  Frankly, this one has "BIG HORSESHIT" written all over it, just because of what the court down the street from the county courthouse is doing.  The District Judge is behaving like a district judge.  The Supreme Court of Texas is behaving like an arm of the Texas GOP on behalf of Kenneth Paxton, an individual.  

Sure seems like they're trying to slice that one sided baloney, at least from here.

Which they pretty much did in the Kate Cox decision, so nothing would surprise me now. 


 

The Question Of The $48 Million Loan

Recall that the New York AG has asked Engoron not only to claw back $370 million in ill-gotten gains from Trump and the other defendants, but also to order a variety of injunctive relief that would prevent Trump and others from doing otherwise lawful acts. That relief includes bans, whether permanently for Trump or more temporarily for Eric and Don Jr., on their participation in the New York real estate industry and their service as directors and officers of New York companies. 
In requesting said relief, the attorney general’s office argued that the defendants not only have “a demonstrated history of creating and using false financial documents,” but also that their conduct is likely to recur without such measures. Why? Because, the AG’s office argues, Trump and the others’ unlawful financial conduct persisted throughout the attorney general’s investigation and even after the monitor’s appointment. That Jones has uncovered what could be even further evidence of fraud, as recently as last year, could be the cherry on top of the sundae that Engoron serves Trump.
My guess is, after 8 weeks of trial, this is just another brick in the wall. Or maybe it’s the last straw. Either way, once again, Trump’s got nuthin’. 

Let me back up a little first, because this point bears emphasizing:
What’s more, Jones’ letter implies that Trump’s present-day disclosures to the Office of Government Ethics are similarly flawed. Indeed, a review of Trump’s 2023 personal financial disclosure report, which he filed as a presidential candidate in April of last year, reflects the loan as an existing liability, not an extinguished one. If the loan never existed, that means that Trump — while under a court-appointed monitorship — was lying to the federal government and misleading the monitor. 
What could this all mean? After all, Trump’s team has rebutted Jones’ account, insisting that executives never told Jones the loan hadn’t existed and providing a recent memo — without any identifiable author — simply stating that the loan was no longer due or payable.
Like the question asked by Robbie Kaplan: “What will it take to make Trump stop?” That’s the question this puts to Engoron, if he needs it. The second point is: once again, Trump has no response. “Loan? What loan? We had a loan. It’s over. Trust us. Have we ever lied to you?”

And Trump will go to the poorhouse insisting he did nothing wrong. Which will do him as much good as denying this loan.

I think this loan is a shiny thing reporters can latch on to instead of analyzing and understanding 8 weeks of testimony. But Engoron has to do that, and can’t rest his judgement on this footnote. It’s a good story; but it’s not even a microcosm of the real story.

🐒

Host John Roberts noted during a panel discussion on Fox News that a Trump conviction "could really swing people's preferences in terms of who they vote for for president." 
Roberts then asked Common Sense Society Senior Fellow Christopher Bedford, "How much risk is all of that to Trump?" 
"Well, it's real," Bedford warned. "And I've got to take that seriously." 
"A lot of these attorneys or attorney generals are throwing everything that they can, and prosecutors are throwing anything they can at the wall," he added. "So Trump's got to be living in fairyland if he thinks that none of these things are going to be convictions and none of these things are going to stick." 
But Bedford said that most voters had made up their minds. 
"Either they think that this guy is guilty of all the above or they think that it's completely a hoax or it's something he's just being politically persecuted," he explained. (emphasis added)
Polls dominate our political narrative. What the polls say is true, is true. And when polls determine voter turnout, as in the famous election year when AP called the Presidential race hours before polls closed in California and people literally left the lines at polling stations and went home, we can definitively say polls affect elections. But otherwise? It’s sheer guesswork, and every conclusion is based on…polls

Might as well say it’s turtles all the way down; it’d be more honest.

Now polls tell us Trump loses votes if he’s convicted of a crime before November. Which is probably true, but how will we ever know? But my real interest is that highlighted portion. I don’t think the election is all but decided by now. My experience is that campaigns mean something (which partly explains why we are in perpetual campaign mode. Political reporters start in on the next election the morning after the last one.). I don’t think the electorate is even paying attention yet. But my support for that position is…polls.

Or turtles; all the way down.

And if I’m wrong, or if Trump is convicted and loses in November (I expect both to happen, but I don’t necessarily draw even a correlation between both events. Except I think most voters don’t want a felon for president. Local politics can elect a crazy; even state politics. POTUS is our only national office. We tend not to want a crook there.), how do we prove any criminal conviction (if there’s more than one) was the cause? Maybe the electorate is locked in, and Trump has already lost. Maybe a criminal conviction is the “October surprise” voters are waiting for to change/cement their decision. Maybe none of the above.

We can’t know now; and we can’t know in December. It will be what it will be, and we can’t predict it and be safe in our expectations. That’s how Hillary lost in the first place. Nobody wanted to vote for her, but nobody thought Trump could win. Had it not been for the electoral college, he still wouldn’t have. And now we’re in a post-Dobbs world and arguing over whether the 14th Amendment means what it says. I think we should worry less about what the polls say “they” will do, and spend more energy on what we can do.

Otherwise, we just abdicate to the turtles. All the way down.

A Cunning Plan

The former president was asked about using his political operation's money to pay the debt in that case as well as the civil fraud suit, but he appeared totally confused. Instead of replying, he asked about the penalties. When the reporter clarified, Trump appeared to still not understand, because he began ranting only about the civil fraud penalties he is expecting any minute from Judge Engoron in New York. 
"I didn't do anything wrong," he said. "That's been proven as far as I'm concerned." (A)
Trump then claimed that the case was "largely won" in the court of appeals. " (B)
We won that case," he reiterated. (C) Prosecutors are seeking more than $350 million in that case. 
The reporter again mentioned the Carroll suit and asked about the campaign funds, and Trump replied, "That's a ridiculous case." 
The ex-president didn't answer about whether he intended to use campaign funds to pay his court-ordered debts. (D)
It’s all a part of a carefully thought out strategy.

Annotations:

(A) Just the opposite was proven in summary judgment, which was upheld by the Appellate Division. Trump has never understood this.

(B) The appellate division held some claims were barred by the statute of limitations, and those claims were dropped. Trump still thinks that applied to the entire case. It didn’t.

(C) see above 

(D) Doesn’t he have that much in the couch cushions?

“Are You Now, Or Have You Ever Been, A Member Of The Communist Party?”

Bobble-throated slapdick.
You said today, as you often say, that you live in Singapore. Of what nation are you a citizen," Cotton asked. 
"Singapore," Chew responded. 
Cotton then asked Chew if he was ever a member of the Chinese Communist Party, to which Chew responded, "no, Senator, again, I'm Singaporean." Chew at one point even reminded the Senator that he served in the Singaporean military for two-and-half years. 
TikTok is owned by the Chinese company ByteDance, but TikTok itself is an American company. Chew has an American wife and children who are American citizens. Chew being of Asian descent doesn't mean he automatically has ties to China or the Chinese Communist Party. 
This isn't the first time a Republican member of Congress has confused Chew's citizenship. When he was first questioned by Congress in March of 2023, Rep. Dan Crenshaw (R-TX) asked if Chew was bound to turn over all relevant data gathered by the company to Chinese intelligence as required by law of all Chinese citizens. 
“That would include you,” Crenshaw said. “So if the CCP tells ByteDance to turn over Al data that TikTok has collected inside the US, even within Project Texas, do they have to do so, according to Chinese law?” 
"First of all, I'm Singaporean," Chew replied.
As is the one-eyed jack from Texas. God, we are represented by idiots.

Tuesday, January 30, 2024

Calling all TRUE AMERICAN PATRIOTs!

Please remember this is a man with vast experience in litigation, a man who knows how to handle a trial:
I am in the process, along with my team, of interviewing various law firms to represent me in an Appeal of one of the most ridiculous and unfair Witch Hunts our Country has ever seen - The defamation Sham presided over by a Clinton appointed, highly partisan, Trump Hating Judge, Lewis Kaplan, who was, together with certain other Radical Left Democrat Judges, one of the most partisan and out of control activists that I have ever appeared before," Trump said. 
He then added: 
"He was a 'bully' who demanded two trials, rather than one, denied me Due Process, would not allow me to put forth vital evidence (of which there was much!), and only allowed me to be on the witness stand for minutes, telling my lawyer what to ask, and telling me to only give one word answers, as his wife and friends sat in cordoned off front row seats watching with glee." 
Trump also added, "This entire HOAX is a disgrace to our American System of Justice. Any lawyer who takes a TRUMP CASE is either 'CRAZY,' or a TRUE AMERICAN PATRIOT. I will make my decision soon!”
You will have less than 30 days to review the trial record, formulate grounds for a new trial, and probably figure out how to secure a $90 million bond. While working for one of the most notoriously difficult clients in America.

The Judge Was Mean will be a required ground for appeal. Also MUST MENTION Trump was not allowed to speak freely, obviously a violation of stare decisis and res judicata and the rule against perpetuities. Other required defenses/claims will be provided on social media.

And what lawyer doesn’t want to work for the privilege of being a TRUE AMERICAN PATRIOT?

Please don’t all call at once. We will get to all of you. Please don’t ask for a retainer or any guarantee of payment. We’ve got a bond to fund.


As The Clock Ticks...*

 "Bottom line, so ... Letitia asked for $370 million having originally had a $250 million figure," said Litman. Personally, he suspects Justice Arthur Engoron, who is presiding over the case, will be closer to $250 million than $370 million, but "right now he's going to clobber them without a doubt and already be looking forward to the appeal and trying to, you know, prevent reversal."

With regard to the monitor of the Trump Organization, Barbara Jones, Litman said that "she's just there to make sure he doesn't do any funny business while this is under adjudication, so she's not trying to find crimes, but she did find that the Trump Organization is really 250-plus different entities all in an umbrella in a trust out of Florida. But with that aside, I'm looking for Engoron — we talked about the aftermath of the E. Jean Carroll case. It'll be like that times four in terms of its impact on Trump and the kind of bond he'll have to put up to appeal."

"Both the A.G. or the State of New York doesn't get the money right away," he added. "Maybe E. Jean Carroll doesn't. But Trump has to part with it fairly soon and that is a major, major hit."

Trump has to part with it within 30 days of the judgment being entered, as an appeal bond.  After 30 days, no bond and the state of New York makes demand.

He couldn't get a $5 million bond; there's no way in hell he's getting one for 50 times that amount.  And the fact he sought a $5 million bond argues against him having that much cash in the couch cushions.

Stick a fork in 'im, he's done! 

*I actually have an old hearth clock, once the property of my great-grandfather, ticking away on my desk above my computer.  Ain't technology grand?

 


Stand By Your Man/Fear Of The Fifth

On Truth Social, Trump posted a call for the Texas Supreme Court to rule in favor of Texas Attorney General Ken Paxton, one of his greatest allies. Trump argued that "enough time and money has been wasted" already and implied that the Texas Supreme Court should rule in his favor.
First problem: this case is not before the Texas Supreme Court.
Attorney General Ken Paxton’s efforts to end a whistleblower lawsuit against him has been dealt another blow after a Travis County judge denied his attempt to end the case without being deposed. 
The ruling, which Paxton’s office publicized in an angry statement late Wednesday, means Paxton remains ordered to sit for a deposition on Feb. 1 in the wrongful termination suit filed in 2020 under the Texas Whistleblower Act. The lawsuit from four of Paxton’s former top aides allege that they were fired as punishment for reporting Paxton to the FBI on suspicion of bribery. The aides said they believed Paxton was misusing his office to help campaign donor and friend Nate Paul.  
In a press release Friday, Paxton's office said it is asking an appeals court to review the judge's denial of his attempt to end the case. 
Paxton has previously sought to block his deposition and end the suit, but earlier this month, the 3rd Texas Court of Appeals and the Texas Supreme Court affirmed a lower court’s decision to force him to testify under oath. The deposition was set for Feb. 1.
I can’t say for sure based on this report, but it seems to me the response to this new appeal will be “asked and answered.” Unless the latest order raises new issues of law that couldn’t have been contemplated in the prior rulings, this appeal is a dead letter. In any case, it’s an appeal to the 3rd Circuit, not to the SCOT.

What the hell does Trump think he’s doing? Employing droit de seigneur? Of course, Trump is a numbnutz who has no idea how the judiciary works. As for Paxton, this is the lawsuit that led to his impeachment. The Lege never did authorize the settlement, so I guess (I don’t know what state the suit is in) Paxton is just trying to slink away. Slink away without saying more about this (is the FBI listening?). In fact, that’s a logical inference: Paxton isn’t worried about the political impact of this case; he’s spending money against incumbent Republicans (like my state Rep.) who voted to impeach him. He has no shame, or concern, there.

He must be worried about what he’ll say that the FBI wants to know, since he didn’t testify in the impeachment trial, and the FBI can’t put him before a grand jury. Be interesting to see him sit for the deposition and plead the 5th. More interesting than he wants things to get, most likely.

“An Amalgam Of Collective Incentives”

"Collective incentives”? What the hell are those when they’re at home?  And how do you amalgamate them?Piling bullshit into a structure does not make it a building material. "Delay, delay, delay” is expensive. And where does the money come from if he loses the election and donors lose interest? (And delay is not an effective strategy against governments that don’t run out of money or lose interest, especially when your end game is a Hail Mary.) And he still owes $93 million, and faces four criminal trials, the first of which may be in late March (New York, if D.C. is postponed).
A spokesperson for one of the PACs, Alex Pfeiffer, waved away the reported sum and told the Times his group raised about $120 million. 
 “This is old, recycled news” Pfeiffer reportedly said. “Every dollar being raised by MAGA Inc. is going directly to defeating Joe Biden in November.”
So who's going to pony up the next $50 million? Trials are where the meter REALLY starts running.

And speaking of an amalgam of collective insights:
"Behind the scenes, Trump has reacted to the possibility of Biden and Swift teaming up against him this year not with alarm, but with an instant projection of ego," two sources told Rolling Stone. "In recent weeks, the former president has told people in his orbit that no amount of A-list celebrity endorsements will save Biden. Trump has also privately claimed that he is 'more popular' than Swift is and that he has more committed fans than she does."
Good to know all this pressure is not distracting Trump from what is important. πŸ‘

Speaking of “hiding in plain sight.”

😎

Message? “We Don’t Know How To Govern

“And we barely have the votes to do this! So we can’t vote on a border bill! We’re, like, really busy!”

Always A Good Day

Is Alina Habba Running The House?

"Dear Judge Kaplan: Just Kidding! ❤️ Alina!"

And just in case that letter isn't entirely legible: "Post-trial motions" can only mean a motion for new trial, which doesn't preserve error, it just creates the bridge between the trial and an appeal. I'm not letting go of the option that she failed to preserve any reversible error for appeal during the trial.  "Potential bias hostility towards defense counsel" is going to be an interesting issue, since Kaplan bent over backwards to help Habba try to get evidence admitted into the record when she clearly didn't know how to do it.  As NTodd noted: "Does ‘I don't like to be spoken to that way’ qualify as reversible error? lol"  The question answers itself.

Habba had better hope Trump can't come up with that bond money, because he's gonna be mighty pissed if he can't appeal at all.

(Yeah, the threat of Rule 11 sanctions scared her shitless.  She'd be responsible for those, not Daddy Warbucks.)

(And yes, she sent that letter less than two hours after Kaplan’s letter.)

Alina Habba Is The Dumbest Lawyer In The World

The length of our overlap [at the firm] was less than two years," Kaplan wrote in the letter. "During that relatively brief period more than thirty years ago, I do remember the partners I worked with and none of them was [Judge Lewis Kaplan]." 
Kaplan went on to shred Habba for making what she called a "baseless claim" about her relationship with the judge based on one anonymous quote in a New York Post story from someone who described Judge Kaplan as a "mentor" to her. 
"While both the New York Post and Ms. Habba purport to cite the recollections of an 'unnamed partner'... that partner (if he even exists) clearly has a very flawed memory about events that occurred three decades ago." 
Kaplan concluded her letter by stating that she reserved the right to "seek sanctions" against Habba in response to her claims.
Discuss.

More To The Point

That ship has sailed. Trump can deny the allegations all he wants: the jury disagreed with him. And since Trump had to escrow $5 million, it’s the jury decision that matters.

That ship has sailed. Game over. You lost the race and the horse is dead. You can stop beating it now. And Habba’s temper tantrum is based on an anonymous source who may, or may not, have been a lawyer (or a partner!) in that firm when both Kaplans were there. It behooves Habba to verify a story before making accusations based on it. Such false claims are slanderous, after all…

Byron York really is kind of a dumbass.

I’m Sure The Speaker’s Position Will Stand Up To Scrutiny

In A New York Minute

“As you know, the jury awarded Carroll more than $83 million, and it's only one of several legal battles facing him," said Blitzer. "The Trump Organization, for instance, could soon be on the hook for hundreds of millions of dollars. What kind of impact is this judgment, and the potential for more, having on Trump?" 
"Trump never likes parting with money, and so there is no way he's happy at the moment, either about the E. Jean Carroll verdict, or the fact that he is going to have to pay some penalty in the civil fraud trial," said Haberman. "Exactly what it means for his company and personal finances, we don't know, but it doesn't mean anything good. This is a lot of liquid, a lot of question about how much cash on hand Trump actually has." 
"He may not have to pay both right away," Haberman added. "With Carroll, he will have to put something up while he's appealing, but it will be costly."
"Right away” is a relative term. If Trump files an appeal bond within thirty days of the judgment (separate from the verdict; the former is an official court order), execution is suspended. But execution can take place 30 days after judgment is entered (it probably already has been), if no bond is filed. So “right away” is coming up pretty fast.

As for the penalties: the judgment carries a 9% interest rate, from the date of verdict. Robbie Kaplan has said that sets the appeal bond at about $90 million. Trump has two ways to pay such a bond: cash, or 10-20% down (depending on the lender), the remainder in collateral.

Now, Trump is the self-proclaimed “King of Debt.” Which means he is heavily leveraged. Which means any bond company would be second or third in line on any collateral. Which probably explains, as Ms. Haberman previously reported, why Trump had to pay $5 million into escrow to appeal the prior Carroll judgment. IOW, he couldn’t get a bond.

So how does he get a bond on $90 million?

The NY fraud judgment is expected to be somewhere between $270 million and $390 million. Add 9% (interest) to either of those figures, and ask again: where’s the money? Trump couldn’t borrow $5 million; how does he borrow almost $500 million? Even if he does have $400 million cash on hand, he’s $100 million short.

He’s gonna have to pay those judgments pretty damned quick. Maybe not in a New York minute; but that won’t mean much, either.

BE VERY AFRAID!!!!😱

It's the "federal infiltrators" that raises this to paranoid art. Like “federal infiltrators” would be more effective than Highway Patrol? Or are they like fleas, and truck convoys get them in Eagle Pass?

Everybody Take Two Steps Back From The Cliff

Professor Vladeck explains it all for you:
With regard to the court, all that the justices did on Monday was to vacate a lower-court injunction, which had itself prohibited federal officials from cutting or otherwise removing razor wire that Texas officials have placed along or near the US-Mexico border. 
Nothing in Monday’s unexplained order stops Abbott from doing anything; it just means the federal government can’t be sanctioned by courts if it takes steps to remove those obstacles. 
Instead, the real issue here is that Abbott is deliberately impeding the ability of federal officials to act in and around Eagle Pass – in a way that isn’t in outright defiance of the Supreme Court (yet), but that is inconsistent with the supremacy of federal law.
So, not good; but not anywhere near Ft. Sumter on the Rio Grande.
That’s why Abbott is trying to invoke a claim that the federal Constitution itself authorizes what he’s doing, because if the Constitution doesn’t empower him to take these steps, then “preemption” (the idea that federal statutes and federal policies promulgated pursuant to those statutes override contrary state laws and policies) should be the whole ballgame here.
You're all relying on Greg Abbott (and Dan Patrick) to provide your anxieties.

And yes, we can blame the Supreme Court:
VLADECK: Yes. One of the real issues with the Supreme Court handing down such significant rulings without explanation, as I write about in “The Shadow Docket,” is the lack of guidance it provides to government officials, lower courts and the public about what is and what is not allowed going forward. 
Unfortunately, Monday’s ruling is a perfect example. Abbott is, quite obviously, provoking a fight over how far states can go to supplant, and not just supplement, federal law enforcement authority. 
Until and unless the Supreme Court conclusively answers that question, we’re going to be in this limbo – with the unseemly prospect of a physical standoff between state and federal officials in Texas while that question goes unanswered.
Along with our own gullibility, if course. (Why is it we always take what stupid public officials say at face value just because they are public officials?)
Just like Abbott and Monday’s ruling, I don’t chalk either of these cases up to direct defiance of the court. That said, the calls we’ve seen this week from Republican elected officials at both the state and federal level to ignore the Supreme Court (which are also premised on a misunderstanding of what the court did and didn’t do) are more than a little alarming – and evidence of how the Supreme Court’s declining public credibility has ramifications not just for left-wing critics of the court, but for right-wing critics, too. 
It says a lot about where we are that even this Supreme Court isn’t far enough to the right to satisfy these politicians – and it says a lot about the costs of the eroding public confidence in the court that attacking the court from the right is becoming increasingly popular. 
Indeed, we’re seeing in real time exactly why it’s important for the court to have broad-spectrum support: So that if and when it does need to intervene more aggressively in disputes like the current conflict between the federal government and Texas, there are no serious doubts that it can and should resolve them.
Abbott and the river are not the problems you are looking for.

Monday, January 29, 2024

The Things You Find When You Cross The Hudson

Or: why Molly Ivins never really fit in at the NYT: in one example.

When Alina Habba Is The Best You Can Do….

But that was enough for Alina Habba to cite that as another thing that they are going to appeal. In her letter to Judge Kaplan today, she said the following: 
"... there were many clashes between Your Honor and defense counsel. We believe, and will argue on appeal, that the Court was overtly hostile towards defense counsel and President Trump, and displayed preferential treatment towards Plaintiff's counsel. Indeed, the rulings, tone, and demeanor of the bench raised significant concerns even before New York Post's investigative journalism unearthed these new facts."=
Here’s the thing: you can argue with the judge; or you can be berated and excoriated by the judge. Or you can pass the time of day with the judge. But unless you get your objection to what the judge is doing on record, you can’t appeal it.

If she wants to argue anything of what she says here, she first has to establish that she objected to every instance she refers to. If she can’t, she has nothing to say to the appellate court, not even about this letter.

This letter all but convinces me that Habba didn’t preserve any errors she can appeal on. Not because this letter betrays some secret weakness, but because the fact of it betrays her ignorance of procedure. She’s still trying this case in the press. She has no idea how to try a case in court.

Which means she has no idea how to preserve error. She didn’t like what the judge said to her; once she said so. Other times, it seems, she kept her counsel, and accepted the rebuke. But unless she said “Note my objection,” or otherwise notified the court both that it was in violation of procedure or due process, and that the court should correct that violation, she didn’t preserve error. I’m willing to bet, now, that she didn’t. I’m willing to bet she doesn’t have shit in her motion for new trial. 

Which she should be working on, instead of writing letters to the editor; or more accurately, comments to a blog post. This complaint should be in that motion, not flapping around in public like dirty underwear. This won’t impress the judge, and it won’t get the attention of the appeals court.

If this woman can practice in New York Federal Court by the end of this, I’ll be surprised. If Trump doesn’t sue her for malpractice, I’ll be even more surprised.

When Newt Gingrich…

...is praising your political strategy, you know you’re losing.

Gingrich, not Trump, is the reason we’re in this mess, with a major political party only interested in political power, failing completely to understand political power comes from governance, not from grievance.

Bill Clinton should have taught Newt that lesson when Clinton survived a grievance-driven impeachment and Newt lost the Speakership and had to resign from Congress. History is repeating its, this time as farce.

The House GOP is down to the barest minority possible, and I’m not sure there won’t be more resignations before November. Biden is already running on”they want the problem, not the solution.” So is the Democratic Party:
The GOP plan is to double-down, go with Trump, and learn from the historical example of Newt Gingrich, one in a long line of disgraced Republican Speakers.

Future’s so bright, gonna need new shades. 😎

You And What Army?

Paranoia about federal entrapment is looming large over the “Take Our Border Back” convoy, which departed Virginia Beach Monday morning and plans to arrive in Texas later this week. 
By noon Monday, after a few hours on the road, the convoy had amassed just a few dozen participants—so far, predominantly men over the age of 60. The convoy’s promoters promised over 700,000 participants.
They go on to attribute low participation to paranoia and rumors of various types of entrapment/imminent arrest. This tells us a few things:

1) J6 arrests and trials were a deterrent.

2) Conspiracy theories breed conspiracy theories.

3) “Men over 60” means people with nothin’  better to do. Classic MAGA, nowadays.

But the likelier answer is, 700,000 trucks and drivers were never coming. Just like 25 GOP governors aren’t doing anything more than auto-signing a letter 
Small things lead to big things, but right now all Greg Abbott is doing is replacing barbed wire as the Border Patrol cuts it. The Supremes didn’t order Abbott to give Border Patrol access to the park at Eagle Pass, so there’s literally nowhere for 25 Governors to send National Guard soldiers to Texas to…protect barbed wire? To oppose Border Patrol agents in doing their lawful jobs?  This is not 1957. Those soldiers won’t be defending a school against the invasion of black students. They’ll be standing around mostly empty stretches of riverbank watching federal agents wield wire cutters. If they interfere they won’t be heroes, they’ll be arrested. Border Patrol is law enforcement, remember?

This is not a hill anybody is gonna die on. Or go to war on. I don’t know how it ends, but it won’t be in bloodshed and chaos and the fevered civil war dreams of idiot hosts on FoxNews. They can’t get 700,000 trucks to drive to the border (or a handful to drive anywhere). They won’t send soldiers from 25 states, unless they want them to do what the Texas soldiers are already doing: stand around, get bored, go AWOL. Mostly do not a damned thing. It’s all for show and Abbott had to up the spectacle to keep the show going. He’s hoping Biden provides him a new spectacle, just in time for November (since his spectacle of four consecutive special sessions laid a big egg which he has all over his face). That’s why even Dan Patrick is chiming in. Everybody wants to be responsible for the good they think is coming.

Biden is probably going to disappoint them. When the show can’t go on, attention goes elsewhere.
The GOP has reasons not to want attention to go elsewhere. Especially if Democrats can get enough GOP votes in the House to pass a border bill. And if the Republicans block it, attention needs to stay there anyway.

There are advantages to treating Abbott like small beer.🍻 

And Can They Get Some Black Helicopters To Fly Over? 🚁

“And At That Very Moment…”

"...they open the borders and all the brown people of the world 🌍 come in and make us play soccer ⚽️ instead of football 🏈 and America as we know it is over.”

And we’ll never know who won the Super Bowl, because white people won’t be allowed to pay black people to play football for them ever again.

Because Michelle Obama will be President for life.
With Taylor Swift her Vice-President in perpetuity. And Travis Kelce the Speaker of the House.

You heard it here first.

I forgot to add, the Pentagon is involved:

Dan Patrick Puts A Mouse In His Pocket

You know, the founders never dreamed we'd have a president like this one who would just open the door to everyone, and they said, well, invasion if an army came," Patrick said. "Well, we're facing an army." 
"And they're well-armed, they're well-coordinated, they're making emillions and millions of dollars off of Joe Biden," he said. "Don't mess with Texas."
No idea what he is talking about here. He has completely escaped into fantasy. He’s the Lite Guv of Texas. He only sets policy in the Texas Senate, and only when they are in session. And here he’s proving himself unfit to guest host for Alex Jones.

The Lege is not in session, Dan. And there is no war for you to lead.
Patrick claimed that Biden stood down instead of confronting Texas officials about the razor wire. 
"Because, I mean, what is this going to turn into a civil war?" Bartiromo asked excitedly. "I mean, you've got the Texas rights versus federal rights, both sides with guns." 
"And we believe constitutionally we are right," Patrick replied. "We have a right to defend our citizens, we have a right to defend this country, and we're just doing the job."
Said Orval Faubus at the schoolhouse door. Biden has the 101st Airborne. What d’you got, Dan?

Everything New Is Old Again

Troy Nehls is what happened when Louie Gohmert retired and all of Texas said “What village will send its idiot to Washington now? We must uphold a fine Texas tradition!” And the area south of Houston said: “Hold muh beer!”

Sunday, January 28, 2024

Find The Cost Of Fucking Around

This assumes a reasonably competent trial lawyer. I.e., it assumes Habba didn’t fuck up the trial so badly she effectively waived review of any grounds for reversible appeal. The first hint of that could come in the denial for the motion for new trial, which will probably be written for appellate review. Especially if Kaplan finds Habba failed to preserve any reversible errors.

At which point that judgement becomes final and due. And an even better investment for someone interested in buying it. And there’s always that 9% interest rate, which started yesterday.

I know Trump claims he has $400 million on hand. I just don’t believe him. Finding out will be kinda fun. 🀩 

πŸ’€

You know the scene of the guy being dragged from courtroom screaming his innocence as we know he was justly convicted, and the credits roll?

These issues were decided in summary judgment before the trial for damages; a judgment affirmed by the Appellate Division; and likely to be affirmed by the New York Court of Appeals.

Trump will not get that through his thick skull. πŸ’€ 

There’s a lesson there for the rest of us; and I don’t mean a moral one or a general one about life. The lesson is about Trump, the man who would be President.

Being Factually Accurate

Let’s be factually accurate. Trump lost the first Carroll suit not because he didn’t testify, but because he did. His deposition was entered into evidence in the trial, and it killed him. Tacopina kept Trump out of court because Trump either would have defiantly (and stupidly) driven the nails into his own coffin, or tried to contradict the deposition, with the same result. He affirmed that deposition in the second trial. He could not have denied it in the first. And he’s always said the event didn’t happen, so it would have been (as it was) “he said/she said.” He said that in his deposition. The first jury just believed Carroll.

Trump answered one question in the second trial, and he affirmed his deposition and all he said there. So they used it again, and now he owes north of $80 million.

The first trial was not the “foundation” of the second. Nor was the “legally proven ‘fact’” the foundation of the second. Collateral estoppel simply moved the case to the question of damages; the liability issue did not need to be retried. Trump had every chance to refute it; he failed. So he couldn’t get another bite at the apple in a liability defense. The only defense he was left with was a challenge to Carroll’s alleged damages. His lawyer chose to challenge the liability issue instead; which was an $80 million mistake.

The second was filed first, but delayed by Trump’s claim of presidential immunity from statements made while he was president. Those statements were the basis of this slander suit, to which were added the statements he made during the trial, about matters already proven true as a matter of law! Finding himself in a hole, Trump kept digging! 

Here we insert an irony alert!🚨. Trump was in this position in the second trial because he claimed immunity, and appealed the denial of that claim.  Delay, delay, delay, right? That bit him in the ass. 

So Trump put himself in this position by claiming immunity (and appealing that ruling), and by his braggadocious deposition. A deposition he affirmed in the second trial.

Trump has no one to blame but himself for how this turned out.

And yes, the trial judge did find Trump's actions to be rape. QED.

The Ghost Of Orval Faubus

"You and two dozen other Republican governors wrote a letter expressing solidarity with Texas urging the state to use every tool and strategy, including razor wire fence to secure the border," host Bash prompted. "A lot of people interpreted that to mean you think Texas should defy the Supreme Court and stop federal agents from removing the razor wire. Do you think Texas should do that? Should they defy the Supreme Court?" 
"Texas should stand their ground," expressionless Noem replied. "They should enforce their state law and go back to the constitutional rights that they have been granted to protect their state's sovereignty. That's what so many of us governors are offended by. Democrats were threatening to encourage the president to activate our [national] guards in order to get them to stand down and not protect our states."
"Let's you and him fight!" And yet Biden can nationalize the National Guard (Noem has acknowledged this) and make Noem’s NG stay home, as well as tell Texas NG to open the border.

Or he can just follow Ike’s lead and send in the 101st Airborne.

White Hoods United

Nikki Haley, a first generation American, just told Kristen Welker that immigrants crossing the Texas border are making everyone in America unsafe. She ranted on the subject for 25 minutes, with no sense of irony.

It was the kinder, gentler version of the white supremacist racism Dan Patrick is spouting. You can’t slip a piece of paper between them.

A Riot In His Own Mind

For the umpteenth time Trump proves he knows nothing about litigation. Trump is supposed to be deeply experienced in litigation, remember? He has no clue.

The New York trial was a trial for damages. His own lawyer wanted to avoid it because he knew he had no defense. It was long past time to prove Trump “did nothing wrong.” The Appellate Division upheld the summary judgment. That question is closed.

Nothing else Trump says there makes any sense whatsoever.

I do agree with Ron:
Did Starbucks pee in Trump’s Post Toasties? I doubt she tried to enter the courtroom with a cup of coffee, but Trump can’t stand the idea of a strong woman, period. 

I especially enjoy his rant that AG James knows what the outcome will be. She did her job. She’s right to be confident in her work. He can’t stand that, either.

And he has no clue what’s happening to him. It’s sad. It’s almost comical. It’s also absolutely disqualifying for the Presidency.

Living In Elon’s World

Like this?
"We really need the engineers to be living on the line. This is not sort of an off-the-shelf 'it-just-works' type of thing," Musk told investors. "That will be a challenging production ramp ... We'll be sleeping on the line, practically. Not practically, we will be."
Is that to benefit humankind? Or Tesla’s major shareholder?
Whereas The_Lutter questioned if Musk's request was even a good idea, adding, "Half asleep engineers working on vehicles sounds like a recipe for success!"
Explains the models they already sell. The ones that would drive into planes or under trucks, explode into inextinguishable flames on impact, or stop suddenly and uncontrollably in traffic. Or just shut you out, period. Yeah, that explains it, too. Gotta benefit the right people? Right?

“Only 2% In This Room…Could Do It”

Trump’s supporters are demented.

He said so himself.

It’s all about Donald. Everything. It has to be. 

That is not leadership. That is dementia.

Saturday, January 27, 2024

When A Lawyer Says “Objection!”…

They aren't trying to get attention in the scene in the movie. They are actually trying to “preserve error” so they can ask the appellate court to fix the mistake the trial court made.

Let me explain what an appeal is:

You go to the appellate court by asking them to correct the lower court. You can’t do that if you didn’t give the trial court a chance to correct their error. An objection during trial means the evidence/testimony being offered should not be considered. If the court allows it anyway, you have grounds for an appeal. (Whether they are sufficient grounds is another matter.) 

But unless you preserve the error, you can’t appeal. EOD.
“Let me ruin the suspense for everyone. Trump doesn't have an appeal," he said on Friday. "I know the talking heads on TV (who have never tried a case or appealed a jury verdict) have to mention it. Here's why it isn't going to fly." 
Manookian went on to say that, in order to have a meritorious case on appeal, "you have to preserve a reversible error at the trial level." 
"This is why you hire competent counsel. You need someone who actually knows the rules of evidence and procedure. Alina Habba had no clue what was occurring throughout the trial," he added. "She not only failed to preserve any remote grounds for appeal, like a moron, she repeatedly and unintentionally waived them over and over." 
He went on to include an example of Habba bungling the potential for a reversal.  
"For example, she kept saying 'no objection' as exhibits were entered into evidence. It appeared to me that she was saying that because she that's something she had heard real lawyers say before," he said Friday. "Unfortunately for Mr. Trump, what she was doing over and over was waiving his ability to appeal over those evidentiary issues. Because she is a moron who would rather *play* lawyer than do the research to *be* a lawyer." 
Manookian then concluded: "There's no appeal here. And because people have asked me in the past, no, there is no such thing as an incompetent counsel defense in civil cases. That's for criminal matters. Take this verdict to the bank."
So basically, Habba is down so deep she has to look up to see bottom. And she may think she can “play smart,” but there’s no evidence of it.

Habba might figure this out when she files a motion for new trial, if the Judge explains she didn’t preserve her error for that necessary preliminary step (the motion for new trial) to filing an appeal.

(I do seem to recall Habba made a few objections which were overruled. That doesn’t automatically give her grounds for an appeal, because the error has to be serious enough to lead to a reversal. Sometimes an “error” is not really worth preserving.)

Trump may not have to worry about appeal bond.

“Dementia” Should Be Diagnosed By A Qualified Expert

Could he pass it now? How many is that in numbers? Is the GOP adding a primary in that month? We’re going to corner the world market in potting soil and make everybody beat their swords into garden shovels? Nobody ever heard of them before. “Three generations of imbeciles is enough!”
Indeed, how could it be the Republicans’ fault? Well, if you insist. Said the native Americans about 500 years ago. And five centuries later, people are still coming here looking for a better life. The bastards! We could move him to the top of the list, but I think the Secret Service would object.  Never mind, that probably wouldn’t push him above Kennedy. I don’t think Judge Engoron is going to let you do that. Takes one to know one? They all know each other, you know. And ensure the right people win. The regulars would just show up in raincoats carrying big sheets of plastic.

And coming soon to a Biden campaign ad:
In the meantime, we’ll have to make do with these: "I’M TALKIN’ HERE!” "Anybody in here Catholic?”