The introduction to this series should be read first. It has the index to all posts in this series.

The previous post discussed two aspects of Yarvin’s first blog post, his rejection of current ideologies and his loathing of democracy. This post describes the ideology he created, formalism.

The goal of formalism

Yarvin starts with the proposition that the only truly significant problem facing humans is violence. The goal of formalism is to rid the planet of violence. Only then can we focus on other problems.

Next to organized human-on-human violence, a good formalist believes, all other problems—Poverty, Global Warming, Moral Decay, etc., etc., etc.—are basically insignificant. Perhaps once we get rid of violence we can worry a little about Moral Decay ….

He means exactly this: until violence is ended, we must focus on one thing, getting rid of it. It’s an engineering problem, not a moral problem. He sets up pacifism as an alternative, and of course pacifism doesn’t solve violence.

He also dismisses the idea of social justice as a solution. He describes social justice as the idea that we should all have an equal share of the limited resources available to us. He says we don’t know how to equalize things, it won’t last, and it isn’t practical. We’d have to start by setting up rules about equality in things, and then take from some to give to others.

Solving violence with rules

Violence is the result of conflict and uncertainty. People are in constant conflict about stuff, but if everyone knows the result of the conflict in advance, there’s no reason to engage in violence. He seems to think that’s true of state-level conflict too: if we knew how a war would turn out, why wouldn’t the losing side surrender, he says. So, the first step is creating rules of ownership.

Formalism says: let’s figure out exactly who has what, now, and give them a fancy little certificate. Let’s not get into who should have what.

The starting place is where we are now. We make a list of everything that can be owned, and whoever has it gets to keep it. Then we can define violence:

Violence, then, is anything that breaks the rule, or replaces it with a different rule. If the rule is clear and everyone follows it, there is no violence.

The United States is a corporation

Formalism says that the US government controls what happens inside the boundaries of the US. It has the power to collect taxes and make rules of behavior, and these powers are property, just like any other property right. The government isn’t going to voluntarily surrender them.

Yarvin tells us that the US government is a corporation, meaning “… it is a formal structure by which a group of individuals agree to act collectively to achieve some result.” In this setting citizens are serfs, actually corporate serfs. I think he sees private corporations as no different from the US government. He explains that the purpose of his exemplar, Microsoft, is to make money for shareholders by selling software.

But he doesn’t see the purpose of the US government. He thinks the government isn’t able to control much.

In fact, if anyone can identify one significant event that has occurred in North America because Bush and not Kerry was elected in 2004, I’d be delighted to hear of it. Because my impression is that basically the President has about as much effect on the actions of the US as the Heavenly Sovereign Emperor, the Divine Mikado, has on the actions of Japan. Which is pretty much none.

In his view, the US government is a poorly functioning corporation with no discernible control mechanism, loaded with assets and flailing around trying to do something for opaque reasons.

Yarvin’s solution

To a formalist, the way to fix the US is to dispense with the ancient mystical horseradish, the corporate prayers and war chants, figure out who owns this monstrosity, and let them decide what in the heck they are going to do with it. I don’t think it’s too crazy to say that all options—including restructuring and liquidation—should be on the table.

Snip

To reformalize, therefore, we need to figure out who has actual power in the US, and assign shares in such a way as to reproduce this distribution as closely as possible. Links omitted.

He suggests that the current power structures be evaluated and shares in the reformalized US be distributed on the basis of the power of each recipient. Corporations have power, and would be shareholders. He cites the New York Times as an example. Perhaps some citizens have power, and might get shares, but that’s not clear. In any event, having divided up the power, we let the people with power decide what to do with the assets they control. The rest of us just stay out of the way.

The new power structures may not see the use for nation-states. He suggests that cities, but not states, perhaps should be “spun off”; pointing to Dubai, Singapore, and Hong Kong as positive examples. He points out that there isn’t any political violence in those city-states because there isn’t any politics.

That seems to be Yarvin’s main point. He thinks politics always leads to violence of some kind, whether it’s the violence of taxation or of limits on personal freedom, or physical violence. Somehow that problem is solved by getting rid of politics and replacing it with system of control by those who hold power now.

Discussion

1. I rearranged the order of the arguments hoping to clarify.

2. One obvious thing about this is the reductionism. Violence is a problem, sure, but we can’t wait for that to be solved before dealing with other problems. Those lesser problems, poverty, climate breakdown, moral decay, are at the root of a lot of the violence.

Another is the casual acquaintance with reality. This post was written ten years after Hong Kong was returned to China, and the latter was encroaching on democracy there. Anyone who has seen Crazy Rich Asians will see the outcome of the structure Yarvin imagines: great for the rich sons and daughters of the rich in Singapor.

3. The purpose of the United States government is set out in the Preamble to the Constitution. Yarvin doesn’t address it.

4. Yarvin takes the side of Walter Lippman in his debate with John Dewey over democracy, and goes even farther. Here’s a short paper describing the debate. Very roughly, Lippman thinks that our civilization is too complex for the ordinary citizen, so we should select experts to handle the complexities and advise the government rather than depend on the wisdom of the masses.

Dewey thinks that citizens should be educated in critical thinking, so they could participate in the discussions on issues that affect them. The people most affected by an issue would constitute a “public” in his parlance. This post gives an introduction to his thinking.

But Dewey had a larger reason for supporting democracy. From the Stanford Encyclopedia of Philosophy:

Dewey views democracy as an ideal of associated life in the sense that as an ideal he thinks that it reconciles the full expression of individual potentialities and the common good. In this sense, democracy sits at the apex of his historicised naturalist account of individuality and community. “From the standpoint of the individual”, as he puts it, democracy “consists in having a responsible share according to capacity in forming and directing the activities of the groups in which one belongs and in participating according to need in the values which the groups sustain”, while “from the standpoint of the groups, it demands liberation of the potentialities of members of a group in harmony with the interests and goods which are common”…. Cites omitted.

Yarvin doesn’t address this debate.  He thinks the problems with democrcy, most of which were laid out by Lippman and Dewey, are so great that the solution is to burn it to the ground. So far he hasn’t identified a view of the individual that would enable him to address Dewey’s view of democracy. instead, he consistently ignores individual citiaens as if we were irrelevant to this discussion.

This introduction to this series should be read first. It has the index to all posts in this series.

Marcy points out that there is no policy in the Trump administration, only destruction, revenge, and palace intrigue. That’s a great start for Curtis Yarvin and the evil shits surrounding Trump, especially the destruction part. This post introduces Curtis Yarvin’s justification for that nihilistic approach.

The first post at The Substack Gray Mirror

Yarvin explains that the Grey Mirror substack is a sandbox for drafting a book. The book is intended to serve as a public policy manual for the leader of a new regime which will replace the current regime in the United States.

Policy is the art of the possible. Today’s possible is relative to an amorphous network of influential stakeholders. Any new idea must first be measured for relevance by its proximity to this meta-institution. The mirror’s abstract prince had no one to please but himself and God. His policy could and must be absolute.

I think the first three sentences are meant as criticism of democracy on the grounds that it spreads power among too many people, making it easy to block or affect policy. The meaning of the last two is clear: the new regime will be a one-man rule, and I do mean man . There will be be a new regime eventually because all regimes fail. And it will be under the control of a single man, because “if you want a completely different government, submitting to one person is the only way to get it.”

His prince has to start from scratch to build his regime. Most of the existing institutions can’t be remodeled to fit with the new regime. That leads to his idiosyncratic use of the term nihilist. His plan is nihilist because “… it’s a plan for building ex nihilo, from nothing.”

The new leader will emerge from the chaos of the deterioration of the existing regime.

From Rome to France to Rwanda, a monarch who emerges unchallenged from one side of a civic conflict does not enforce the civic dominance of his own side, but the civic unity of both sides. If he did otherwise he would be an idiot — which is statistically unlikely. Freezing the civic conflict, cold or hot, tends to be the biggest, quickest win of the whole transition.

There is no explanation for this statement. He goes on to say that the leader is accountable, but he doesn’t tell us how, except that a monarchy is a republic, and has a constitution.

Discussion

1. I’ve rearranged the order in which Yarvin lays out his ideas.

2. I flatly disagree with his statements about Rome, France and Rwanda producing leaders who enforce civil unity of both sides. Rome fell under the sway of emperors and as they degenerated, Rome slowly collapsed. Is he thinking of Napoleon in France? Has he never heard of the restoration of the aristos, or the Commune, or any of the history of the nation in the 19th Century? And Rwanda? Really?

The First Post in Yarvin’s Blog Unqualified Reservations

The first post in Yarvin’s blog is titled A Formalist Manifesto, dated 4/24/2007. It’s long, so I’ll cover it in two posts. In this post, I take up his objections to existing ideologies and his complaints about democracy. In the next I’ll discuss the content of his newly created ideology, formalism.

Current ideologies suck

He doesn’t like progressivism because he thinks its adherents, “,,, the vast majority of writers and thinkers and smart people in general…” are so steeped in it that they can’t see its problems. He doesn’t like conservatism because “… not all conservatives are cretins, but most cretins are conservatives.” The re-inventors of conservatism (the earlier version was destroyed by the “Roosevelt dictatorship”) have to appeal to the cretins, so conservatism is dumb.

He thinks moderates, centrists, independents, and non-political people are responsible for the death and destruction of the 20th Century, and presumably the early 2000s. They act like there’s a fixed “center” but it’s constantly changing. There’s nothing for them to hold onto, no controlling set of beliefs. It doesn’t even count as an ideology.

He thinks highly of libertarianism, but thinks it’s never been successfully implemented, because it’s impractical.

Yarvin’s problem with democracy

Yarvin says that the most serious problem people face is how to interact without violence against persons or property.

One conclusion of formalism is that democracy is—as most writers before the 19th century agreed—an ineffective and destructive system of government. The concept of democracy without politics makes no sense at all, and as we’ve seen, politics and war are a continuum. Democratic politics is best understood as a sort of symbolic violence, like deciding who wins the battle by how many troops they brought.

I think what he’s getting at here is that certain political disagreements can’t be resolved by compromise or live and let live policies. Murder is an example. There can’t be any compromise to the no-murder rule. He seems to think that most issues are like that, as if the regulatory preference for LED lighting over incandescent bulbs leads to violence.

Discussion

1. So far we’ve seen two objections to deomcracy. First, the dispersion of power demanded by democracy leads to unspecified bad things, because it slows or preventss technological improvements. That doesn’t  happen under one-man rule. Second democracy inexorably leads to violence. Yarvin doesn’t offer much support for these claims in the two essays I’ve read. Maybe there’s more ahead.

2. Yarvin’s criticism of progressivism, that its adherents can’t see its problems, seems wrong. I think some of Yarvin’s criticisms of our government have merit, and have been raised by progressives repeatedly.

3. Yarvin ignores our experience with one-man rule, going far back into history. People who have experienced democracy don’t want one-man rule. Like the American Revolutionaries, people want to have a say in their governments.

4. Almost all people want to live in a world free from violence. Violence is fairly low by historical standards in most functioning democracies. Even though we don’t have perfect security, our circumstances allow most of us to seek highe-orderr goals. So far, at least, Yarvin hasn’t engaged any of the complexities of humans of today, just as he hasn’t addressed any of the arguments of the proponents of democracy.

5. Here’s a story. My freshman year at Notre Dame, we were required to take a class in writing. My teacher was Mr. Yeltsin, who seemed to think it beneath him to teach writing to guys studying science and engineering. Mr. Yeltsin always wore a black suit, white shirt, black skinny tie, very much not the fashion in those days.

I was very proud of my first essay, about which I remember nothing except that when it came back, Mr. Yeltsin had written one word diagonally at the top: Jejeune. I had to look it up.

I wish Curtis Yarvin had taken writing from Mr. Yeltsin.

Every bad thing that has happened during this lawless administration can be traced to the execrable decision of John Roberts and the Trump Clique in Trump v. US. That certainly includes the rendition of Kilmar Albrego Garcia to a notorious prison in El Salvador; he’s been moved to another prison there. Trump and his henchmen believe that they can lever that decision to justify their outrageous goals. Step one: claim there’s an emergency. Step two: issue a proclamation. Step Three: everything is now just the energetic, vigorous executive dealing with the emergency.

In this case, the “emergency” is the invasion of the US by gangs from Venezuela under the control of an evil dictator. Step two is the invocation of the Alien Enemies Act. Step three is the sudden rendition of several hundred people to foreign prisons, denial of due process required by the Constitution and laws of the US, demands that the Department of Justice defend the action without regard to ethical obligations of all lawyers, and refusal to comply with Court orders. Albrego Garcia isn’t a member of the evil gang but so what? Mistakes happen when you’re being vigorous and energetic.

When Roberts and the Trump Clique saved Trump from accountability in Trump v. US, they never imagined that he might turn on them and on the judiciary so ferociously that the wimp Roberts was forced to issue a limp statement defending the rule of law and the judiciary.

Harvie Wilkinson of the Fourth Circuit is trying to show Roberts his error. In his order slapping down the government’s attempt to avoid accountability for its illegal abduction of Abrego Garcia. Wilkinson writes:

“Energy in the [E]xecutive” is much to be respected. FEDERALIST NO. 70, at 423 (1789) (Alexander Hamilton) (Clinton Rossiter ed., 1961). It can rescue government from its lassitude and recalibrate imbalances too long left unexamined. The knowledge that executive energy is a perishable quality understandably breeds impatience with the courts. Courts, in turn, are frequently attuned to caution and are often uneasy with the Executive Branch’s breakneck pace.

And the differences do not end there. The Executive is inherently focused upon ends; the Judiciary much more so upon means. Ends are bestowed on the Executive by electoral outcomes. Means are entrusted to all of government, but most especially to the Judiciary by the Constitution itself.

For Wilkinson this is prelude to a discussion of the need for respect between the executive and the judiciary, for which he makes an extraordinary plea.

The reference to Federalist No. 70 is a polite call-back to Trump v. US:

The Framers “sought to encourage energetic, vigorous, decisive, and speedy execution of the laws by placing in the hands of a single, constitutionally indispensable, individual the ultimate authority that, in respect to the other branches, the Constitution divides among many.” Clinton v. Jones, 520 U. S. 681, 712 (1997) (Breyer, J., concurring in judgment). They “deemed an energetic executive essential to ‘the protection of the community against foreign attacks,’ ‘the steady administration of the laws,’ ‘the protection of property,’ and ‘the security of liberty.’ ” Seila Law, 591 U. S., at 223–224 (quoting The Federalist No. 70, p. 471 (J. Cooke ed. 1961) (A. Hamilton)). The purpose of a “vigorous” and “energetic” Executive, they thought, was to ensure “good government,” for a “feeble executive implies a feeble execution of the government.” Id., at 471–472.

Roberts, whether out of naiveté or ideological fervor, in substance removed the possibility of judicial control over egregious violations of law. Sonia Sotomayor, writing for the minority, pointed to the mendacity of Roberts’ citation of Federalist No. 70:

The majority’s single-minded fixation on the President’s need for boldness and dispatch ignores the countervailing need for accountability and restraint. The Framers were not so single-minded. In the Federalist Papers, after “endeavor[ing] to show” that the Executive designed by the Constitution “combines ,,, all the requisites to energy,” Alexander Hamilton asked a separate, equally important question: “Does it also combine the requisites to safety, in republican sense, a due dependence on the people, a due responsibility?” The Federalist No. 77, p. 507 (J. Harvard Library ed. 2009). The answer then was yes, based in part upon the President’s vulnerability to “prosecution in the common course of law.” Ibid. The answer after today is no.

Reading Wilkinson in this light shows how he is telling Roberts and the Trump Clique they screwed up and must remedy that by asserting the requirement that energy be restrained and explaining how that restraint is to be enforced. In her dissent in Trump v. US, Ketanji Brown Jackson explains what the idiot majority missed:

Here, I will highlight just two observations about the results … . First, the Court has unilaterally altered the balance of power between the three coordinate branches of our Government as it relates to the Rule of Law, aggrandizing power in the Judiciary and the Executive, to the detriment of Congress. Second, the majority … undermines the constraints of the law as a deterrent for future Presidents who might otherwise abuse their power, to the detriment of us all.

Wilkinson agrees with Jackson at least on the first point. The executive is focused on ends, he says, while the judiciary is focused on means to the end. He says means are set by all three branches of government. He thinks the judiciary is primarily responsible for insuring that the executive is limited to the means provided by law, which leads him to put the judiciary first. But he implicitly acknowledges the role of the legislature in setting  allowable means through laws. This too follows from both Federalist Nos. 70 and 77, which emphasize the power of the people acting through popularly elected legislatures as the protector of the safety of the people from tyrants.

Others have pointed out that Wilkinson is a conservative, and a respected jurist. His opinion should be read as a direct challenge from Roberts’ own ideological team to the foolish decision in Trump v. US. With the astonishing action of SCOTUS in the wee hours today, that message may be starting to sink in for some members of the Trump Clique.

Posts in this series

The Beginnings Of Curtis Yarvin
Introduction To Yarvin’s Formalism

Trump acts on his stupid ideas, and on the foolish chatter of whatever loon has his ear. He and his courtiers and henchmen recite crackpot theories to justify working for their own ends, with no pretense of oversight by Trump or Republican legislators.

Some of these weirdo theories, like the tariff gibberish and Christian Nationalism, are well-known. They’ve been discussed in progressive circles for some time, and are occasionally acknowledged in the billionaire media. What I did not know, and what was rarely reported in the media I read, was the influence of a group of anti-democracy advocates.

Recently I began to read about Curtis Yarvin. Heather Cox Richardson mentioned him in one of her Letters To An American, and commenter TruthBtold linked to this substack reporting on Yarvin.  Here’s an article in Commonweal, Yarvin’s Case Against Democracy.

In 2012 Yarvin gave a speech titled How To Reboot The US Government. He gave more speeches and interviews on the subject and drew the attention of rich techbros and right-wing politicians like J.D. Vance. It looks like Elon Musk used Yarvin’s ideas first to remake Twitter as a hang-out for creeps, and then as a template for destroying our govenrment from the inside.

Yarvin claims that democracy has failed and that the only way forward is to get rid of it and replace it with a dictatorship, or a monarchy. It’s a view shared by a lot of people on the far right, and for different reasons by the same filthy rich thugs who’ve been wrecking our country out of hatred for the New Deal and all things that make life better for working people. I’ll be looking into Yarvin’s writings in my next series.

Background

This stuff is wild. To orient myself, I read a chapter written by Joshua Tait in a book, Key Thinkers of the Radical Right: Behind the New Threat to Liberal Democracy. The book is supposedly available through your library. Tait focuses on a blog Yarvin wrote under the name Mencius Moldbug, Unqualified Reservations.  He gives an introduction to Yarvin’s theory of neoreaction, and his rejection of democracy.

Neoreaction’s basic assumption is that humans desire power. Interpreting democracy through this framework, Moldbug claims that democracy’s appeal is that it disperses power widely, indulging the mass desire for useless fragments of power. Since power-seeking is pervasive, society trends toward greater division of power and a concomitant erosion of order. Democracy is a “dangerous, malignant form of government which tends to degenerate, sometimes slowly and sometimes with shocking, gut-wrenching speed, into tyranny and chaos.”

Trump and his henchmen don’t acknowledge the anti-democratic aspect of Yarvin’s thought, at least not so far, unless you consider Trump’s third-term garbage. They just follow his plan for destroying the institutions that diffuse power; and work at concentrating power into the hands of Musk and Trump. Yarvin’s views  can be seen as justifying the unitary executive theory, and for presidential kingship, as contemplated by John Roberts and his anti-democratic colleagues in Trump v. US.

In his blog Yarvin traces out the development of his theories of history, economics and other matters. The blog ran from 2007 to 2014. He has a substack, Gray Mirror, which began in May 2020 (after Tait’s article) where he posted drafts of his book Gray Mirror: Fascicle I: Disturbance, published January 2025. The title is Yarvin trolling: fascicle is close to fascist, but means something else. I’m reluctant to buy the book so I plan to read from the two online sources first. He shows up on other social media sites, but I’m not going there.

I plan to focus on the anti-democracy material and his views of human nature. We’ll see how that holds up.

Defending Democracy

I won’t defend democracy here. I follow Americans like John Dewey and Richard Rorty. See, e.g. Rorty’s Achieving Our Country. My rationale for defending democracy is my understanding of human nature, which I discussed in my series on individuality.

But I also think that we as a nation have for a long time regarded democracy as background for our lives. We see it as a game we watch on TV. We yell at politicians as we would yell at referees. We don’t think of democracy as making any demands on us, much less as something that requires our constant maintenance and improvement.

Caveat

It’s very difficult to write about material with which you fundamentally disagree. There’s a strong tendency to minimize any good points, and to mock rather than try to understand.

I plan to be very careful about separating Yarvin’s words from my thoughts on how to understand what he’s saying, and to try to indicate where I’m having trouble following an argument, so that readers can check my thinking. That should help with the bias problem.

It’s important to note that Yarvin isn’t some Qanon weirdo cranking out conspiracies. I assume that he’s read the material he cites, and that he has tried to be intellectually honest. That distinguishes him from craven ideologues like the SCOTUS right-wingers and from lazy hacks like David Brooks.

Final thought

Yarvin and the filthy rich idiots he influences are dangerously wrong, wrong in a deeply fundamental way. They think they know what’s best. Not what’s best for you and your family and community. They think they know what’s best for the future of the human race.

The Trump mob has a bunch of crackpot theories. One of these, beloved of techbros with Ketamine-plasticized brains, comes from Guillaume Verdon, a 32 year physicist. This Wired article is primarily about Verdon’s alternative to quantum computing, but it gives an introduction to Verdon’s big theory of “effective acceleration”, or e/acc.

Will Knight, the author of the Wired article, gives this bit of background:

By the 1990s, a British philosopher named Nick Land was advocating for a real accelerationist movement that would unshackle capitalism from the restraints imposed by politicians and welcome the technological and social destruction and renewal this would bring. Accelerationist ideas are echoed by other alt-right thinkers, including the influential blogger Curtis Yarvin, who argues that Western democracy is a bust and ought to be replaced.

Let’s take a look at Verdon’s manifesto.

The thermodynamics of the origin of life

Verdon starts by asserting that life emerges as “matter reconfigures itself such as to extract energy and utility from its environment such as to serve towards the preservation and replication of its unique phase of matter.” He links to this article by Katherine Taylor  about a theory created by John England.

Current views of the origins of life begin with a primordial soup of raw chemicals in bodies of water with external sources of energy like sunshine and lightening, and constant motion. England’s theory explains how that system can lead to early organized forms of matter. The article explains England’s theory, starting with the words “At the heart of England’s idea…..”

At the risk of oversimplification, the Second Law of Thermodynamics says that entropy increases over time. In certain systems, entropy can decrease in clumps of matter that absorb and use energy and emit energy in a less concentrated form, which is to say at higher levels of entropy. Entropy increases in the overall system, but decreases in a small part of the system.

A plant, for example, absorbs extremely energetic sunlight, uses it to build sugars, and ejects infrared light, a much less concentrated form of energy. The overall entropy of the universe increases during photosynthesis as the sunlight dissipates, even as the plant prevents itself from decaying by maintaining an orderly internal structure.

Taylor’s article suggests that this process, called dissipative-driven adaptation of matter, lies at the heart of all evolution, which may or may not be England’s view. Either way, the article acknowledges there are countless other factors that influence the outcomes.

Verdon calls this process dissipative adaptation. He says it “…tells us that the universe exponentially favors (in terms of probability of existence/occurrence) futures where matter has adapted itself to capture more free energy and convert it to more entropy.”

First Interlude

Notice that Verdon uses phrases like “matter reconfigures itself” and “the universe favors”. These phrases could be read to suggest that the universe and the matter it contains have some sort of drive or even a purpose. In this setting, words are used metaphorically, to describe England’s equations. We don’t use the words to reason about the implications of mathematical language, because you can’t safely reason from a metaphor.

Here’s an example. When I was a kid, we had an encyclopedia with a representation of the Bohr model of an atom. It was a map of the US, with a basketball in the center of the country and a couple of ping-pong balls on the coasts of California and Virginia. Someone asked why if there was so much space between the nucleus and the electrons you couldn’t squash the atom into a tighter space. That’s an example of reasoning with a metaphor. Don’t do that.

Also note that Verdon claims that this theory is about extracting “utility” as well as energy. No it isn’t.

Accelerating Evolution

So, the first part of Verdon’s manifesto is consistent with current evolutionary theory, apart from the utility thing. Then Verdon tells us:

Intelligence emerges as a smaller timescale specialization of this adaptation principle; it allows life to identify patterns in the environment which have utility towards acquiring more resources to procreate and/or maintain said intelligent life form.

We’ve gone from absorbing free energy to, I suppose, catching prey. But this view of intelligence isn’t consistent with Darwinian theory in its current form. The range of evolutionary pressures is much broader than simple identifying patterns that represent energy.

Verdon goes on to say that consciousness is the natural limit of intelligence in the individual. So much for people. Then there’s meta-consciousness in the form of organized groups of humans, like corporations and governments and states. In a capitalist system, these “compete for resources” with other meta-organizations.

Second Interlude

Well, that’s nonsense. Elon Musk isn’t competing for resources. He took control of the government and is using it to grab resources from all of us to use as he sees fit, without regard to the impact on other people. Other capitalist organizations do the same thing, though usually with less law-breaking.

As an example, consider renewable energy. In Verdon’s theory, everyone should be grabbing the free energy of renewable sources like the sun. It’s now mostly cheaper than fossil fuels, and is more sustainable. But the giant oil companies have fought it, lied about it, and pushed for more pollution, with the aid of complicit politicians. So if the universe favors free energy, why does this happen?

Or consider the LED bulb. These marvels use far less energy than incandescent bulbs. But the shriekers on the right wing erupted in an apoplectic fit  when the government began to insist on their use. Why? It has nothing to do with free energy and dissipative adaptation, that’s certain.

Capitalism is a form of intelligence

Verdon writes:

Hierarchies of information propagation and control are part of the civilizational intelligence; these should be dynamically adapting at all organisational scales and on various time scales, in order to be optimal at identifying and capturing civilizational utility.

Has this guy never heard of intellectual property? That’s part of the capitalist system, and it works against this bullet point, if the bullet point has any meaning outside Verdon’s head. And who gets to decide what “civilizational utility” is?

Verdon says that capitalism is a form of intelligence. The explanation is that it “dynamically morphs” civilization to grab all the utility/energy out there. In his telling making the world safe for profits is a marker for intelligence.

E/ACC has a goal

The goal of e/acc is to recognize this “multi-scale adaptive principle” and accelerate it. That is accomplished by “… letting the intelligent meta-organism system dynamically adapt by itself to new environmental variables whenever they present themselves.”Apparently the universe favors profits.

We already do that. We let corporations, those paragons of intelligent meta-organisms, dump tens of thousands of chemicals into our environment. Turns out a bunch of them are poisons that interfere with our endocrine systems, kill bees and pollute the Gulf of Mexico. That doesn’t seem at all intelligent.

He says that e/acc wants to follow the will of the universe, presumably referring to that free energy/utility/resource/(profit?) thing that keeps morphing in this screed. In other words, he wands to accelerate the transition from the current state of entropy to a higher state of entropy. But why? He doesn’t say.

How do we accelerate?

Deregulation. Low taxes. Freedom for the Techbros. There is no price too high to pay for these goals, including human lives.

Discussion

1. I rarely read the writings of the people Trumpians call intellectuals, mostly because it’s dumb and badly written. Sadly these yahoos have have power now, so it seems like someone should.

2. Verdon doesn’t explain how e/acc will help us be better humans, or live better lives. He’s not interested in this world or the lives of people who live in it. He only cares about the next world he’s trying to imagine.

3. Hannah Arendt says that the Nazis and the Communists claimed to be following and accelerating a scientific program. For the Nazis, it was the laws of nature, and for the Communists it was the laws of history as discovered by Marx. Both programs were said to lead inexorably to the perfection of human beings and human society.

Verdon wants to do the same thing with his very scientific program.

That was one of the chants at the #TeslaTakedown event I attended in Chicago last Saturday. But selling your Tesla car is not easy. There isn’t much of a market for used Teslas in this area. There’s a similar problem in Boston. And Seattle. It seems to be a world-wide problem. Perhaps Trump will single-handedly create a market for used Teslas among his cult. That would be great, since only a few years ago they were crazy angry about libtards driving electric vehicles.

If you want to sell your Tesla stock, that’s easy. There’s a robust market in the stock. Over 110 million shares traded on March 17. But there is the problem of figuring out how much $TSLA you own, According to the 2024 Tesla Proxy Statement, after Musk, the two largest holders are Vanguard and Black Rock, both huge in investment funds and pension management. If you have a 401k, an IRA, or a pension plan, you most likely own at least a little of the stock of Tesla. It has the 9th highest market capitalization of US stocks,

This site says there are 517 ETFs that hold stock in Tesla.  You probably wouldn’t expect Vanguard Consumer Discretionary ETF to hold Tesla stock. Its largest holding is Amazon at 23%, and it includes MacDonalds, Chipotle, Loews, Booking.com, and similar stocks. The second largest holding is Tesla, at 17%. I do not think of electric vehicles as a consumer discretionary expenditure.

I searched for ETFs with low Tesla holdings for the past year, and almost all of the results were funds with lots of Tesla. There are, of course, investment vehicles that don’t hold Tesla. You could look at industry specific funds like ETFs investing in Pharma or Health Care. But you’d be wise to check the actual holdings. I found some on this site where you can search for several sectors.

If you search for Tesla stock you’ll find plenty of people saying it’s fairly valued, or even undervalued. The Yahoo Finance site says the one year target price is $343. Here’s one that’s not so rosy. if you want to see for yourself, here’s a link to the 2024 10-K. .

Note that the people talking about dumping their Tesla cars don’t take about the car itself, in fact most of them like their Teslas. They’re selling, even at a loss, for other reasons. In the same way, the decision to sell Tesla stock doesn’t necessarily mean there aren’t good reasons to hold it. That decision may nave nothing to do with the fundamentals of Tesla, or its businesses.

The Proxy Statement says that Elon Musk has pledged about 1/3 of his holdings as collateral for loans, probably including loans for the purchase of Twitter.  It seems plausible that the lenders will demand additional collateral or even call the loans if the price sinks dramatically. For example, the current PE Ratio is about 116 at market close March 17. If it were selling at the same PE ratio as the information technology sector, approximately 35 at market close March 17, the price would drop from the current $240 to about $75.

Search for the term Tesla meme stock. It’s possible the chanters have a point.

Index to posts in this series

A stupid despot may constrain his slaves with iron chains; but a true politician binds them even more strongly by the chain of their own ideas; it is at the stable point of reason that he secures the end of the chain; this link is all the stronger in that we do not know of what it is made and we believe it to be our own work; despair and time eat away the bonds of iron and steel, but they are powerless against the habitual union of ideas, they can only tighten it still more; and on the soft fibres of the brain is founded the unshakable base of the soundest of Empires’. M. Servan, Le Soldat Citoyen, 1780, quoted in Foucault, Michel. Discipline and Punish: The Birth of the Prison, Pp. 102-103 Kindle Edition.

 

 

[The attitudes of Trump voters and non-voters] are created by their experiences in their environment. The people shaping those environment are the truly contemptible shitheads. Me.

The series was motivated by the idea that the books I’ve read over the years and the writing and thinking I’ve done here might give me some insight into Trump voters. Not the racists, the Christian Nationalists, the misogynysts, the homophobes, the Nazis, the nihilists and the other freaks, their motivation is obvious. It’s the regular folk who think they’re decent people I want to understand.

I had a tentative idea, an image of Trump voters trooping to the polls like so many soldiers. That led me to think about the nature of individuality, because soldiers surrender large parts of their nature to achieve what they think is a higher good.

I suppose others might see Harris voters the same way. That’s what the Repub operatives say. But it’s stupid. There is no information bubble telling regular Democrats what to think. The Democratic Party isn’t capable of telling anyone how to think about the world around us and the problems we face.

Democratic voters have to work out a view of reality based on a range of sources, from Billionaire Media to blogs to social media, teachers, friends, family, books etc. There are strategies for that, but very few, if any, just take the word of a tiny group of professionals, especially Democratic politicians, for anything.

Trump voters are immersed in the world view created and maintained by creepy billionaire right-wing donors, ratfuckers, enablers in the business and legal communities, grifters and loons. We see it all the time. We listen to our parents who have crossed the line into Foxworld. We hear it from cousins convinced the MMR vaccine is dangerous. We see it in stories like that of Ryleigh Cooper.

All of these filthy rich actors and their enablers are trying to kill our political community. They use words to veil intentions and their deeds are brutal. See The Human Condition by Hannah Arendt, p. 200, Kindle Edition. They’re succeeding at destroying, but they have no replacement and people are suffering. Ask Ryleigh Cooper and her family.

I don’t think there’s a single explanation for why people voted for Trump. That was a foolish idea. No matter the “reason” they give, it’s incomprehensible to me that anyone would vote for this deeply repulsive creep.

Conclusion to series

Immanuel Kant wrote a four-page essay titled Answer To The Question: What Is Enlightenment? In 1784. Here’s a readable free translation by Ted Humphrey, made available by the New York City Public Library. Here are the opening paragraphs.

1. Enlightenment is man’s emergence from his self-imposed immaturity.Immaturity is the inability to use one’s understanding without guidance from another. This immaturity is self-imposed when its cause lies not in lack of understanding, but in lack of resolve and courage to use it without guidance from another. Sapere Aude! “Have courage to use your own understanding!”–that is the motto of enlightenment.

2. Laziness and cowardice are the reasons why so great a proportion of men, long after nature has released them from alien guidance …nonetheless gladly remain in lifelong immaturity, and why it is so easy for others to establish themselves as their guardians.

It is so easy to be immature. If I have a book to serve as my understanding, a pastor to serve as my conscience, a physician to determine my diet for me, and so on, I need not exert myself at all. I need not think, if only I can pay: others will readily undertake the irksome work for me.

The guardians who have so benevolently taken over the supervision of men have carefully seen to it that the far greatest part of them (including the entire fair sex) regard taking the step to maturity as very dangerous, not to mention difficult.

Having first made their domestic livestock dumb, and having carefully made sure that these docile creatures will not take a single step without the go-cart to which they are harnessed, these guardians then show them the danger that threatens them, should they attempt to walk alone. Now this danger is not actually so great, for after falling a few times they would in the end certainly learn to walk; but an example of this kind makes men timid and usually frightens them out of all further attempts. Fn omitted; my formatting.

Side notes: Guidance probably means something more like instruction or direction. The word go-cart is probably better translated as something like pony-cart. I left the misogyny in, but should I have deleted it?

Kant’s guardians are a big part of the problem, just as Servan, Kant, Arendt, Bourdieu, Foucault, and many others have said. But there’s nothing to prevent any of the ridden from thinking for themselves. Nothing, says Kant, nothing but laziness and cowardice. It’s too much trouble. I might get it wrong. I don’t want to get cross-ways with my neighbor.

I’m not saying everyone has to spend hours and weeks and years studying things. But. Billions of people have taken the Covid vaccines. The incidence of death is nearly zero. The incidence of serious complications isn’t much greater. But lots of people listen to loons on social media. They don’t perform a single-step thought process to see that it’s safer to take the vaccine than risk illness and death from the disease. I think that’s what Kant means when he tells us to use our own understanding.

The billionaires and their cronies who created this bubble of non-thought, are the guardians Kant is talking about. They are riding their herd just as he said. and it’s tough to tell one individual in a herd from another.

Enough. I am a child of the Enlightenment. I’ll leave this series with this aphorism from David Hume, an Enlightenment philosopher. Here’s a link for context.

A wise man, therefore, proportions his belief to the evidence.

Lawyers are very good at making up reasons why their clients are right, regardless of the nature of the dispute. And they’re very good at explaining why applicable laws and cases do or don’t apply, whichever serves the client’s interests. In this post I look at the ethical requirement related to purely legal arguments.

Rules

All lawyers are bound by the ethical obligations set by the state in which they are licensed. Generally these are a version of the ABA Model Rules Of Professional Conduct.  Here’s the text of Rule 3.1:

A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established.

In civil cases lawyers are bound by FRCP 11, which requires the signature of an attorney to every paper filed in court. Here’s the relevant part:

(b) Representations to the Court. By presenting to the court a pleading, written motion, or other paper—whether by signing, filing, submitting, or later advocating it—an attorney or unrepresented party certifies that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:

(1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;

(2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;

(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; ….

Government lawyers have greater ethical obligations in both criminal and civil cases. Here’s the first part of Comment 7 to Rule 8.4:

[7] Lawyers holding public office assume legal responsibilities going beyond those of other citizens. A lawyer’s abuse of public office can suggest an inability to fulfill the professional role of lawyers. ,..

As you can see, a violation of FRCP 11 is almost certainly a violation of Rule 3.1. Every state has a disciplinary authority empowered to enforce the rules of conduct. Lawyers have a duty to report known violations of the rules to the relevant authority. Rule 8.3.

Example: Birthright Citizenship

There are two cases on birthright citizenship, one in Massachusetts, discussed here and one in Seattle, discussed here. These cases are based solely on the Constitution; there are no disputed facts. This post focuses on the latter

Here’s an exchange between Judge Coughenour and Brett Shumate, a lawyer for the DoJ in the Seattle case:

“In your opinion is this executive order constitutional?” he asked.

Said Shumate, “It absolutely is.”

“Frankly, I have difficulty understanding how a member of the bar could state unequivocally that this is a constitutional order,” Coughenour said. “It just boggles my mind.”

I would have said “the position of the government is that the EO is constitutional.” If pushed, I would repeat whatever is in the brief. This was the tactic used by Antoinette Bacon and Edward Sullivan in their motion to dismiss the Eric Adams prosecution, and from my experience, it’s common for government lawyers to do things like this. But Shumate is all in on this Trump EO.

Shumate’s brief includes a number of procedural arguments about standing and similar matters which I won’t discuss.

Discussion of the merits begins on page 11. The first argument is about the term “jurisdiction” used in the 14th Amendment. The District Courts in both cases reject this argument based on Wong Kim Ark and the ordinary meaning of jurisdiction. Any person in the US is subject to the jurisdiction of the US, regardless of how or why they’re here with exceptions for diplomats. For example, if you go to Paris, don’t take weed even if it’s legal in your state. It isn’t legal in France, and if the gendarmes catch you you’ll learn about jurisdiction.

The leading case is Wong Ark Kim v. US, (1898) Wong was the son of Chinese citizens. They were living in the US when he was born, but went back to China without him 17 years later. He went to visit them and returned without incident. On his second visit he was barred from entry and filed this habeas corpus petition. The decision is long and complex, delving into the history of citizenship by birth and citing cases I doubt were in my law school library. It seems to me that the central holding is this:

But the opening words, ‘All persons born,’ are general, not to say universal, restricted only by place and jurisdiction, and not by color or race, as was clearly recognized in all the opinions delivered in the Slaughter House Cases, above cited.

Unfortunately the question presented to the Court included statements about the domicile and residence of Wong’s parents, and the final statement of the holding repeats that language. That gives Shumate a foothold to argue that domicile of the parents is relevant and should be read into the language of the 14th Amendment. There is a small group of lawyers making that argument; it’s like watching the formulation of an argument by a committee of pre-law students.

The nearly unanimous consensus is that Shumate is completely wrong. Here’s a recent example.

Application of Rules

Both Rule 3.1 and FRCP 11 prohibit lawyers from raising frivolous legal issues. Both allow for “good faith” arguments for reversal of existing case law. Public officials like Shumate are held to a higher standard. There is no definition of “frivolous”.

In this case, Shumate has two good faith arguments. First is his argument that the question raised and the holding in Wong Kim Ark reference the domicile of the parents, so the case doesn’t control cases where there is no domicile. This creates two further problems. First, the decision isn’t at all clear on the meaning of domicile. Second, the term domicile is not used in the 14th Amendment. Generally when a law is plain on its face there is no need to look further. Still, it’s not frivolous.

The second plausible argument is that there’s a dissent in Wong Kim Ark on behalf of two members of the Court. That is grounds for Shumate to argue for a reversal of the case. I didn’t read that dissent, so I have no opinion about it.  Its mere existence is enough to protect Shumate.

There are two other considerations. This is a motion for a TRO, not a fully briefed and considered set of pleadings. More latitude should be allowed in such circumstances. Also this is the president’s position, and in the past that has carried some weight, giving cover to the DoJ lawyers. I think the second should be disregarded in Trump’s case.

For these reasons, I don’t think a claim of ethical violations would succeed at this point. I do think that continuing to push the domicile argument, which seems extremely weak, especially on appeal, might raise concerns.

The lesson

I can’t think of a better case for sanctions purely based solely on a frivolous legal theory. The language of the 14th Amendment is clear and unambiguous. The leading precedent has stood for 125 years, through times of far worse xenophobia than ours, but Congress has not acted in any way to affect the decision. It has not been controversial until very recently, and there is no meaningful academic support for change.

That tells me that bringing a disciplinary case under Rule 3.1 or a demand for sanctions under FRCP 11 on a purely legal question is not likely to succeed. The ability and willingness of today’s lawyers to create arguments out of nothing, and the willingness of the Trump Protection Squad (Roberts, Thomas, Alito, Kavanaugh, Gorsuch, and Barrett) to discard precedent on ridiculous grounds, should be protection.

I will say, however, that a lawyer who refused on ethical grounds to work on this case would be fully justified. Of course, they’d be fired.

Emil Bove III is a bully. There’s only one way to deeal with a bully: fight back harder.

Consider Bove’s treatment of the public integrity section lawyers as part of his campaign to dismiss the prosecution of Eric Adams. In the end, two lawyers and Bove himself signed the pleading. The motion says that Bove made the decision himself; his signature is an admission of that fact. Now the matter goes to District Court Judge Dale Ho. Marcy has a good description of the current status.

What are Judge Ho’s options? One suggestion made by three former prosecutors is the appointment of a special counsel to examine the actions of the DoJ with respect the dismissal. They suggest that the special counsel could recommend several courses of action, including disciplinary proceedings. The Immigration and Nationality Law Committee of the New York City Bar Association echoes this recommendation.

Disciplinary proceedings

Lawyers are subject to ethical obligations in their handling of legal matters. I don’t know where the lawyers involved in this decision are licensed, so I don’t know the particulars of the rules or proceedings that would apply to them. In general, most states have adopted a version of the ABA Rules Of Professional Conduct (“ABA Rules”).

The Federal Rules Of Criminal Procedure  do not have a rule equivalent to FRCP 11, discussed here. ABA Rule 3.3 is  similar to Rule 11. It prohibits lawyers from making false statements of fact or law to the court or to offer evidence known to be false. Here’s the text of ABA Rule 3.3(b):

(b) A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.

ABA Rule 8.4  is directly implicated in this case. Here’s the relevant text:

It is professional misconduct for a lawyer to:

(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;

(b) commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects;

(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation; ….

The history of ABA Rule 8.4 can be found in this opinion of the Standing Committee On Ethics and Professional Responsibility from 1992. The predecessor of this rule is DR 7-105(a), which provided “A lawyer shall not present, participate in presenting, or threaten to present criminal charges solely to obtain an advantage in a civil matter.” New York did not delete DR 7-105(a) when it updated its Rules of Professional Conduct. Footnote 2 contains a partial list of other states that kept the old rule.

There’s a lot of speculation floating around suggesting there’s a hidden agreement between Adams and Trump or his henchmen about immigration enforcement by NYC officials and/or something else. We can’t know all the facts. It’s notable that so many career DoJ officials resigned rather than dismiss the case, but that’s not conclusive. Tom Homan, Trump’s Border Czar, spouted words that some saw as confirming the quid pro quo, but he denied that later.  In any event, the dismissal without prejudice seems to give the DoJ the ability to force Adams to act as Trump wishes or face revival of the charges. Here’s an example:

“Eric Adams no longer works for New Yorkers. He works for Donald Trump. Period,” state Sen. Zellnor Myrie, a mayoral candidate, said at a news conference. “Mayor Eric Adams will be under the thumb and control under Donald Trump until November.”

Let’s look at that possibility. It certainly looks like the use of the threat of criminal prosecution to achieve the Trump Administration’s desires in utterly unrelated civil matters. That’s an obvious violation of the provisions of DR 7-105(a) as in effect in New York, save for the word “solely”.

Also, in general, threatening criminal action to obtain something of value is a crime, the crime of extortion. The elements of that crime are

1. A threat to a person
2. For the purpose of gaining some material end
3. With the statutory mens rea,

The threat can be a threat of criminal prosecution, as every lawyer will tell you.

If a case like this one came before a Disciplinary Board under the equivalent of DR 7-105(a) the burden would be on the movant to show that there was no other lawful purpose for the dismissal without prejudice than to force Eric Adams to act as Trump or his henchmen want him to. Bove claims that the investigation will continue, although the case is ready for trial as it stands. I’d guess the facts are enough to shift the burden of proof to the target to show that there is a need for more investigation or some other lawful purpose.

If the case is under ABA Rule 8.4, the burden is on the movant to show that the target committed the crime of extortion, or that the target used others to achieve that result, or that the target lied about the facts or the relevant law.

It may be that the target’s position as a public official increases the likelihood that discipline is appropriate. Here’s Comment 7 to ABA Rule 8.4:

Lawyers holding public office assume legal responsibilities going beyond those of other citizens. A lawyer’s abuse of public office can suggest an inability to fulfill the professional role of lawyers. The same is true of abuse of positions of private trust such as trustee, executor, administrator, guardian, agent and officer, director or manager of a corporation or other organization.

What about the other lawyers? Whether or not they resigned, they are covered by ABA Rule 3.3(b) above. All DoJ lawyers represent the US, so it may be that they or other DoJ lawyers have obligations under that rule.

Discussion

1. John Eastman was deeply involved in Trump’s schemes to stay in office after being beaten by Joe Biden in 2020. A group of lawyers and judges filed a complaint with the State Bar of California asking that his law license be revoked. That matter was finally resolved in March 2024, when Eastman was disbarred. That’s too slow. If bar discipline is to have any meaning, it must be rapid, especially in the face of this lawless administration.

2. The advantage of bar discipline is that Trump and his henchmen can’t do anything about it. Admission to the bar is solely the responsibility of the Supreme Court of each state. The federal government has no role whatsoever in the matter, and Trump has no legal or financial leverage.

3. The threat of loss of his law license may not affect Bove, but it will haunt every career DoJ lawyer. Who knows, it might even affect the decisions of Trump-addled lawyers who might think of joining the DoJ.

4. DoJ lawyers have forfeited any claim to judicial respect. They should be shamed by every court. Here’s a delightful example. Here’s another from Judge Coughenour in the Seattle birthright citizenship case:

“In your opinion is this executive order constitutional?” he asked.

Said Shumate, “It absolutely is.”

“Frankly, I have difficulty understanding how a member of the bar could state unequivocally that this is a constitutional order,” Coughenour said. “It just boggles my mind.”

DoJ lawyers should not be forced to give up their self-respect just to hold on to a job.

Trump and his henchmen have declared war on the rule of law. Defending it will require aggressive responses. It’s time for heavy use of Rule 11

Here are the relevant provisions of Rule 11:

(b) Representations to the Court. By presenting to the court a pleading, written motion, or other paper—whether by signing, filing, submitting, or later advocating it—an attorney or unrepresented party certifies that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:

(1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;

(2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;

(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and

(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.

(c) Sanctions.

snip

(4) Nature of a Sanction. A sanction imposed under this rule must be limited to what suffices to deter repetition of the conduct or comparable conduct by others similarly situated. The sanction may include nonmonetary directives; an order to pay a penalty into court; or, if imposed on motion and warranted for effective deterrence, an order directing payment to the movant of part or all of the reasonable attorney’s fees and other expenses directly resulting from the violation. …

Every pleading from the government should be closely examined. If there are reasonable grounds, the affected parties should immediately demand preservation of records proving compliance with Rule 11(b).

Example: Illinois Sanctuary City laws

DoJ sued Illinois, Cook County, and Chicago over our sanctuary city laws and the policies adopted pursuant to them. (Full disclosure: I am a Chicagoan.) The suit claims that the laws were intended to and do interfere with the ability of the feds to enforce immigration laws. There is a lot of bluster about this, but there isn’t a single specific example of active interference with the feds. There are no specific allegations of damage done by enactment or compliance with the laws and policies.

The complaint lays out the provisions of Chicago’s policy in ¶¶ 41-50. Then:

51. Upon information and belief, Chicago law enforcement officials have been chilled by these prohibitions.

52. Upon information and belief, Chicago law enforcement officials are also confused by the restrictions on them and thus do not provide even the permissible cooperation out of fear of punishment.

The defendants should demand preservation of all records showing that the lawyers who filed this suit had cause to believe that there is evidentiary support for these allegations, or that it is likely that discovery would uncover evidentiary support.

But, even if there is such chilling or confusion, it doesn’t prove the case alleged by the feds. For example, it is likely the case that the feds can seek clarification of the rules from the superior officers of the duty people. There is no allegation that any actual federal agent has been unable to obtain any result permitted by the law. That information is obviously available to the government’s lawyers if it existed.

It appears that Chicago has a powerful defense against these claims under the anti-commandeering doctrine. Here’s a report from the Congressional Research Service. It says that there are six district court opinions all holding in Chicago’s favor.  I haven’t checked to see if there is later precedent (but this indicates there isn’t any ). If that’s right, then a demand should be made for preservation of records regarding how and why this suit was filed. Was there an improper purpose, like a political purpose?

The demand should include any and all records at the Department of Justice in D.C., as well as documents in the possession or under the control of the US Attorney who filed the suit and all of the lawyers who signed the complaint. The demand should also cover all documents justifying a claim that anti-commandeering case law should be ignored or overturned, and documents related to that determination.

This demand will set up a possible counterclaim for abuse of process as well as sanctions under Rule 11.

Example: Birthright Citizenship cases

Trump’s executive order on birthright citizenship is at stake in several pending cases. Judge Sorokin of the District of Massachusetts issued a preliminary injunction against implementation of the EO in a 31 page opinion. Here’s footnote 8:

In fact, the defendants’ discussion of Texas in their papers verges on misleading. The language upon which they most heavily rely appears in a footnote quoted in their opposition memorandum and referenced during the motion hearing. Contrary to the defendants’ characterization, that footnote is not a “holding,” and it does not “foreclose[]” the State plaintiffs’ standing in this case. Id. Rather, it acknowledges that “States sometimes have standing to sue . . . an executive agency or officer,” and though it warns that “standing can become more attenuated” when based on “indirect effects” of federal action, it stops short of saying such effects could never satisfy Article III. Id. This case, in any event, concerns direct effects. Cites omitted.

That doesn’t verge on misleading, it’s misleading, and required the parties and the Courts to expend time and energy unraveling it.

The Judge also calls out the government’s argument that birthright citizenship requires “mutual consent between person and polity”. The child, of course, can’t consent so that falls to the parents. The government says that if the parents are here illegally, the polity, the US, did not consent to citizenship.

Judge Sorokin rejects that argument, saying[ that birthright citizenship is granted to the child. The parents are not involved. Second, all of the parents of enslaved people were here under duress, not by consent. Therefore the argument means the 14th Amendment doesn’t apply to children of slaves. The Court says this argument “verges on frivolous.” I’d say it crosses the frivolous line into stupid.

Both the state and private plaintiffs should move for sanctions under Rule 11. On its own, the Court should require all the lawyers who signed the pleading to attend three hours of ethics training and certify their attendance within 60 days.

One more example.

Out-of-state lawyers are usually required to apply for and receive permission to appear pro hac vice. Most right-wing litigation groups, like Americans Defending Freedom, use out-of-state lawyers. If sanctions are appropriate under Rule 11, there is nothing to prevent the court from imposing as a sanction termination of pro hac admission. Admission pro hac in future cases will set up the possibility of moving to deny or revoke admission on the grounds that the lawyer has been revoked in one court. That will certainly deter garbage filings.

Conclusion

I know courts are reluctant to award sanctions. But this administration is abusing the courts, just as Trump has done all his life. If courts refuse to protect themselves, and refuse to fully protect the people damaged by illegal actions, their already trashed reputation will sink into negative territory.

I also know that lawyers don’t like to ask for sanctions. It’s an unwritten rule tied to notions of collegiality.  I know it’s particularly difficult with government lawyers, because of the risk they’ll appear in another case where your clients might be hurt.

But. Adhering to unwritten rules has led to this: Trump walks free, free to abuse the courts, free to wreak vengeance, free to wreck what it took centuries to build. Fixing this is more important than fake gentility.