Thursday, November 11, 2021

OH NOES! A DEE-LAY!

Yeah, not really. Let me just get an answer in to a question probably being asked right now: So here's where we are.  Trump wants to freeze the status quo, which is to say, get his stay on the release of documents, until the court can hear the case.  The panel may agree to that because the harm is de minimus.  The ARA knows that, and prefers one argument rather than two (although a preliminary rejection of Trump's request would moot the entire case.).  The question is:  can Trump get even that, given the state of the proceedings:  they don't have a strong argument, or they'd have made it by now; and the Memorandum Opinion of the Court is pretty damned good.  The Court has to rule off of that at this point.  It may prefer to tell Trump to pound sand.  It may prefer to have it's own say, and block the Archives until they have a chance to tell them what to do on their own.

Of course, the panel could also tell Trump "You should have filed this a few days earlier, to give yourself more time for appeals.  You knew about this deadline, why should we help you when you can't help yourself (i.e., his arguments are pretty damned lame)?"

So, we'll see.  The court might prefer to moot Trump's case on their own, and not because of circumstances.  OTOH, they might prefer to lighten their docket by mooting the case and letting it basically fall away.  I don't think the legal issues raised here are all that compelling or in need of adjudication.  I'm honestly not betting either way, except that this won't be tied up in the courts for months on end; and I don't think the Supremes want to touch it with a club.

And because I didn't post this until late:
Hearing is set for November 30, which at first looks like a no good, terrible, very bad thing.  But consider this:

The White House on Thursday also notified a lawyer for Mark Meadows, Trump’s former chief of staff, that Biden would waive any executive privilege that would prevent Meadows from cooperating with the committee, according to a letter obtained by The Associated Press. The committee has subpoenaed Meadows and more than two dozen other people as part of its investigation.

His lawyer, George Terwilliger, issued a statement in response saying Meadows "remains under the instructions of former President Trump to respect longstanding principles of executive privilege.”

“It now appears the courts will have to resolve this conflict,” Terwilliger said.

A ruling in early December could bring this nonsense to a halt, because all of these cases are going to be in the D.C. Circuit.  It doesn't surprise me they did this, but I still expect the Supremes to say "Thanks, but no thanks."  Especially since Congress and the POTUS agree on this, the records are government records, and Trump is just a private citizens now.

Courage.*

*I will just note that Mazars involved Trump's personal financial documents, not government records.  And it involved a subpoena issued against a sitting President.  That case has been batted around a lot in this matter.  It has no application here, however.
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"When November eleventh...was a sacred day called Armistice Day"

 It's only words....


Kurt Vonnegut, b. November 11, 1922, d. April 11, 2007.
I will come to a time in my backwards trip when November eleventh, accidentally my birthday, was a sacred day called Armistice Day. When I was a boy, and when Dwayne Hoover was a boy, all the people of all the nations which had fought in the First World War were silent during the eleventh minute of the eleventh hour of Armistice Day, which was the eleventh day of the eleventh month.

It was during that minute in nineteen hundred and eighteen, that millions upon millions of human beings stopped butchering one another. I have talked to old men who were on battlefields during that minute. They have told me in one way or another that the sudden silence was the Voice of God. So we still have among us some men who can remember when God spoke clearly to mankind. 

"The sudden silence was the Voice of God."

Precisely so.
"The ceremony of innocence is drowned...."


"The blood swept lands and seas of red...."

Yeats was not imagining things.  We forget; we would do well to remember.

My grandfather was a bomber in World War I.  I saw an old picture of his plane on his desk at his home when I was young.  He sat well forward of the pilot, in a bi-plane with an extended fuselage, a "snout," a "cockpit" like pilots and other passengers had on such planes.  Except he literally leaned over the side of the plane and dropped bombs by hand.  I never asked him about that war; I was too young to care.  My uncle was in France in World War II, or so I remember being told once.  He never talked about the war, either.  My brother-in-law was a Captain in the Green Beret in Vietnam.  He was in Laos and Cambodia before we were in (officially, anyway), either country.  His war experiences are a sealed book, too.  Perhaps it is just as well.

O Christ, son of the living God, have mercy upon u.
Thou that sits at the right hand of the Father, have mercy upon us;
And deliver us for thy Name's sake.

AMEN.

O Christ, when thou didst open thine eyes on this fair earth, the angels greeted thee as the Prince of Peace and besought us to be of good will toward one another; but thy triumph is delayed and we are weary of war.

SAVE US AND HELP US, O LORD AND MASTER.

O Christ, the very earth groans with pain as the feet of armed men march across thy mangled form.

SAVE US AND HELP US, O LORD AND MASTER.

O Christ, may the Church, whom thou didst love into life; not fail thee in her witness for the things for which thou didst live and die.

TEACH US TO DO THY HOLY WILL, O LORD AND MASTER.

O Christ, the people who are called by thy Name are separated from each other in thought and life; still our tumults, take away our vain imaginings, and grant to thy people at this time the courage to proclaim the gospel of forgiveness, and faithfully to maintain the ministry of reconciliation.

TEACH US TO DO THY HOLY WILL, O LORD AND MASTER

O Christ, come to us in our sore need and save us;
O God, plead thine own cause and give us help, for vain is the help of man.

SAVE US AND HELP US, O LORD AND MASTER.

O Christ of God, by thy birth in the stable, save us and help us;
By thy toil at the carpenter's bench, save us and help us;
By thy sinless life, save us and help us;
By thy cross and passion, save us and help us.

SAVE US AND HELP US, O LORD AND MASTER.

Prayer for Peace, the Evangelical and Reformed Church
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Veteran's Day/Armistice Day 2021


It's funny how conservative you get over time. I've come to prefer "Armistice" to "Veteran's" to label the day, maybe because "Memorial Day" has been taken over as another day to have a spasm of declaring ourselves free because we resemble Rome (with its standing army) more than we resemble Athens (with its citizen soldiers called to battle only when the need arose).

Paths of Glory is the story for today. The story of a French general ordering a suicide charge by his own troops, and then issuing a order to shell his own troops to get them out their trenches and into the fusillade of machine gun fire that would surely cut them down like so many blades of grass.

That's the movie for today. "A voice says, 'Cry!" And I say: "What shall I cry? All flesh is grass...."

And grass is the beautiful uncut hair of graves.

A child said What is the grass? fetching it to me with full hands;
How could I answer the child? I do not know what it is any more than he.

I guess it must be the flag of my disposition, out of hopeful green stuff woven.

Or I guess it is the handkerchief of the Lord,
A scented gift and remembrancer designedly dropt,
Bearing the owner's name someway in the corners, that we may
         see and remark, and say Whose?

Or I guess the grass is itself a child, the produced babe of the vegetation.

Or I guess it is a uniform hieroglyphic,
And it means, Sprouting alike in broad zones and narrow zones,
Growing among black folks as among white,
Kanuck, Tuckahoe, Congressman, Cuff, I give them the same, I receive them the same.

And now it seems to me the beautiful uncut hair of graves.

Tenderly will I use you curling grass,
It may be you transpire from the breasts of young men,
It may be if I had known them I would have loved them,
It may be you are from old people, or from offspring taken soon out of their mothers' laps,
And here you are the mothers' laps.

This grass is very dark to be from the white heads of old mothers,
Darker than the colorless beards of old men,
Dark to come from under the faint red roofs of mouths.

O I perceive after all so many uttering tongues,
And I perceive they do not come from the roofs of mouths for nothing.
I wish I could translate the hints about the dead young men and women,
And the hints about old men and mothers, and the offspring taken soon out of their laps.
What do you think has become of the young and old men?
And what do you think has become of the women and children?
They are alive and well somewhere,
The smallest sprout shows there is really no death,
And if ever there was it led forward life, and does not wait at the end to arrest it,
And ceas'd the moment life appear'd.
All goes onward and outward, nothing collapses,
And to die is different from what any one supposed, and luckier.


"Call the names. Call the names. Call the names."


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Wednesday, November 10, 2021

I Feel Strangely Vindicated

Plaintiff characterizes his motion as a Rule 62 motion “seeking . . . to preserve the status quo.” Pl. Renewed Mot. at 1. However, it is clear from the caption and the substance of Plaintiff’s arguments that he again seeks injunctive relief, rather than a stay of this court’s November 9 order. A stay would not give Plaintiff the relief he seeks—preventing the transmission of documents from NARA to the House Select Committee—as the status quo in this case is that NARA will disclose documents on November 12, “absent any intervening court order.” Pl. Mot., Ex. 7. Accordingly, the court will analyze Plaintiff’s motion as one seeking injunctive relief, rather than a stay.

Unsurprisingly, the trial court declined to give plaintiffs on appeal what was denied after a hearing.  So now I suppose they can go to the D.C. court, but absent a really compelling argument, “WE’RE ON A DEADLINE HERE!” is not grounds for an injunction at any level of the courts.  Is a stunning new argument forthcoming?

 In his renewed motion, despite the fact that he requests essentially the same relief as in his original preliminary injunction motion, Plaintiff has not advanced any new facts or arguments that persuade the court to reconsider its November 9, 2021, Order. The court’s analysis previously rejecting Plaintiff’s requested relief is thus equally applicable here: Plaintiff is unlikely to succeed on the merits of his claims or suffer irreparable harm, and a balance of the equities and public interest bear against granting his requested relief. Id. Nor is Plaintiff entitled to injunctive relief under the “serious legal question” doctrine.

Yeah, I don’t think so. 

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Perry Mason Moments

Oops. Oops, again. Never a bad thing in a criminal trial to make the defendant cry on cross-examination. Yeah, this isn't helping. "Because only good guys with guns can stop bad guys with guns?"--Wayne LaPierre, from somewhere in exile. What a guy! What a guy! And who among us doesn't take an assault rifle with us so we can provide medical assistance. I mean, you need a reason for the medical assistance first, right?

I have no criminal trial experience, but if I didn't have to put my criminal defendant client on the witness stand, I wouldn't.  My guess is the defense didn't have a defense to speak of, and the prosecution case was too strong to let a few defense witnesses fend of a conviction.
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Not The Droids You Are Looking For 👀

 I had very little courtroom experience, as a lawyer or a legal assistant, and even I know this is no big deal.

Besides, it always takes two to tango: "HAVE YOU NEVER MET A JUDGE"? I am, as I've had opportunity to state here before, an incredibly (i.e., painfully) shy person, and wildly overly sensitive (because I'm shy, or that's why I'm shy:  you decide, I don't care anymore).  I used to tell people I'd finally gotten over my painful shyness because I'd been yelled at by judges in open court, and hadn't melted down and left the room crying.  I know people who would consider such treatment in the course of doing their jobs to be unbelievably brutal and grounds for quitting and never returning to THAT place!

Lawyers in court either put up with it or do probate or business law, something that requires almost no litigation practice at all.

It really isn't that bad.  I really did realize that if I could stand that, I could pretty much do what I wanted in the world.  Still painfully shy, though.  I've learned to live with it.
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What You Will Hear

Two boobs in small-town Virginia want to burn books because that's the way they roll. Is this the sentiment of the entire school board, or a large swathe of the country? Who cares? Books! Fire! Cue Ray Bradbury comparisons!

What you won't hear:
"I don't think that the people that banned it actually read the book," Craft said. "What has happened is so many places have sold so many copies because now people want to see what all the hubbub is. They get it and they write to me and they're almost disappointed because there's no big thing that they were looking for."

Houston parent Marty Troyer said that his children were so confused why their favorite author couldn't be found on the shelves of their school libraries, so he responded by encouraging his kids to read the list of banned books.

"I hope my kids have a better understanding of the subtle and systemic ways that race works in America," Troyer explained. "Racism isn't something just about bad people doing bad racist things, it's something that impacts every area of life and people knowingly and unknowingly do things that are racist. We're all swept up in it, and need to make intentional choices to interrupt racism. That's why it's important to learn critical thinking and read authors of color."

What even the Raw Story article leaves out of the story is that Craft's books were returned to the bookshelves of the Katy school district libraries after a review (Katy is not, as the RS story implies, in Houston.  It's on the outskirts of Houston, but is a separate city.).  So, not exactly banned.  

But I suspect all this noise from a few cranks is going to make more reasonable parents (both "more reasonable" than the cranks, and the majority of the parents) push back against this nonsense, either publicly or just personally.  Either way is a good thing.  Of course, you won't see stories about that, because it doesn't gin up outrage the way a story about two boobs in Spotsylvania (I'm not making that up) on a school board want to burn books.  Where, one wonders?  Their own front lawns?  Doubtful?  The football field?  Yeah, the groundskeeper would love that.  Main Street?

These people are idiots, and should be regarded as such.
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Calm Down

Sorry to burst your bubble, but that's how the process works. Everybody gets a say, including you, including the people whose ideas you don't like.

I hate book banning with a passion.  But I also know it's a minority of students who use the library in the first place, and that minority gets smaller and smaller as you move up the grade levels.  Asking a committee of administrators and librarians to review a book for appropriateness is not exactly yanking it out of a curious child's hands, much less starting a bonfire on the school playground.  Libraries buy books in bulk; some of them may include inappropriate illustrations (the rise of graphic novels has made this more and more possible). Checking those books for grade levels is not the same thing as book burning or thought control.

Many of the reviews that have been done have returned the books to the shelves, or found they are appropriate for some grade levels, but not for others.  It's the way the system works.
Yeah, I remember hearing our high school librarian had pulled Cat's Cradle because a conversation between the narrator and a prostitute implied they ended up doing business together.  By that time those of us who were reading Vonnegut already had a copy, and a year earlier we were all discussing the wedding sex scene on page whatever of The Godfather which probably never made it to the school library either (although these days I wouldn't be surprised to see it there).  We all had our own copies.  I read my way through two of the three libraries of the public schools I attended (found some pretty decent porn in the UT library, but I was an adult by then).  I don't know too many students who did that.  I also read Kierkegaard in high school, without much understanding it.  I didn't find that in any library in town.  Keeping books off library shelves is not something I favor; but neither does it lead to the closing of the American Mind.  That door is more often never even opened, in my experience.

Although this is another matter: I do like this comment from one of the would-be book burners: 

...fellow board member Kirk Twigg added that he wants to "see the books before we burn them so we can identify within our community that we are eradicating this bad stuff."  

That's "porn is bad, but I have to review it first to SEE how bad it is!"  And book burning is well into "If it was good enough for the Nazis" territory.  But because two board members asked for it, doesn't mean it will happen. If anything, it's cause to vote those two clowns off the board at first chance.

Calm down.  I know the internet is an outrage manufacturer, and it's primary product is pissed off people.  Don't be one of them.
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Louder And Funnier

A pretty succinct statement as to why the courts are unlikely to so much as issue an injunction (they can't issue a stay, the trial court didn't rule in Trump's favor. There is no order to release that can be stayed; the court just declined to interfere with the process of the National Archives.). And this part of the order, which even I scanted, deserves more attention: The facts against Trump are actually pretty damning. I still don't see an appellate court ruling in his favor, or going to the extreme of stopping the release of the documents because Trump asked them to. There are equities on the side of the party moving for release (Congress, essentially) that weigh in here.  If the courts don't want to spark a minor constitutional crisis by jumping in the way the 5th Circuit** did over Biden's vaccine order (deciding the case without hearing arguments, essentially)*, they won't touch this dog of a case with a club.

Besides, there's stuff like this: Federal courts have their own rules of procedure (how you do things in court, like file pleadings or ask for an appeal.)  Each district and appellate court district has its own particular rules within those rules.  An attorney practicing in that district needs to know those rules.  Not knowing them is not fatal, but it doesn't speed your case or impress the court if you act the buffoon on such simple matters.  Like this:
Although requesting a stay is also pointless, since the court didn't direct the Archives to do, or not do, anything.  It just rejected Trump's request to tell the Archives not to do something.  You can't really "stay" that without ordering the extraordinary relief the court just spent 39 pages refusing to do.  And there's that Friday deadline, making another hearing in the trial court "impracticable," as the local rules have it.

There is, frankly, a lot of confusion on this point:
But the courts can't stay an order refusing to grant the relief Trump seeks without giving Trump the relief he seeks.  Kanefield understands that; sort of.
But the standard for issuing a stay still has to balance the equities and really serves to preserve the status of the parties until an appeal can be heard.  A stay in this case would just give Trump what he asked for the first time.  I don't see how the courts can do that without overruling the trial court on more substantive grounds than "We need to wait on this."  Trump is entitled to an injunction, or he isn't; and that decision needs to be made on more than "Friday is the deadline." Unless the appellate courts grant the relief Trump asks for, which requires more than a freezing of the status quo (which is what a stay for appeal is), those documents issue at 6 p.m. on November 12.

And Trump's lawyers may have made the whole matter blow up anyway:

Possibly the Friday deadline makes compliance with Rule 8 impracticable.  There's also the fact Trump is asking again for an injunction that was just refused, so....  Still, that's what motions for new trial are; asking the court to reverse the ruling it just made, and such motions are a general prerequisite to an appeal from a final decision.  This is an interlocutory appeal, which is generally harder to obtain.  Really, for all the entrails readings, we're back to this:

Yeah, in the final analysis, I think Trump is screwed. Then again, that legal opinion is worth what you paid for it.

*The D.C. Circuit or the Supremes would have to issue an injunction before 6 on November 12 to stop the release of documents, which is pretty fast service and puts the "extraordinary" in "extraordinary relief."  Trump's legal arguments are for shit, per the trial court; which penned an excellent order on why it shouldn't be granted.  An appellate court overruling that just for the sake of preserving the status quo would be an enormous interference in the matter, an unbalancing of the equities that would make the entire standard for granting an injunction a complete farce.  I won't go so far as to say it can't happen, but it would certainly, as Rangappa implies, be an assault on the separation of powers.

Still:  may you live in interesting times, eh?

**The 5th Circuit action was not bad because of the outcome (bad as that was, IMHLO), but because it acted peremptorily when there was no effective deadline (as in Trump's records case) to force their hand.  In short, there's not even a fig leaf of impartial objectivity in the action of issuing a permanent injunction and giving the government a short and clearly pro forma chance to respond.  On that basis alone I'd expect the Supremes to slap it down when it gets to them, while perhaps taking up the question of Biden's authority in this matter.  But who knows?
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Smoke, Mirrors, and Elephants

Gov. Greg Abbott told the Texas Education Agency on Wednesday "to investigate any criminal activity" related to "the availability of pornography" in public schools, saying that the agency should "refer any instance being provided to minors under the age of 18 for prosecution to the fullest extent of the law."

Abbott's request comes two days after he asked the agency, along with the Texas State Library and Archives Commission and the State Board of Education, to develop statewide standards preventing "obscene content in Texas public schools."

While those standards are developed, Abbott wrote to the TEA in his letter Wednesday, "more immediate action is needed to protect Texas students" against that inappropriate content, which he said is "a clear violation" of state law.

TEA officials could not be immediately reached. It was immediately unclear whether TEA has the ability to investigate criminal activity.

Actually, it's quite clear.  TEA has no law enforcement authority at all.  It might bring an action in state court to, say, take over a failing school district (this has happened recently), but it has to bring the action as the party with standing under state law.  It can't take over the school district by fiat.  Nor can it, by fiat, charge any school with violations of criminal law.  That power is reserved to the district attorneys.  Let me just quote from the Texas Attorney General's website:

Under Texas law, the county or district attorney has primary jurisdiction to prosecute most criminal offenses. The Office of the Attorney General assists local prosecutors at their request. The law also authorizes this agency to proffer assistance to local prosecutors. Most OAG prosecutions are undertaken on referrals.

Chapter 1, section 1.09, of the Penal Code provides that, “with the consent of the appropriate local county or district attorney, the Attorney General has concurrent jurisdiction with that consenting local prosecutor” to prosecute certain offenses, including:

Misuse of state property or funds
Abuse of office
Offenses against juvenile offenders in state correctional facilities

There's nothing on that page that mentions providing pornography to minors, a crime under Texas law.  Even if there were, the Texas AG functions rather like the FBI when the matter is a violation of state law:  both agencies act in an advisory capacity, not with original authority.

Abbott knows this.  He was a Texas Supreme Court Justice.  He's well aware TEA has no criminal enforcement division, just as he knows the Texas Association of School Boards has no authority over school boards.  He doesn't care.  He's playing to the peanut gallery.  He won't ask the 250 or so Texas District Attorneys to enforce this law against the schools.  He knows better.  He has no direct authority over them, and his involvement would destroy any criminal case brought under this statute.  This is an empty gesture.

Shape without form, shade without colour,

    Paralysed force, gesture without motion;

No wonder the majority of Texans say the state is going in the wrong direction.  But Abbott is playing on that, not suffering from it.  Democracy is not a self-correcting system.

School districts pretty much ignored his previous letter, because they all uniformly already do what Abbott asked TEA to make the schools do.  Hey, presto, victory!

The TEA will make conciliatory noises, but ignore this one, too.

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I Gotta Ask....

 "So what, then, do these voters want?" Rubin writes. "Many essentially see politics as a great battle between White, Christian America and the multiracial, religiously diverse reality of 21st century America. They want someone to help them win that existential fight. Government is there not to produce legislative fixes to real-world problems but to engage their enemies on behalf of White Christianity."

What has changed since Jerry Falwell announced his "Moral Majority"?  Or founded Liberty University?  Hell, I remember conservative (before the label became "evangelical") churches setting up private schools in the '70's because Brown v. Board was slowly but surely becoming the law of the land (it took about three decades, for those of you thinking everything should have happened yesterday).  What's changed?  Anything?  At all?

Same shit.  Different day.  The GOP has been moving towards this since LBJ's pen came off the paper inscribed "The Voting Rights Act".

The struggle is real.

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Forbidden Knowledge

I’m still not sure this isn’t a parody site. Except the Texas Tribune tells me Stephen Pinker is on the board of advisors. And this says he'll be teaching the class.

So maybe they just aren’t in on the joke.*

I'm kinda surprised they haven't offered Glenn Greenwald an adjunct position yet.

And because I can't seem to post comments again (Blogger hates me on a regular basis):

I would have thought those courses a joke had I not gotten wind of this project already. The place’s FAQ’s paint it as a place of radically free inquiry. The course descriptions belie it.

Waiting for “The Truth about Why Progressives Haven’t Stopped Beating their Wives.”

Can’t believe you passed over Stephen F. Austin State in Nacogdiches.

I thought it was a joke; but apparently these people are this clueless?  They brag they have "thousands" of professors seeking to flock to their light, which sounds pretty Trumpesque as they don't have a campus or even the money for more than a paltry faculty.  Texas Tribune reports they've raised $10 million already, but they need $250 million to really get rolling.  Oh, and they won't have all the "amenities" you and I missed out on; it's going to be a school like we attended, in other words.  A cafeteria, not restaurants or a food court on campus.  I presume no handball courts and climbing walls, etc.  You and I would recognize it as normal; students today will consider it primitive and stone age.  Which is not exactly a good marketing strategy.

And honestly, these course descriptions.

*I've looked again.  I'm quite sure this is a very well done parody twitter account.  For one thing, the tweets say they are preparing for summer 2022 classes.  The Tribune article says they won't be ready for undersgraduates until 2024.  Still, the whole thing strikes me as a supremely dumb idea.  What the world does not need is one more college.  OTOH, the statements from people associated with this "institution" are people mentioned in the Tribune article, and their quotes are real.  So in some sense this really is a joke they aren't in on.

Oh, well, it provides the world with another Twitter parody account.  I'm not sure we can have too many of those.  Not yet, anyway.

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They Keep The Elephants Away To This Day!

If we don't let men be men the elephants will overrun us like they used to do in the old Johnny Weismuller movies of my youth! The elephants did that because Tarzan was not there to protect the village! Everybody knew that, back when boys were boys and TV was black and white!!!!
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Ted Cruz Is A Goverment Funded Internet Troll

When he ran for the Senate the first time, Cruz swore to protect all our golfs from the UN and protect the nation from Sharia law (anybody remember Sharia law?  This was all only 9 years ago, people.)  All of that quietly disappeared from his website after he won the election, and has never been heard from since.

Cruz is trolling the rubes who think "Trexit" can be a thing.  It's a perennial bit of nonsense in Texas, that's popped up in my lifetime since at least the '70's.  It's absolutely meaningless and Cruz knows it.  But if you can't troll people as a US Senator, what's the point of having the job?

Aside from the salary, healthcare, and no boss, I mean.
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Tuesday, November 09, 2021

The "Tell" Is Using The Term "Deconstructing" Incorrectly

Legal advice, on Twitter, from an MD. It's the trifecta!
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Irreperable Harm And Its Discontents

Nope. Trump filed an interlocutory appeal: It is incumbent upon me to point out Trump was seeking an injunction (something that never showed up in the reporting, so, my bad) and frankly, since he couldn't get it in the trial court, his odds of getting it in the D.C. Appeals court are zip and none. OTOH, they may issue an injunction just until they hear Trump's argument, with the deadline being Friday.  I don't know if Trump has asked the trial court to stay its order, but it seems clear from the opinion (discussed below) the answer would be:  "HELL NO!"  

I'd say the trial court has pretty much taken the wind out of Trump's sails.

Thus, if a party makes no showing of irreparable injury, the court may deny the motion for injunctive relief on that basis alone.

That's from the court's opinion before it gets down to analyzing the legal issues.  It is a sign the trial court is not going to find such harm.  Spoiler alert:  it didn't.

Trump's basic argument, per the court opinion, was this:

He argues that his power to do so extends beyond his tenure in Office, in perpetuity, and that his assertion of privilege is binding on the current executive branch. Plaintiff also argues that to the extent the PRA constrains his ability to assert executive privilege, the Act is unconstitutional. In the alternative, he contends that when a former President and current President disagree about whether to assert privilege, a court must examine each disputed document and decide whether it is privileged.

This is critical, because while you may assume the appellate courts (or the Supremes) will stay proceedings until they can hear the case, they won't do it if Trump's legal argument is a farrago of legal bullshit.  Which is pretty much what that is, above.

The courts are not going to recognize an executive privilege in perpetuity, and are not going to find the PRA unconstitutional.  Nor are they going to find the former POTUS can screw the process into the ground by requiring court examination of each separate document.  Yes, the court may invent its own grounds for upholding Trump's claims; but as I've said before, I just don't think they are that interested in doing so, even on the "shadow docket."  They have enough heat coming in over the Texas abortion law and the Mississippi case that's pending.  Besides, the 5th Circuit has that turkey waiting in the wings, the ruling that Biden has no constitutional authority to issue a vaccine mandate.  Trump's case is small beer on the docket; I don't think the courts want to spend the holidays on it, especially in light of the findings of fact in this memorandum opinion (I urge you to read them, hint hint).

What I'm saying is, to get the court's attention, you have to make an argument the court might be interested in.  I think Trump has singularly failed to do that, and his track record getting into the Supreme Court really isn't very good.

Trump's argument is basically to throw out the PRA (the ruling statute) and go back to the PRMPA (the superceded statute) or just rely on Nixon v. GSA.  Which makes this passage from the court's opinion particularly trenchant:

Presidential conversations are presumptively privileged, but the privilege is not absolute. Nixon v. GSA, 433 U.S. at 447. It exists for the benefit of the Republic, not any individual, and accordingly, the presumption can be overcome by an appropriate showing of public need by the judicial or legislative branch. See, e.g., Nixon v. GSA, 433 U.S. at 447, 449; Nixon, 418 U.S. at 707; Senate Select Committee on Presidential Campaign Activities v. Nixon (Senate Select Committee), 498 F.2d 725, 730 (D.C. Cir. 1974).

Oh, and the authority of the Committee to request the documents is based, at least in part, on the Nixon tapes case. So, yeah....

And here is the passage you are most likely to see at least partially quoted:

Plaintiff does not acknowledge the deference owed to the incumbent President’s judgment. His position that he may override the express will of the executive branch appears to be premised on the notion that his executive power “exists in perpetuity.” Hearing Tr. at 19:21- 22. But Presidents are not kings, and Plaintiff is not President. He retains the right to assert that his records are privileged, but the incumbent President “is not constitutionally obliged to honor” that assertion.
That's gonna leave a mark.

I'm gonna risk boring you for a second time to make my point about what the parties bring to the court matters on what the court decides.  This is footnote 4 in the opinion:

Plaintiff also retains the right to assert his own personal “rights or privileges,” if any. 44 U.S.C. § 2204; see also Nixon v. GSA, 433 U.S. at 455-83 (analyzing former President Nixon’s assertion of personal rights, including privacy and First Amendment associational rights). Plaintiff, however, does not do so here. He makes conclusory assertions of attorney-client privilege and attorney work product, but he appears to do so as a species of executive privilege. See, e.g., Pl.’s Mot. at 3 (referring indiscriminately to “various privileges,” including “conversations with (or about) foreign leaders, attorney work product, the most sensitive national security secrets, along with a litany of privileged communications among a pool of potentially hundreds of people”); id. at 5 (referring without elaboration to “executive privilege and attorney- client privilege”); id. at 30 (referring to deliberative process privilege and attorney-client privilege in the same discussion relating to “the President”).

In any event, Plaintiff does not elaborate on these claims with sufficient detail for this court to assess them, nor would any such claim be convincing, because the records maintained by the Archivist, by definition, only include those records reflecting the “activities, deliberations, decisions, and policies” of the Presidency, 44 U.S.C. § 2203(a), and not private communications. Plaintiff offers no evidence that the records contain anything of a personal nature; in fact, he concedes that the responsive records do not involve private conversations between him and a personal attorney. See Hearing Tr. at 60:21-61:6. The court need not credit Plaintiff’s concern in the abstract.
Three points, one each for the highlighted sentences:  Trump fails to make a valid argument; he just asserts his right, basically as "king."  He doesn't elaborate his arguments so the court can respond to them.  The court has no burden to create arguments for the parties (though yes, courts do that from time to time.  Usually in bad legal opinions.)  Third, courts deal with the cases before them and the facts, not with issues of law that may arise under a different set of facts.  Change the facts, change the outcome.  It's one reason the law is never "One size fits all" and the stuff on Bad Legal Twitter is so...bad.

I like the reasoning in this bit, too, where the court rejects the claim it must examine each document to determine which are privileged and which are not:

Plaintiff appears to view the dispute as resulting in some sort of equipoise, and asks the court to act as a tiebreaker, reviewing each disputed record in camera. The court, however, is not best situated to determine executive branch interests, and declines to intrude upon the executive function in this manner. It must presume that the incumbent is best suited to make those decisions on behalf of the executive branch. 
The balance of the opinion addresses the power of Congress to request these records.  I won't take you into those weeds, but the reasoning is again sound and well-based in court rulings on the issue.  Unless Trump has a constitutional scholar on his team with a bomb they have yet to set off, his arguments aren't going anywhere on that point.  Take this as an example:

Plaintiff argues that the requests at issue here are burdensome because they are “unbelievably broad” and that their breadth is “striking” because they could “be read to include every single e-mail sent in the White House” on January 6. See Pl. Mot. at 21-24. But upon whom is the burden imposed? President Biden has determined that the requests are not so intrusive or burdensome on the Office of the President as to outweigh Congress’ “compelling need in service of its legislative functions.” Pl. Mot., Ex. 4 at 1-2. Unlike the circumstances presented in Mazars, here, the legislative and executive branches are in harmony and agree that the requests are not unduly intrusive, thus extinguishing any lingering concerns about the breadth of the requests.
That highlighted passage addresses the 'irreperable harm' issue.  Basically, Trump is no longer POTUS, the records sought are neither private nor personal, and the incumbent POTUS has approved their release. Where, then, is the harm to the former POTUS, who can't assert any personal interest in the records anyway?

And once again, what you say, matters:

The court agrees that the stringent balancing test of Senate Select Committee does not apply because, for reasons already stated, the requested records are not privileged. Indeed, at oral argument, Plaintiff’s counsel did not mention this test and instead asserted only that the Mazars four-factor test is appropriate.
The court is piling up arguments against Trump at this point, but that's because Trump failed to carry his burden to persuade the court an injunction was warranted.''

And just to tie off the "irreperable harm" issue and throw it in the dustbin:

Plaintiff fails to show that any irreparable injury is likely to occur. First, to the extent Plaintiff argues that he, as a private citizen, will suffer injury, he has not identified any personal interest that is threatened by the production of Presidential records. He claims no personal interest in the records or the information they contain, and he identifies no cognizable injury to privacy, property, or otherwise that he personally will suffer if the records are produced, much less a harm that is “both certain and great,” id., 787 F.3d at 555, if injunctive relief is denied.

And this is a nice (and necessary) summing up:

For reasons explained above, the court will deny Plaintiff’s request to enjoin Defendants from enforcing or complying with the Select Committee’s August 25, 2021, requests because Plaintiff is unlikely to succeed on the merits of his claims or suffer irreparable harm, and because a balance of the equities and public interest bear against granting his requested relief. 

Now, would the 5th Circuit toss these 39 pages aside and declare for Trump because he's Trump?  Yeah, probably; the 5th Circuit has some of the biggest bozos in the federal judiciary.  Will the D.C. Circuit do that?  No.  Flat: no. Will they hurry to resolve this case, or freeze it just to please Trump or appear "judicial"?  No.  That's not the standard.  A preliminary injunction should only be granted where the moving party has 1) shown he is likely to succeed on the merits; 2) will suffer irreparable harm otherwise; and 3) the balance of equities tips in his favor.  The court has to consider the position of the opposing party, IOW, not just freeze the status quo because there's a deadline on Friday.  Lose any one of those three, the injunction cannot go through.  The trial court shot down all three.  I don't think the D.C. Cir. or the Supremes are going to do the heavy lifting of finding all three exist between now and 6 p.m. Friday.

But stranger things have happened.  The Supremes could decide there's enough of a unique question here; then again, they could decide they have enough unique questions, and they don't want this one.  Especially since the plaintiff's arguments in the trial court were so weak.  The likeliest outcome is the Supremes decline to take it, and the D.C. circuit remands to the trial court for any further proceedings.

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A Reminder that Austin Is The "Liberal" City In Texas

That last tweet was the first I'd heard of the "University of Austin" (not to be confused with the state college in Austin, the University of Texas at Austin).  There is, again for clarity, a University of Houston; but it's a state school, too, not a private clown college like this.  (There's also, confusingly enough, an Austin College; but it's in Sherman, Texas.  Have I told you too much yet?)  Apparently they will study "thinkers" like Anne Coulter (is she still alive?) and be taught by luminaries like Micheal (Why Isn't He In Jail?) Flynn.

This is where I remind you that Alex Jones worked out of Austin for a long time, until he basically got sued into oblivion.

I gotta question how this "school" even gets accredited.  Oh, well, fools and their money....

I do like the implicit comparison between America and Rome.  Rome may have brought civil engineering to the ancient world, but it was hardly the model of self-governance, especially after Julius Caesar became diktator and never gave the office up.  But I'm guessing for this crowd that's a feature, not a bug.
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Let’s Start Here

Okay, now we change the facts but keep the outcome. The actions of these nine clowns (among who knows how many others) is reprehensible.  It's also not actionable.  Law enforcement has "taken little action" because there's basically nothing law enforcement can do.  Unless there is a conspiracy that can be shown (not just alleged) between some of these mouth-breathers, or an incitement to violence, or a true threat (did any of them act to carry out their threats? Does anybody really think this guy is going to attack the Reuters' journalist?), there's nothing law enforcement can do.

The problem actually lies with our elected officials, like Gosar and MTG and Madison Cawthorn, who egg these knuckle-draggers on.  Which means, as ever, the problem lies with us, we the people. Maybe we should pay more attention to whom we let into the House of Representatives.

Unless we're going to start locking people up for expressing opinions we don't like (which is precisely what a death threat, alone and by itself, is).  If we're going to do that, we've got to start building a lot more jails.

Ironic, isn't it, how "lock her up!" is offensive, unless it's aimed at the "right" people.
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That’s Not How This Works! That's Not How Any Of This Works!

I don’t know why Trump waited this long to enjoin the release of documents, but this is not how you do it. They asked the court to stay a ruling the court hasn’t entered yet. That’s the right procedure, but at the wrong time.  On any appeal, you must first give the lower court a chance to correct its error before asking the higher court to do so.  Trump's lawyers are basically signalling an appeal and asking the court for a stay of its order before they ask the appellate court to stay the lower court's order.

But there is no court order yet. As the judge pointed out early this morning, the court can’t stay an order it hasn’t entered.

Trump may appeal to the D.C. circuit Wednesday, but they will probably face the same brick wall there, for the same reasons. An interlocutory appeal is based on an order to appeal from. It won’t help that they haven’t sought injunctive relief until now. Injunctive relief is a matter of equity. You can’t get that relief if you’ve slept on it.

Trump’s lawyers seem to have just gotten out of bed. 🛏 
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Or…

McAuliffe wasn’t that good a candidate, and Youngkin not that repellent.

I still don’t think Virginia nationalizes, because “All politics is local.” Yes, parents are upset about school, but it doesn’t boil down to Zoom. Covid overturned a lot of apple carts. I know from personal experience that not all the people screaming at school boards or about CRT or library books have kids in schools. Parents were angry about their kids being exposed to Covid or being forced to wear masks. That issue has abated; politicians are finding ways to stoke the anger and deflect it from themselves. Greg Abbott has run in front of the crowd again, proclaiming Texas schools have “pornography” (his word) on their shelves and promising to root it out.

I’ve read his letter. He bashes the Texas Association of School Boards for not directing school boards to remove this “porn.” But TASB is a voluntary group with no power over its members. And school boards in Texas don’t oversee library holdings or purchases; school administrators do.** Abbott knows this, but he calls for the state agency, TEA, to direct districts to do what they already do: have a procedure for reviewing challenged books. Abbott knows these procedures exist, but he’s trying to convince people he’s keeping the elephants away, that but for him every school library in Texas would have nothing but porn on their shelves. Which would at least increase library usage in high schools.

Covid isn’t doing this anymore; Republicans are. Nazaryan’s analysis is misplaced. Parents aren’t outraged because schools closed last year. They are outraged because Republicans are stoking their fear and anger rather than trying to calm them. They are doing that to avoid responsibility themselves.* And it’s not even parents; it’s people who are angry, and don’t have any place to direct that anger. Republicans are creating that target and once they win the mid-terms (if they can make it last that long), the elephants will magically disappear, no longer the danger lurking around us.

Abbott knows the term “pornography” will inflame people. That’s the only reason he uses it. Once he’s ridden the outrage he hopes to create into another term, this will go away. As he says in his letter, providing pornography to minors is a criminal act. Of course then we’re back to deciding what “pornography” is.

I don’t expect to see any school librarians in the dock on criminal charges anytime soon. Especially not if Abbott wins his primary.

*In fact McAuliffe/Youngkin may have more to do with incumbents than with Democrats. No, Mc Auliffe wasn’t the incumbent, but a Democrat was. OTOH, Youngkin only won by two points. There really isn’t much to nationalize there.


Gov. Greg Abbott asked the Texas Association of School Boards on Monday to determine the extent to which “pornography or other inappropriate content” exists in public schools across the state and to remove it if found.

...

The school organization said it was "confused" why the letter was sent to the association, "which has no regulatory authority over school districts and does not set the standards for instructional materials, including library books."

"The role of a school board primarily includes establishing a strategic plan for the district, adopting policies in public meetings, approving the district’s budget, and selecting and evaluating a superintendent," a spokesperson for the group said in a statement. "In most school districts, the review and selection of individual library materials traditionally has been an administrative responsibility managed by professional district staff."

Abbott, like politicians before him, is playing on public ignorance of what school boards do, to keep responsibility away from himself.  He screwed the schools over with his contradictory and overreaching orders, and now he seeks to muddy the waters further by blaming the least responsible for what he alone was responsible for.  The TEA is going to say "Pornography is bad" (open question to Glenn Greenwald: should we be giving space for porn  on the shelves of public school libraries?) and that'll be the end of it. The more salient question is how to ban books about the history of Roe v. Wade and books about non-cis gendered people, and about the experienes and problems of being non-white in America, without riling up people who will actually vote to oppose such open and obvious censorship.  The vocal minority is just that a minority.  There are signs they are stirring a sleeping giant, but I'm not putting any money on the outcome of that fight, if there ever is one.

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By “Americans”…

...they mean white Americans.

The only ones who matter.
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Swallowing Camels 🐪

I believe child pornography is bad. I believe racism is bad.  I believe pederasty is bad.

Do I need to allow defenses of those evils to be aired? Should there be an open apologia for adults forcing themselves on children, and using that for the entertainment of others? Is there a defense of racism you wish to raise?

I would not try to prohibit those ideas. Ideas cannot be prohibited. They are immortal, invisible, and bulletproof. I have to give them enough space to present my argument for why they are evil, but I don’t have to give them free rein to be considered valid or even validated. If the views of NAMBLA and white supremacists need to be aired, it is only to provide the best evidence for how evil they are.

Greenways, as usual, is straining at gnats and swallowing camels.
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Monday, November 08, 2021

Slavery Is Our National Original Sin

Dan Patrick urged seniors to die for the good of the economy. Now Elaine Chao says people should sacrifice themselves for the sake of the economy. Is it coincidence that they both sit comfortably at the top of the socioeconomic order? Hardly.

Or that they count the lives of others so cheap? After all, the country was founded on cheap labor. 
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Democrats Need Their Own War On Xmas

Democrats need to be more like Republicans and find somebody to hate on. Sen. Hawley has cornered the unmarried men market (appealing to suburban women because CRT is not gonna last? I dunno.). Democrats and the Squad really need to reach out to these people: Preferably with a butterfly net.  Nikki Haley says we should have a cognitive test for office holders.  With voters like this, why bother?

Let me say this as slowly as I can:  the country is insane right now because we all spent 12-18 months home alone, on-line because we couldn't get out, and the internet is the greatest outrage generator humanity has ever invented.  (If it were only the "vast wasteland" Newton Minnow called TV; it would be an improvement.  Amazing how we take every technology with the promise of vastly improving the human condition and drive it right into the ground almost immediately.  Anyway....).  Steeped and soaking in such bile for so long we have met ourselves in the Twlight Zone, where the people of America corraled so much hate and anger over the civil rights movement (it was the very early '60's; things got much worse) they "vomited it back up" and created endless night over large patches of the country.  It was a metaphor, but the point is we've been here before.  There is nothing new under the sun, or blotting out the sun. for that matter.  But having soaked in that outrage with no outlet for it except to pour it into the internet from whence it returned 10 fold in a feedback loop from hell, we are now reaping the whirlwind having sown so many dragon's teeth.  This too shall pass, but CRT and books in schools have bugger all to do with "real" concerns.  Our real concerns remain fear of a brown planet and the Great American Sense that somebody's is getting something I should be getting, and so "they" aren't entitled to it.  Inflation?  Don't make me laugh.  I remember the inflation of the '70's. The current situation is as comparable as a Cat. 5 hurricane is to a summer shower. Most of us aren't even going to get wet.  Anyone else old enough to remember the vaunted Japanese production style of "on-time" delivery of parts, rather than storing them in a warehouse?  Welcome to the inevitable bursting of that little bubble.

When the stores start running out of toilet paper and chicken meat again, let me know.  Until then, you probably don't need it anyway, and we should all again consider the virtues of the $100 Christmas.  Although maybe the correct term now is $1000 Christmas, and not because the price of milk has gone up lately.  I mean, a trillion dollars doesn't buy what it used to:
Now what's the threshold for when we start talking about real money?
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Huh?

Is Cruz too stupid to know The Babylon Bee is satire? (BBee is The Onion for people who find The Onion too challenging.) Or does he think he’s being satirical and “meta,” as we used to say before Zuckerberg co-opted the term?

Satire killed satire? Methinks he doth not have a clue.

I really think either question gives Cruz too much credit.
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As To A Dog’s Tail

I know why we still say “dial” a phone number.

I remember all the major characters on “Captain Kangaroo, and most of the regular cartoons, too.

I am also old and grey and full of sleep, so I never get asked this question. My wife looks so much younger than me (the difference is 14 months. She looks easily 20 years younger than me.) a co-worker once asked who that “old guy” was he saw her with at lunch on a Saturday.

She might get carded. I won’t.
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Never Take Legal Advice From Twitter

None of this is even vaguely correct.
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