Lol, Rudy Tudy Is Moldy Fruity

Rudy had his lawyer promise to the jury that Rudy would testify and explain the truth.

Nope, he not only failed to personally testify, he put on no defense at all.

Mothers, don’t let your babies to ever grow up to be this stupid.

$148 million. Wow.

You all should get ready to learn about:

1) additur and remittitur.

2) Supersedeas bonds.

This was absolutely a damning verdict, and there is no way for Rudy to hide from it. Nor Trump, who will blithely act like he never knew Rudy.

Fun times, but there is a LOT ahead. Stay tuned.

Prosecutors in Georgia Still Abusing Their Over Broad RICO Law

You might remember me complaining that the way Fulton County Attorney’s Office was ridiculous with their application of their state’s RICO provisio. I said that it was absurd, abusive and would lead to further abuse of it.
Well further evidence of that abuse is now here, and it is very ugly. Via the Washington Post:

“A Georgia grand jury has indicted 61 people on racketeering charges connected to protests that seek to block the building of the planned police and firefighter training facility in Atlanta that has been referred by critics as “Cop City.”

Georgia Attorney General Chris Carr (R) announced the sweeping indictment Tuesday after a long-running state investigation that mainly focused on members of Defend the Atlanta Forest, which prosecutors called an “anti-government, anti-police, and anti-corporate extremist organization” that has supported a violent movement against law enforcement since the 2020 racial justice protests.The 109-page indictment was filed in Fulton County on Aug. 29, just weeks after the same grand jury charged former president Donald Trump with racketeering charges under the state’s Racketeer Influenced and Corrupt Organizations (RICO) law, in connection with efforts to overturn President Biden’s 2020 win in Georgia.”

Yes, you read that right, the same grand jury that rendered the sprawling Trump and friends indictment. At least this time the State of Georgia acted through its proper Attorney General, and not through a local county attorney who took it upon herself.

“Designed to prosecute a criminal enterprise, the law has also been used against gang leaders and human traffickers. The Georgia RICO law is one of the broadest in the country. It allows prosecutors to weave together a wide variety of alleged crimes, including violations of state and federal laws, and even activities in other states. The charges brought against the activists is the latest example of Georgia prosecutors bringing racketeering counts in prominent cases.”

Yeah, no kidding. Yes, RICO was gratuitous as to Trump. In fact, I think it made the Fulton County indictment weaker if cases go to trial. It is complex and confusing. And a jury may well find it so. Or not. We’ll see.
 
As to the protestors, keep in mind that the minimum sentence is 5 years prison. Same for Trump et. al. A judge can modify that, but what if a judge doesn’t? 

This is now going to spread outside of Georgia, and that is very much not a good thing. It was designed for mob bosses, and then drug cartels, and nobody cares about that use. But expansion like in GA to political speach and acts is really bad. It is more than bad, it is heinous. It is a stain and blight on the American criminal justice system.

I warned that what has, and was, being done in Georgia was dangerous. And this is just then tip of the iceberg coming because it will spread.

For anybody that has forgotten, here is Ken White, aka Popehat, on RICO.And, yeah, he pretty much maintains that as to the Trump et. al indictment in Fulton County:

“I am not a Georgia law expert. Federal RICO against Trump would be extremely implausible. Georgia RICO? Won’t speculate. I will say that Georgia RICO seems like a needlessly convoluted and performative approach, but DAs gonna DA.”

That was from Ken’s Mastodon account. He has also said:

“In my view, the Georgia RICO indictment is gratuitous, self-indulgent, and careless of the appearance of legitimacy.”

That is being kind, and the indictment of the protestors for RICO is even more absurd. The moral of the story is be careful of what you cheer for, because what Georgia is doing is truly egregious.

Trump Court Hearings For August 28, 2023

Alright, there are two hearings today, both at pretty much the same time. The first is in Prettyman Courthouse in DC and concerns trial scheduling for the J6 case of Jack Smith. It may get VERY contentious. As a preview, even Trump’s attorneys are at severe disagreement, with one saying no trial and must wait until 2026. Alina Habba, on the other hand says Trump knows everything and is ready to go. I’ve always considered Habba a bit of a dim bulb, but man did she prove it there.

Regarding the other simultaneous matter, it concerns ostensibly Mark Meadows’ motion to remove the Willis charges to federal court. It was filed, and will be heard, in the Northern District of Georgia.

Via @CNN:

“Fulton County District Attorney Fani Willis will lay out the first details of her sprawling anti-racketeering case against former President Donald Trump, his White House chief of staff Mark Meadows and 17 other co-defendants at a federal court hearing on Monday morning.

This will be the first time that substantive arguments will be made in court about the four criminal cases brought against Trump this year.

The subject of the hearing, set to begin at 10 a.m., is Meadows’ motion to move his case to federal court and possibly have it thrown out, but it’s much more than that – it could end up acting as a mini-trial that determines the future of Fulton County’s case against the former president.”

I am not sure how much of a “mini-trial” this will really be. If so, that could take all day if evidence is to be presented and argued, which strikes me as unlikely. No cameras in either hearing so you will have to follow @Brandi Buchman and, I believe, @JoshGerstein for live updates. Via Rosalind, “Jordan Fischer – @JordanOnRecord on bird site – is also giving nice updates for the D.C. hearing.”

UPDATE: The Fulton County Judge has just set September 6 as the arraignment and plea date for all Fulton County defendants, including Trump. That is pointy to be a busy day for the court then. Unclear if some will be allowed to appear by video, but they sure our ht to be encouraged to do so.

Something Happened To Our Planet

Something happened to our planet, and it was us. The upshot is that it is getting insane. People yammer about how hot it is currently in Phoenix. It has always been thus, but it no longer cools off at night. The high temperatures are not the problem so much as the the overall heating. Including that the cool off at night no longer happens.

Climate change and heat sinking.

But, together, they really do matter. A lot. Both can be minimized if humans are not stupid. Do not count on that happening. Because humans are stupid.

But the kids today, and their kids, will make the future. They can make a difference in their own schools and communities. Starting now.

This is  book for kids. But a really helpful, and useful, one.

Many, if not most, of the people that frequent here won’t be around in fifty years to see how it all goes, but you can school up those next generations. This book can help. It is a great starting point.

As an adviso, the author is a friend and relative of mine. But I would not recommend it if I did not truly believe in her and her work.

Thomas, Alito and Christmas Cookies

You have heard about the private jet and yacht trips given to Clarence Thomas, the jet trips given to Samuel Alito, etc. The stories of this type of absolute impropriety are seemingly endless.

Senior Massachusetts District Judge Michael Ponsor has penned an op-ed in today’s New York Times: in which he discuses the acceptable limits of what federal judges can take as grift. It is quite good and not very long, I’d suggest a read of it.

What has gone wrong with the Supreme Court’s sense of smell?

I joined the federal bench in 1984, some years before any of the justices currently on the Supreme Court. Throughout my career, I have been bound and guided by a written code of conduct, backed by a committee of colleagues I can call on for advice. In fact, I checked with a member of that committee before writing this essay.
….
The recent descriptions of the behavior of some of our justices and particularly their attempts to defend their conduct have not just raised my eyebrows; they’ve raised the whole top of my head. Lavish, no-cost vacations? Hypertechnical arguments about how a free private airplane flight is a kind of facility? A justice’s spouse prominently involved in advocating on issues before the court without the justice’s recusal? Repeated omissions in mandatory financial disclosure statements brushed under the rug as inadvertent? A justice’s taxpayer-financed staff reportedly helping to promote her books? Private school tuition for a justice’s family member covered by a wealthy benefactor? Wow.

This is FAR beyond “the appearance of impropriety”, it is actual impropriety. Any judge and/or lawyer with even an ounce of ethics knows this, and it is patently obvious. It is wrong.

Let me give you an analogy that demonstrates how absurd Thomas and Alito really are.

Many, many years ago, a junior partner in our firm decided to be nice to the local county level judges we practiced in front of. So she got a bunch of boxes of Christmas cookies from a local custom cookie place and tried to deliver them to the pertinent judges for Christmas.They were just local superior court judges, not SCOTUS level. They turned them down, and there were a bunch of cookies suddenly in our kitchen and lounge.

There were a lot of attorneys, including me, both prosecution and defense, that used to drink at a local downtown dive bar after 5 pm. Judges, both federal and state, came in too. The lawyers always swapped rounds. But not the judges, they always paid for their own.

Nobody in the world would have carped about it if the judges would have eaten the cookies, nor had the judges gotten a free drink. They just did not. It was pretty admirable.

And now, when such things should be far more apparent, we have a Supreme Court that thinks they are entitled to the graft and grift. Do I think that makes them “corrupt” per se? I do not know that, we shall see how it all plays out further.

How Many Podunk Local DAs Ought to Arrogate Themselves Federal Election Police?

For anybody that has read me here, or followed me on Twitter, you know I have maintained from the start that Fani Willis, and her “investigation” is a complete joke.

Have also maintained the Trump conspiracy actions in Arizona were as bad as Georgia, if not worse.

Apparently the national media has caught on to what informed Arizonans have known from the start.

Arizona Governor Doug Ducey was hit up by Trump (so was the then Secretary of State).

So, why is the ladder climbing Fani Willis the only local DA trying to enforce federal election law, much less her completely bogus RICO posit?

There are now people in Arizona clamoring for this horse manure. Thanks to Fani Willis and her self serving showboating garbage.

Fulton County, where Fani Willis is the local DA, has approximately 1.1 million county residents. Maricopa County, where all significant acts in AZ occurred, has nearly 5 million.

So, should every pissant local county prosecutor arrogate upon themselves to control and charge federal election crimes?

No. Nor should local AGs. Leave this to the Feds.

Things are getting just absurd.

On Judge Aileen M. Cannon

The New York Times is out with a long, interesting, piece on SDFL Judge Aileen M. Cannon by Schmidt and Savage. I won’t call it a hit piece, but it is extremely negatively framed, and in some regards disingenuously so. For a news article, there is no way not to view it as a position piece.

“Aileen M. Cannon, the Federal District Court judge assigned to preside over former President Donald J. Trump’s classified documents case, has scant experience running criminal trials, calling into question her readiness to handle what is likely to be an extraordinarily complex and high-profile courtroom clash.

Judge Cannon, 42, has been on the bench since November 2020, when Mr. Trump gave her a lifetime appointment shortly after he lost re-election. She had not previously served as any kind of judge, and because about 98 percent of federal criminal cases are resolved with plea deals, she has had only a limited opportunity to learn how to preside over a trial.”

That is the opening salvo. Okay, Cannon is a newish federal judge. So what? You take your federal judges as you get them, not as you want them. Criminal trials are not the only trials federal judges do, they also do civil trials. And complicated criminal hearings, including evidentiary ones, pre-trial that most often lead to pleas. The NYT did not delve into that, to any extent it may exist. The fact Cannon has only four criminal jury trials is not shocking in the least. Importuning that she is incompetent because of that is lame.

In Arizona state courts, I have Rule 10 right to notice a change of judge as a right within 10 days of arraignment or assignment of judicial officer.

There is no such availability in federal court. You get what you get. TV lawyer gadabouts like Norm Eisen are shouting that Cannon MUST recuse, and if not Smith must affirmatively move for her disqualification. Based on a ruling in a short civil matter involving Trump previously. Granted her action in that matter was dubious, to be overly kind. But even the hideous 11th Circuit slapped that down, and she complied with the edict. This is a non-starter, and Smith would be an idiot to attempt it. Attempt that and lose, and you almost certainly would, now you really have a problem.

Would Cannon self recuse? There is no evidence of that to date. My friend Scott Greenfield thinks she should for the sake of her career, while acknowledging there is little to no chance of forcing her off like windbags like Eisen clamor for.

I, which rarely happens, disagree with Scott. It would torpedo her career and be a tacit admission she is a right wing nut job incapable of presiding over any partisan issues. That would not be a good look, does not look like a career enhancer in a jurisdiction like SDFL to me.

Back to the NYT article. It reports:

“But the chances appeared low. Under the Southern District of Florida’s practices, a computer in the clerk’s office assigns new cases randomly among judges who sit in the division where the matter arose or a neighboring one — even if the matter relates to a previous case. Nevertheless, Judge Cannon got it.

That is completely contrary to the facts as I understand them. As I have related in comments previously, anybody who took the job seriously enough to check with the clerk’s office, and current status of the SDFL bench could have seen this coming. Not just as a freak chance, but arguably a likelihood. Smith chose to put his eggs in that basket, and did so.

Another portion of the report literally made me roll out of bed and laugh:

“At the same time, they said, she is demonstrably inexperienced and can bristle when her actions are questioned or unexpected issues arise. The lawyers declined to speak publicly because they did not want to be identified criticizing a judge who has a lifetime appointment and before whom they will likely appear again.”

Seriously?? That describes pretty much EVERY federal judge I have been in front of, irrespective of how long they have been on the bench. This is completely silly land.

Here is another one:

“The Trump case is likely to raise myriad complexities that would be challenging for any judge — let alone one who will be essentially learning on the job.

There are expected to be fights, for example, over how classified information can be used as evidence under the Classified Information Procedures Act, a national security law that Judge Cannon has apparently never dealt with before.”

Seriously? There are a LOT of very experienced federal District judges that have never had to meaningfully deal with CIPA at trial. And most of the ones that have are in DC or EDVA. Again Smith chose this locus, he, and we, will have to live with it. So too should the NYT instead of posting up a somewhat dubious and negative filled report.

The Times report goes on to belittle Cannon’s background and qualification to even serve. But Cannon is nowhere near as bad as many of Trump’s appointments. She is a graduate of Duke and then the University of Michigan Law School. She worked for years at Gibson Dunn and as an AUSA. She is fully qualified, even if you think she should not have been nominated. And the NYT citing “ABA” ratings as still being relevant in any regard seems quaint, at best.

Read the NYT article. I am sure it will inflame your passions. But this is federal court, and the law, where not your passions control things. Am I warm and fuzzy about Judge Aileen M. Cannon? No, not whatsoever, but that is irrelevant. Here is where the issue is, for better or worse. Unless Cannon self recuses, that is where it shall remain.

Where Is The Proud Boys Verdict?

Friday has come and gone without a jury verdict in the Proud Boys case in front of Tim Kelly in DC District Court.

Couple of days ago, somebody asked me when I expected a verdict. That is fools’ play, but I said probably Friday because juries want to get on with their lives, and not come back, yet again, the next week.

Apparently I got that all wrong. Go figure.

So why did the PB jury blow past an obvious chance to be done? I do not know that either, but there is a fair chance it is not about ultimate guilt or innocence, but about multiple defendants and the complexity of the seditious conspiracy charge so many people (even here) have long clamored for.

Sometimes you get what you asked for, and that may be the case here. Counts, charges and jury instructions matter. I hope that is not the holdup here, but very much fear it could be. And that is what happens when you do not keep things narrow and strong.

We shall see.

The Tax Aspects Of The Massive Fox Settlement With Dominion

[Editor note: This is a guest post by my friend Bob Lord. I am no tax policy legal expert, but he really is and I ask him to weigh in occasionally. Commenters asked about this question previously, so here is the answer. – bmaz]

My friend bmaz, noting reporting in The Lever that Fox News could claim a tax deduction for its massive settlement payment to Dominion Voting Systems, asked me to explain it further here.

Yes, Fox News claiming a massive tax deduction, resulting in a $200 million or so tax reduction, is an unpleasant thought.

It’s also sound tax policy. Fox News is a business. A shady one perhaps, but still a business. In the course of operating a business, employees sometimes screw up. Businesses get sued. Sometimes the suits are justified. Sometimes they’re not. Sound tax policy dictates that the cost of resolving such claims reduce the taxable profits of a business.

To see this, consider a different scenario. Say Donald Trump, who we know to be litigious, files a bogus claim against your corporation for trade libel. You hire lawyers to defend the corporation and the corporation eventually agrees to pay a small amount to settle, rather than incur the expense of going to trial. Should the cost of settling be deductible by your corporation? Obviously, yes.

Objectively, Fox News’ position is the same as yours. The corporation was sued for trade libel, and it settled the case. If your corporation is entitled to a deduction, so is Fox News. We all may be sure Fox News’ employees promoted lies here, but the objective facts are that Dominion agreed to settle for less than half the amount it was claiming in damages.

Should the tax result be the same if the case had gone to trial and Fox lost? Should the payment of the judgment be deductible? Yes, for multiple reasons. First, judgments in civil cases are not definitive. They are decided based on a preponderance of the evidence. Second, the claim arose out of the conduct of Fox’s business operation, the same operation that generates its profits. Third, treatment of payment of a judgment differently from payment of settlement would put defendants in these cases in an untenable position, as their financial incentive to settle would be greater than that of the plaintiffs.

To be sure, as The Lever’s reporting mentions, there are areas where public policy considerations are so compelling that tax deductions for payments of legal claims should not be allowed. But for that to make sense in Fox’s case, it would have to make sense in all trade libel cases. Yes, Fox’s alleged conduct here was particularly odious, but consider the case of a company that settles a claim for an allegedly false statement about a competitor’s product. Do public policy considerations demand that the company not be allowed a tax deduction? In evaluating this, remember that if the company is allowed a deduction, the tax outcome is a breakeven for the government, as the claimant would be required to pay tax on the settlement payment, and if the company is not allowed a deduction, the government gets a windfall. Also, making the economic consequences of trade libel more harsh by not allowing damage payments to be deductible would have a chilling effect on speech.

So, does all that mean our tax system is not really rigged in favor of the rich? No, it absolutely is rigged in favor of those at the top. Louis Brandeis famously said that “we can have democracy in this country or we can have great wealth concentrated in the hands of the few, but we can’t have both.” I’d put it differently: “We can have democracy in this country or we can have a tax system that allows great wealth to be concentrated in the hands of the few, but we can’t have both.”

For over four decades, our tax system has failed us and the failure now threatens our democracy. When 13,000 out of 130 million households (that’s 0.01 percent) hold close to ten percent of the country’s wealth, that’s great wealth concentrated in the hands of the few. The average wealth of those 13,000 families, by the way, is very close to one billion dollars. And this situation is the direct result of over four decades of tax policies rigged in favor of the rich.

Those who did most of the rigging want to rig it further. A few weeks ago, 41 Republican Senators introduced their “Death Tax Repeal Act.” That bill, as I explain more fully here, would allow Jeff Bezos to pass his Amazon shares to his children on his death, who then could sell them for about $130 billion, with zero income tax and zero estate tax paid on the entire amount. We’re already likely to have families with wealth in excess of one trillion dollars (think about that) within the next decade or so. If the Republicans’ bill were to become law, that likelihood would become a certainty. And, by the way, when a similar bill was passed by the House in 2015, Kyrsten Sinema, then a House member, voted for it.

That’s why the Patriotic Millionaires, the organization I advise on tax policy, has proposed a complete overhaul of the federal tax code. You can read about it here.

The bottom line: You shouldn’t be angry about Fox News’ tax deduction, but you should be very angry about the state of our tax system and join the effort to fix it, before it’s too late.

Bob Lord is Senior Advisor, Tax Policy at Patriotic Millionaires and an Institute for Policy Studies associate fellow.

The Shadow Docket

One of the few perks I have here at Emptywheel is being able to say what I think. I think you should go buy and read The Shadow Docket by Steve Vladeck.

Mr. Vladeck has been intoning this for a long time. Here he was back in November 2019:

“But insofar as this description is accurate, it is not obvious that it is a positive development. Among other things, such an approach is radically out of kilter with the Court’s approach to the rest of its docket. The Justices have repeatedly emphasized, especially lately, that “[o]urs is ‘a court of final review and not first view,’”20 and for good reason. By waiting for most cases to go through multiple layers of review by lower courts (and, often, multiple cases going through those multiple layers), the Court gives itself the benefit of multiple rounds of briefing and argument — and, usually, lower court rulings — on which to base decisions to grant certiorari and, if necessary, analysis of the merits. To abandon this norm only in cases in which the federal government is the complaining party is to invite serious objections grounded in fairness and equity — and to necessarily tilt the Court’s limited resources toward an undoubtedly important, but importantly narrow, class of disputes. Worse still, such a shift gives at least the appearance that the Court is showing favoritism not only for the federal government as a party, but for a specific political party when it’s in control of the federal government.”

True then, and increasingly so now. In the age of the internet, books are given short shrift. But they are still vital and important. Sales of books, especially early, are vitally important. This is a book that is important, and quite affordable. If you can, please go give Steve a bit of support, he is a pretty decent chap and, hopefully, a friend.

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