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James Orenstein Calls Out Jim Comey on His Prevarications about Democracy

At a 10 AM Senate Homeland Security hearing on October 8, Jim Comey read prepared testimony that reiterated his claim that encrypted devices are causing FBI problems, but stated that the Administration is not seeking legislation to do anything about it.

Unfortunately, changing forms of Internet communication and the use of encryption are posing real challenges to the FBI’s ability to fulfill its public safety and national security missions.. This real and growing gap, to which the FBI refers as “Going Dark,” is an area of continuing focus for the FBI; we believe it must be addressed given the resulting risks are grave both in both traditional criminal matters as well as in national security matters. The United States Government is actively engaged with private companies to ensure they understand the public safety and national security risks that result from malicious actors’ use of their encrypted products and services. However, the Administration is not seeking legislation at this time.

That statement got the Administration a lot of good press, with the WaPo declaring “Obama administration opts not to force firms to decrypt data — for now” and the NYT, even after this ruling had been unsealed, reporting, “Obama Won’t Seek Access to Encrypted User Data.” In the actual hearing, Comey was more clear that he did intend to keep asking providers for data and that the government was having “increasingly productive conversations with industry” to get them to do so, inspired in part by government claims about the ISIS threat. Part of that cooperation, per Comey, was “how can we get you to comply with a court order.”

Sometime that same day, on October 8, government lawyers submitted a request to a federal magistrate in Brooklyn to obligate Apple to help unlock a device law enforcement had been unable to unlock on their own.

In a sealed application filed on October 8, 2015, the government asks the court to issue an order pursuant to the All Writs Act, 28 U.S.C. § 1651, directing Apple, Inc. (“Apple”) to assist in the execution of a federal search warrant by disabling the security of an Apple device that the government has lawfully seized pursuant to a warrant issued by this court. Law enforcement agents have discovered the device to be locked, and have tried and failed to bypass that lock. As a result, they cannot gain access to any data stored on the device notwithstanding the authority to do so conferred by this court’s warrant.

The next day the judge, James Orenstein, deferred ruling on whether the All Writs Act is applicable in this case (though he did suggest it probably wasn’t) pending briefing from Apple on how burdensome it would find the request. Orenstein released his memo after giving the government opportunity to review his order.

This is not the first time the government has tried to use the All Writs Act to force providers (Apple, in at least one of the known cases) to help unlock a phone. EFF described two instances from last year in a December post. It also reviewed a 2005 ruling where Orenstein refused to allow the government to use All Writs Act to force telecoms to provide cell site location in real time.

Of course, as Lawfare seems to suggest, it has taken a decade for the decision Orenstein made in that earlier ruling — that the government needs a warrant to get cell tracking from a phone — to finally get fully developed into a debate and some Supreme Court (US v. Jones) and circuit rulings. That’s because in the interim, plenty of magistrates continued to compel providers to give such information to the government.

It’s quite possible the same is true here: that this is not just the third attempt to get a court to issue an All Writs Act to get Apple to provide data, but that instead, a number of magistrates who are more compliant with government wishes have agreed to do so as well. Indeed, as Orenstein noted, that’s a suggestion the government made in its application when it claimed “in other cases, courts have ordered Apple to assist in effectuating search warrants under the authority of the All Writs Act [and that] Apple has complied with such orders.”

What Orenstein did, then, was to make it clear this continues to go on, that even as Jim Comey and others were making public claims (and getting public acclaim) for not seeking legislation that would compel production of encrypted data the government — including, presumably, the FBI — was seeking court orders that would compel production secretly. The key rhetorical move in Orenstein’s order came when Orenstein compared Comey’s public statements claiming to support debate on this issue to the attempt to claim the government had to rely on the All Writs Act because no law existed. In a long footnote, Orenstein quoted from Comey’s Lawfare post,

Democracies resolve such tensions through robust debate …. It may be that, as a people, we decide the benefits here outweigh the costs and that there is no sensible, technically feasible way to optimize privacy and safety in this particular context, or that public safety folks will be able to do their job well enough in a world of universal strong encryption. Those are decisions Americans should make, but I think part of my job is [to] make sure the debate is informed by a reasonable understanding of the costs.

Then Orenstein pointed out that relying on the All Writs Act would undercut precisely the democratic debate Comey claimed to want to have.

Director Comey’s view about how such policy matters should be resolved is in tension, if not entirely at odds, with the robust application of the All Writs Act the government now advocates. Even if CALEA and the Congressional determination not to mandate “back door” access for law enforcement to encrypted devices does not foreclose reliance on the All Writs Act to grant the instant motion, using an aggressive interpretation of that statute’s scope to short-circuit public debate on this controversy seems fundamentally inconsistent with the proposition that such important policy issues should be determined in the first instance by the legislative branch after public debate – as opposed to having them decided by the judiciary in sealed, ex parte proceedings.

To be fair, even as the government was submitting its secret request to Orenstein, Comey was disavowing his former pro-democratic stance, and instead making it clear the government would try to find some other way to get orders forcing providers to comply.

But, given Orenstein’s invitation for Apple to lay out how onerous this is on it, Comey might get the democratic debate he once embraced.

Update: When I wrote this in the middle of the night I misspelled Judge Orenstein’s name. My apologies!


Green Bay TitleTown MNF Fall Is Here Trash Talk (NFL Week 3)

Hi there lugnuts, it is time for another edition of Emptywheel’s Famous Trash Talk! I actually would have started this last night, and therefore had it up earlier this morning, but had to go out to dinner and my new iPhone 6S had been delivered and was waiting when I got home. So, you know, I had to play with that and get it set up.

Thing sure is pretty. The experience deteriorated after unboxing it though. Apparently many of the early units shipped with iOS 9 and there is a bug in that OS which cause many users to have their phones freeze up on them during the setup process. I was one of those, and a very frustrated one of those, until I called AT&T help. A lovely chap named Nate helped me through the fix, which literally took about half an hour on the phone guiding me through it all. Nate was great, and now the device is functioning beautifully. It really is a fantastic bit of electronic hardware. Today (if the tracking is accurate), my wife’s will be delivered and we will now know what to do for it too. So, a hassle at first, but pretty wowed by the product in action.

Okay, Trash Talk came, in one sense, a little early this week with my early morning post yesterday on the Patrick Kane alleged rape case in Buffalo. There are a couple of new developments. First, the Erie county DA, Frank Sedita, held a presser yesterday a few hours after I had posted. I was in court and did not see it, but here is, to me at least, the key takeaway via Michael McCann and SI:

Sedita’s revelation was the latest bizarre development in an investigation that now seems less likely than ever to result in the Chicago Blackhawks superstar being charged with any crime.

Sedita said that the bag—which had been identified by the lawyer for Kane’s accuser as proof that key evidence had been tampered with—had actually been given to the accuser’s mother when she accompanied her daughter to the hospital to have a rape test performed. She was the last known person to have the bag, he said, and it was used to store one of her daughter’s garments and not the contents of a rape test kit.

He then showed video to prove that no bag had ever been used to store the kit and to verify that the chain of custody for the evidence has always been secure.

If true, this case is dead. The only question is whether Sedita himself declines to go further, or whether he seeks the imprimatur of submitting it to a grand jury to likely decline to prosecute. McCann seems to believe it will be the former. If there is no positive evidence in the real rape kit, and the chain of custody is as Sedita has consistently stated from the start, then he probably should decline prosecution. Cases without a reasonable likelihood of conviction should not be brought, and they all too often are.

Okay, on to the games. F1 is in Suzuka Japan for the Japanese Grand Prix. Nico Rosberg took pole last night over Mercedes teammate Hamilton, with Bottas, Vettel, Massa and Raikkonen of the Williams and Ferrari teams alternating in P3 through P6. Red Bull’s Daniil Kvyat had a nasty crash, but seems to be okay. Suzuka is a great track, this could be a pretty interesting race.

As to the NCAA men, it is such a pitiful week’s schedule of games that the ESPN Game Day folks are holding fort in freaking Tucson, where Rich Rod and Arizona are hosting the UCLA Bruins and their wonder boy true frosh QB Josh Rosen. And hot damn! they have Arizona alum and southern Arizona guy Bob Baffert on the set. Excellent! UCLA looks to be a far better team. But DANGER WILL ROBINSON DANGER!this is exactly the kind of upset that very often happens down in Tucson when the Cats Bear Down. We shall see, but I take the Cats. The only other game worth squat is USC here against the Sun Devils in Tempe at night on ESPN. I actually have tickets to the game, but not sure I am going to be able to go. Neither the Trojans nor ASU appear to be as solid as was thought before the season started. I’ll take the Devils, but don’t feel good about it at all.

As to the Joes in the Pros, well, of course I am excited about the MNF game between the Chefs and Packers at Lambeau. Seriously, what is better than a rematch of Super Bowl 1 played under the lights on the not yet Frozen Tundra? Doesn’t get any better than that. The Chefs are going to do some cooking this year, but not in Mr. Rodgers’ neighborhood. Take the Pack.

Niners are coming to Phoenix, where the Cardinals are not usually very hospitable. And, shhhh! don’t tell anyone, but the Cards are getting close to having a run game. Not there yet, but getting closer. Bengals at Ravens is a critical game for the Northern Dirty Birds. Bengals looks more solid this year, but then they always do until they don’t (half ass tribute to the great Yogi Berra there). Falcons at the Cowboys will be interesting only because Romo and Dez Bryant are gone. Eagles at Jets interesting because everybody thought the Iggles would be 2-0 and the Jets Jets Jets 0-2 right about now, not the other way around.

Oh well, talk amongst yourselves and, always, rock and roll. Music this week by my new favorite band from down under, Boom! Bap! Pow!

Raising Pat Kane and Lawyers Selling Out Clients

If you haven't seen the reportage, there is a bit of a fascinating case going on up in Erie County of New York. That would be the Buffalo area, give or take. The matter involves the star of the Chicago Blackhawks, the current Stanley Cup Champions, Patrick Kane. And it involves extremely serious rape allegations.

Several people, both on and offline, have asked me about this case. I have made a few observations on Twitter (namely that the cops have a LOT to answer for, and that this case is nuts), which I stand by, but have been unwilling, without more, and better, facts to really express much of an ultimate opinion.

I am still not willing to go to Kane’s ultimate guilt or innocence, and neither should anybody else at this point. In fact, it is revolting to the extent that many in the press, especially digital media, have putatively done so. I have long loved Dave Zirin, of The Nation, but he got out ahead of himself and criminal (frankly even civil) law here:

In the entire horrific history of male sports stars and accusations of sexual violence, there may have never been a story as nauseating as this one.

Yeah, what?? That was while he was explaining that there may actually be a heinous problem with the critical evidence of guilt. So let’s frame it in terms of the victim, right?

Okay, but which victim? Is the “victim” the one Zirin, and honestly most of us, assume, i.e. the “accuser”?

It may well be!

But, is it necessarily? No, the “victim” could well be Kane too. Usually the cops and prosecutors are putting their weight behind a civilian victim and lying against the accused. At least that is my experience. Sometimes the “State” case is only lightly shaded by the cops and prosecutors, sometimes (and this is way more than you think), it is in an unreasonably leveraged, and borderline unconscionable, manner. And this is the problem with a victim culture in criminal matters, victims get presumed and the presumption of innocence gets lost.

So, what about here where the DA is standing up and saying everybody needs to slow down on Kane? Is the DA protecting justice, or preventing it?

We don’t know. I don’t know. Dave Zirin doesn’t know. And neither do you. The publics’ emotions and feelings are not the judgment of the civil, much less criminal, justice system. Time may tell, or this case may be so fundamentally buggered up by yet unknown actors that it is never really known what happened.

But there is one way in which the accuser is absolutely a clear cut victim. She has been screwed by her, now former, lawyer, Tom Eoannou:

The lawyer for a woman accusing Chicago Blackhawks star Patrick Kane of sexual assault abruptly quit the case Thursday night, saying he’s no longer comfortable representing the woman because of how her mother reported finding an evidence bag they believed once held the woman’s rape kit.

Thomas Eoannou told reporters he believes there were, what he called, “fabrications” in the story of how the bag was found. He added that he’s no longer sure if the bag ever contained evidence from the investigation.

“I can only say that I don’t know what’s true and what’s not true,” Eoannou said during a hastily called news conference at his downtown Buffalo law office. “I received the storyline from the mother. And it’s my position that I’m not comfortable with that version of the events.”

Say what??

I don’t know where this story will ultimately go, but suffice it to say that it is some major league ethically dubious lawyering for Eoannou, to be publicly holding a press conference to say he doesn’t “have confidence” in his client’s story. Especially when he is abandoning his client in the process. On what any moron would know would be, nearly instantly, national television.

I guess Eoannou stopped a little short of calling his own client, and her mother, lying frauds, but, seriously, he did everything but that and certainly implied it. This is just flat out scummy, and arguably patently unethical lawyering, in my opinion. And it hurts lawyers, of all stripes, everywhere and taints the entire judicial system.

You don’t get to say such things as a lawyer. You CAN’T say such things as a lawyer. Not while both the active criminal investigation, and potential civil case, hang in the lurch for your client. And not while walking away like a coward from your client. Because that is selling your client, and everything you, as a lawyer, are supposed to stand for down the river. On a barge the width of the Mississippi.

Nothing good ever comes from a lawyer running his mouth to the press on a case before he really knows the facts. Far too many attorneys are tempted to self aggrandize and publicize themselves on their “big case” before they know what they are really dealing with. Thomas Eoannou should not have been yakking to the press to start with, much less have held a press availability to explain how he was shitting on his client and her case.

This is unconscionable, and unprofessional, media whoring at its worst. It brings to mind the case of David Aylor, the former lawyer for the cop charged with executing Walter Scott in South Carolina. As my friend Scott Greenfield said in that matter:

No one forces you to rush out to the spotlight and make a statement before you have a clue what evidence exists against your client, and no one forces you to rush out to the spotlight a second time when you’re exposed as the fool who shot off his mouth.

At first, the spotlight seems warm and alluring to the lawyer, a chance to get his brand out in public and make a name for himself as the kind of lawyer who can handle the big time. But stand in the spotlight long enough and it starts to burn.

Exactly. You just cannot do that, whether you represent the accused or the putative victim. You cannot bias and/or destroy your client’s case, your duty is to zealously protect the client. Here, Eoannou has prejudiced both the accuser’s case as a potential crime victim and any potential civil case she might have against Kane. That is simply impermissible irrespective of where the ultimate truth lies in the rape accusation against Patrick Kane.

UPDATE: Scribe has some good information in this comment regarding the the violations of the New York ethics code Thomas Eoannou arguably ran afoul of.

This is exacerbated by what might be the lawyer’s pretty blatant violation of the ethical rules. New York’s version of the Rules of Professional Conduct are interpreted more broadly than in other states, when it comes to disclosure of client confidences. Disclosure of anything that might embarrass the client or prejudice his rights is prohibited. The classic example is how the high-profile divorce lawyer is not allowed to acknowledge that the prominent movie star with a family values image has been to his office. This even if the star is not a client but only a prospective client.

NY RPC 1.6 states, in pertinent part:

(a) A lawyer shall not knowingly reveal confidential information, as defined
in this Rule, or use such information to the disadvantage of a client or for the
advantage of the lawyer or a third person, unless:
(1) the client gives informed consent, as defined in Rule 1.0(j);
(2) the disclosure is impliedly authorized to advance the best interests of the client and is either reasonable under the circumstances or customary in the professional community; or
(3) the disclosure is permitted by paragraph (b).
“Confidential information” consists of information gained during or relating
to the representation of a client, whatever its source, that is (a) protected by the
attorney-client privilege, (b) likely to be embarrassing or detrimental to the client if
disclosed, or (c) ….

(b) A lawyer may reveal or use confidential information to the extent that the lawyer reasonably believes necessary:
(1) to prevent reasonably certain death or substantial bodily harm;
(2) to prevent the client from committing a crime;
(3) to withdraw a written or oral opinion or representation previously given by the lawyer and reasonably believed by the lawyer still to be relied upon by a third person, where the lawyer has discovered that the opinion or representation was based on materially inaccurate information or is being used to further a crime or fraud;
(4) to secure legal advice about compliance with these Rules or other law by the lawyer, another lawyer associated with the lawyer’s firm or the law firm;
(5) (i) to defend the lawyer or the lawyer’s employees and associates against an accusation of wrongful conduct; or
(ii) to establish or collect a fee; or
(6) when permitted or required under these Rules or to comply with other law or court order.

NY RPC 1.18 makes 1.6 apply to prospective clients.

This attorney might argue his second “I quit” press release was correct under 1.6(b)(3) above. But the problem is that his first run-to-TV moment was the one he should not have undertaken. It appears he did little to no investigation before running to the press. If he had, chances are he would have had a good chance of finding whatever falsity he thinks he found between TV appearances that justified his dumping out on his client. Now, not only has he cast his client as a liar, her mother – who might have been a corroborating witness – as another liar – all prejudicial to the state’s case, if any existed, for an assault against her – but he also bolluxed any civil case she might have brought in the future.

I hope his malpractice insurance is paid up.

Beyond Deflategate: The NFL Season Begins

Hi there! How ya doing! Because I have been oppressed with this Tom Brady porn bullshit from blog partner and sister, that Wheel person. Very ugly and unnecessary. But I am going to let it stand for all of posterity, not to mention both of our posteriors. Still, you have to wonder when enough is enough (like when she hijacked my last post).

I used to love her, but….

So, enough about yer local riff raff, and about #Deflategate (which was bullshit from the inception) let’s get on to the game at hand. That would be the Patriots versus the Steelers.

Yes, Brady has a giant chip on his shoulder. Yes the Pats are defending Superbowl champs and Big Ben and the Steelers are not. Nevertheless, this is one hell of a season opening game. In fact, it is pretty hard to imagine a better one under the circumstances. Say what you will about how any got there, there are only a precious few at the top of all time winners in the Super Bowl era. They include the Steelers and Pats. And, yes, the Steelers, for all the Pats glory in the last 15 years, are still winning that overall matchup. The 49ers, Packers, Cowboys and Gents are totally in there, but the more recent elite are pretty clear.

So, here we are. Steelers have Big Ben and….what? Ben Roethlisberger and Antonio Brown are as good a duo as you can get. But without Bell, who is suspended, in the backfield, that is going to place some extra pressure on the Steelers offense. A face Bill Belichick undoubtedly knows. By the same token, the Pats pass defense rests on a backfield without either Darrell Revis of Brandon Browner. Pretty easy to see Malcomb Butler continuing to become a stud above and beyond his one play Super Bowl XLIX heroics, but similarly hard to see there not being some early hiccups in that road. Would not want to be Butler on Antonio Brown tonight.

But will DeAngelo Williams, who will sub for Bell and Cody Wallace, who is subbing for center Maurkice Pouncey, be able to pick up the slack? Yes, I think so, but not nearly enough.

That said, the Patriots are without LeGarrette Blount, due to a one game suspension. I think that Dion Lewis (who is potentially breakout star) and Travaris Cadet will come out of nowhere to semi-carry the load. So, both sides have some issue at running back, but, hopefully, capable backups. I’d give a slight edge to the Pats, but by a VERY slight margin.

We all know the QB’s on these two respective teams. They are both great. Hard to see an edge here other than the psychological harden that Brady may have. But I am not putting that much in that, Ben will come to play too.

Comes down to defense. Call me crazy, and probably you should for this, but I think the Pats have the edge on the new, dick LeBeau-less, and untested, Steeler’s defense. Troy Polamalu and Ryan Clark ain’t walking through that tunnel. Especially so with the questions in the Pittsburgh offensive line. If there is a win here, that, and a pissed off Brady, are where I see it. And that is where I see it, the Steelers are good, but the Brady’s come out roaring and winning tonight. don’t make me regret this Deflators!

So, there you have it. #Deflategate is still a legal pile of dubious garbage manufactured, as is now even more clear, by an arbitrary and capricious, if not arrogantly craven, Roger Goddell and the NFL. We shall deal with that more later. For now, trash it up and let loose the dogs of football war.

And that is that. On top is an incredible Taiwanese animation on the latest ESPN slanted bunk trying to give cover to the NFL for #Deflategate. It’s really awesome. Lower is one of my newest favorite bands, this one from down under, specifically Perth, Boom! Bap! Pow! Yeah, that is their name, and they are killer.

The real football season is upon us folks, rip this joint.

The Deflategate Decision: Brady Has Been Freed!

Screen Shot 2015-09-03 at 11.32.25 AMemptywheel sez: We interrupt this in depth legal discussion to point out that the WOLVEREENIES ARE BACK!!


Better still, they’ve got unbeatable juju going into tonight’s game against Utah. That’s because (unreported among all the other less important Deflategate legalisms) the Wolvereenies have ALREADY worked together to score today.


That’s right.

You see, Jay Feely and Tommy Brady combined to score a point in Judge Berman’s decision today. On Monday, former UM kicker Jay Feely ’99 testified on behalf of former UM QB Tom Brady ’00 (just like me!!!). Feely explained about how when the Jets got busted for fucking with their balls in 2009 — in a game against Division rivals the Pats, against Tom Brady — he, the kicker who allegedly benefitted from the improperly doctored balls, faced no punishment.

If you’re not going to punish Jay Feely, Judge Berman suggested, you can’t punish Tommy Brady. At least, you can’t expect Tommy to think he’ll get punished, because his college buddy didn’t in the equivalent situation.

Anyway this is surely a great omen for the Wolverines and their new savior Jim Harbaugh.

So go Blue!

Deflated BallWell, at long last love, the #Deflategate decision from Judge Richard Berman in SDNY is in, and the big winner is Tom Brady.

The 40 page full decision is here

One key line in the decision on the general right of the court to set aside an arbitration is:

“The deference due an arbitrator does not extend so far as to require a district court to countenance, much less confirm, an award obtained without the requisites of fairness or due process” (citing Kaplan v. Alfred Dunhill of London, Inc.)


I previously did a very partial background on the case, and how it germinated from blatantly false information (still uncorrected and/or withdrawn) from Chris Mortenson and ESPN. The bottom line is the NFL’s position was that the Commissioner, Goodell, simply has the power to do whatever he wants under Article 46 of the NFL/NFLPA collective Bargaining Agreement (CBA).

The Players Association, on behalf of Tom Brady, makes four core arguments in seeking to vacate Goodell’s arbitration decision:

1) There was not actual notice to Brady of prohibited conduct and that he could be suspended for it (See here for a further description)

2) That there were not adequate and reliable standards for testing game balls, and therefore punishment based on the same is unreasonable

3) That Goodell was a blatantly partial arbitrator, and

4) That the arbitration process lacked fundamental fairness in that key witness testimony and evidence was unreasonably denied to Brady and the NFLPA (See here for a further explanation).

Frankly, Brady is arguably entitled to a decision in his favor on all four. What Berman did is, primarily, rely on the first ground, notice with a backup of ground four, lack of fairness from denial of the Pash testimony and investigative notes.

CN_SebJWIAUg8iYThe critical language from the decision is:

The Award is premised upon several significant legal deficiencies, including (A) inadequate notice to Brady of both his potential discipline (four- game suspension) and his alleged misconduct; (B) denial of the opportunity for Brady to examine one of two lead investigators, namely NFL Executive Vice President and General Counsel Jeff Pash; and (C) denial of equal access to investigative files, including witness interview notes.

So, there you have it, please feel free to unpack this further in comments. This is a momentous decision, not just for Brady and the NFL, but, as I explained in my earlier post, for collectively bargained labor in general. There is a lot of importance here to much more than Tom Brady. Though Brady is certainly the big winner today.

Brady is free! For now anyway, it is nearly a certainty that the NFL will appeal to the 2nd Circuit and we will go through this all again.

ESPN Is Gutless, Chris Mortenson Has Tiny Deflated Balls and Other Deflategate Trash Talk

Hi there! Been a while, hope this account still works and State Secrets or something has not overcome due process on this here blog.

So, here we are in the waning days of summer. I would have written more about the Formula One Circus but, frankly, it has mostly bored the heck out of me this year. The, still, best driver in F1 is stuck in a crappy underperforming McLaren and has to drive his ass off and hope for attrition to even score a point. That would be Fernando Alonso if you haven’t guessed. While lesser drivers, with far better machinery, you know, those like the two insolent crybabies at Mercedes, have such superior equipment that they wrongfully think they are kings. It is all enough to make an old school fan like me puke. Well, enough about the circus, let’s get to the real meat and potatoes of this blog’s sports coverage, the NFL.

As you may have heard, there is a little kerfuffle called #Deflategate that has been going on since before the last SuperBowl. On one side, we have an arrogant all powerful giant human jackass (no, not Dick Cheney this time) named Roger Goodell, and on the other, we have the epitome of bright and light, the All American Hero, and lover of supermodels, Tom Brady. If you think this is not a fair fight, and Brady is the clear winner, advance and collect your winnings.

Okay, back to Chris Mortensen’s apparently shriveled journalistic balls. Let me be clear, this is just opinion (even if putatively well founded opinion), but what kind of “balls” does a man who is spoon fed lying ass bullshit by “NFL Sources” in the form of a tweet that said:

The NFL found 11 of the Patriots’ 12 game balls for Sunday’s 45-7 AFC Championship Game win over the Indianapolis Colts were under-inflated by two pounds per square inch each, league sources told ESPN’s Chris Mortensen on Tuesday.

Obviously, as the actual testing (not to mention the late great “Wells’ Report) confirmed, that was an outright giant flaming LIE. Call it what it is, it was not a minor discrepancy, it was an outright flaming lie. A lie that led directly to the public outcry that begat what we now know as the multi-million dollar boondoggle bullshit “#Deflategate”.

Peter King (no, not the militant chickenhawk moron from Long Island, the other one from Sports Illustrated) was fed the same blatant inflammatory lie by what appear to be NFL officials, but King had the balls, and intellectual integrity, to apologize.

Did Chris Mortensen or THE WORLDWIDE LEADER, ESPN, have the intellectual and moral integrity to apologize? No, of course the craven bastards did not. In fact, Mortensen silently deleted his original tweet. What a gutless and tiny balled coward. And ESPN has proved itself to be an oppressive behemoth that is willing to put itself, and its allegiance to the NFL, above their journalistic ethics. How pathetic.

That blatantly false report germinated the entire waste of time that is now #Deflategate. Seriously, without Mortensen’s and ESPN’s relentlessly trumped up and featured false report, tagged on by King and SI, there would simply never have been #Deflategate. But it was clearly something the NFL wanted pushed, and they got their want, one way or another. Oh, by the way, is there further evidence that ESPN and Chris Mortensen may be dishonest news sources without a shred of credibility? Yes, yes there is. Mortensen reported that the Kraft family and Patriots had apologized to him. Was that true? No, according to the Krafts on behalf of the Patriots, that was blatantly false.

Here is the thing: #Deflategate is a house of cards built on a pile of dung. If you have an iota of concern for fundamental fairness and due process, you ought be offended – even if this is only a civil labor law mess involving millionaires against billionaires. It all matters, and the labor law principles in play here are beyond critical to all union workers and collective bargaining agreements, not just those of rich athletes. So, yeah, don’t kid yourself, this matters. A lot. If Tom Freaking Brady cannot get fundamental fairness and due process on a collectively bargained agreement, how the hell do you think a UAW, Teamster, teacher, or any other union member will? If you haven’t noticed, labor in this country is under direct attack. Don’t be the guy (or girl!) that aids that attack just because this iteration of the conflict involves Tom Brady and/or rich athletes. This matters, both in general as to all workers under labor agreements, and to your hometown sports teams and players too.

So, there you have Chris Mortensen and his tiny disingenuous balls, but what about some overall facts and law on #Deflategate? Got you kind of covered. And this is especially timely since the last big actual live court day is coming up on Monday, August 31st. So, here we go with some various background resources for you. If you are interested, please read them, you will be better informed. If not, that is cool too, but understand there are very good reasons I take the stances I have on #Deflategate. Off we go!

Soooo….where to start? How about a prediction, you want a prediction?? Sorry, don’t have one. BUT, I will say this, I have read most of the transcripts and filings, and I do not subscribe to the thought that Judge Richard Berman’s clearly antagonistic position to the NFL/Goodell side is all posturing trying to force a settlement. Is there some of that going on? Trust me, almost certainly. By the same token, by my experience, and I have a little, there is simply no way Berman is being as consistently pointed and dubious of one side, the NFL/Goodell, as he has been without being convinced their argument is lame. Yes, judges often play “devil’s advocate”, but what Berman has engaged in strikes me as well beyond that.

So, while I won’t make a prediction, the Brady/NFLPA side must feel pretty positive about how it has gone so far. I am understating that a little.

So, on what grounds do I think Brady and the NFLPA may win on? Two grounds – 1) Notice and 2) Process denial regarding evidence and witnesses by the NFL, to wit, Jeff Pash and related evidence.

First off, the “Notice” argument. A new net friend I have met in this process, but one I greatly respect, Dan Werly, has summarized “Notice” quite well here.

Then there is the “Pash preclusion”. Jeff Pash is the General Counsel to the NFL. He is also its Executive Vice President. Those are not necessarily copascetic if a corporate entity wants to maintain even the reduced semblance of “attorney/client privilege” of having a “corporate counsel”. Seriously, this kind of privilege comes close to vapor when you commingle your attorney with corporate leadership. But that is exactly what the NFL has done here, and much more. And that is peanuts compared to the fact that the NFL made Pash the effective, really de facto, co-independent “investigator” (they even stated it in a press release) along with Ted Wells and then gave Pash editorial control over the so called “Independent Wells Report”. then Goodell refused to make Pash available for testimony, stating that he was irrelevant and privileged.

Ooops, did the arrogant Goodell and the NFL bugger their own ruse beyond belief as to Pash? Yes, and it is crystal clear. Even Judge Berman was incredulous.


Then, later…


Yes, arbitration decisions are given “great deference” by courts, and generally are not disturbed. But they can be when they present genuine issues of fairness and partiality. #Deflategate may be a silly case to most of the lay public, but these are serious and critical issues in labor law, and if the exacerbated issues in the Brady case cannot be addressed by a court, then pretty much no labor arbitration can ever be. For a far more detailed explication of the Pash problem, see this outstanding piece by Ian Gunn.

I invent the wheel only when I need to (and mostly when clients pay me to); I try to not do so when it has already been done by worthy people before me. Dan Werly, Dan Wallach, Michael McCann, Brian Holland, Alan Milstein, Raffi Melkonian and Ian Gunn are folks that did the hard lifting while I was, mostly, away frolicking at the beach in La Jolla when the most critical filings came out. All fantastic people that I came to know because of Roger Goodell’s #Deflategate folly. Hat’s off to them, as well as Stephanie Stradley with some fantastic early scene setting. These are all serious people that you should follow, not just for #Deflategate, but for any sports related law and thought. I think all, including me, feel Brady and the Players Association have the far better hand, in both posture and presentation, than Goodell and the NFL. Really, it is not even close, though there is no telling what Berman will do in the end. By this time next week, we will know.

Welp, I may have focused on #Deflategate more than I intended. Or not. This post was meant as an acerbic discussion point, not a full on explication, which would have consumed thousands of additional words. F1, and sports in general have just been boring lately, as you can tell by how often I have bothered to write about them. But the legal machinations in #Deflategate have been fascinating, at least to me. The All American boy Brady, the Boris Badanov evil Goodell, the flamboyant crusading Player’s Association lawyer Jeffrey Kessler, the Snidely Whiplash Ted Wells to the calm but annoyed judge Richard Berman. The characters are all there.

So, that’s it. Rock on lug nuts. Trash talk like you are Michael Jordan. Do it up. But, if you don’t agree with my #Deflategate thoughts, you can send some Dead Flowers. By the US Mail. And don’t forget the roses…

FDL: Looking At Things As They Were; Dreaming Of Things That Never Would Be

UnknownThere are multiple better voices here to address the apparent demise of Firedoglake, whether briefly or at length. I was, in a way, an interloper by chance. By fortune, actually. Because I was asked, for inexplicable reasons I will never fully understand, but will always treasure, to join Emptywheel when it morphed from The Last Hurrah into the Emptywheel blog at Firedoglake. Yes, I had been a decent contributor to both Next Hurrah, and, often, FDL, but still it was a bit of a shock when it came.

I can honestly say I, as a result, encountered some of the finest and most genuine people in my life. That happened because of FDL, both as to the lifetime friendships with people that are here with us, including, most notably, Marcy, and all the others. Marcy, Rayne, Jim White, Ed Walker, Rosalind….and, please, let us not forget Mary and some of the others no longer here. All that came, at least for me, out of seeing Scooter Libby coverage early on nearly a decade ago. At FDL.

This medium may be digital, but it has wings and real life beyond the URL’s and binary code or whatever. The people I have met and interacted with as a result of being around FDL were, with little exception, remarkable, intelligent, wonderful and I think the world has been made better by them.

So, to Jane Hamsher, Christy Hardin Smith, Siun, Pachacutec, Richard Taylor, Karl, Suzanne, Bev Wright (Bev and Book Salon was one of the most awesome things ever), Ellie, each and every one of the fantastic moderators who were the ones who kept the enterprise really alive for so long, and a host of others that allowed me to participate with them, thank you. There are too many to list, and I love one and all. You will all be missed, and I apologize to the too many other friends I met there and have not listed. You know who you are, and thank you.

I am starting to see eulogies all over the web, and most are quite decent. FDL was right, and early so, about the rule of law, the Cheney Administration, torture, surveillance, marriage equality and ACA/Obamacare, just to name a few of the plethora of topics breached on her pages. The voices have not died, but, now, the common enterprise has.

I will leave it to others to say where exactly FDL fits into the hierarchy and history of the blogosphere, but it was certainly up there. Thanks, and vaya con dios FDL.

Update, from emptywheel: bmaz forgot to mention DDay, but I’m certain it was an oversight.

A Tale of Celebrity Bon Vivant Civil Servants and Access Journalism

Screen Shot 2015-07-02 at 12.27.12 PMThere is a distinct problem in this country with excessive inbreeding of politicians, lobbyists and journalists. In a country where so many are now ruled by so few in power, it is becoming, if not already become, the biggest threat to American democracy. I would add in corporations, but, heck, who do you think the politicians, lobbyists and journalists represent at this point?

Now, corporations and their money through their mouthpiece lobbyists have long had a stranglehold on politics, whether through the corps themselves or their wealthy owners. But the one saving mechanism has historically been claimed to be the “Fourth Estate” of the American press who were there on behalf of the people as a check on power. But what if the Fourth Estate becomes, in fact, part of the power? What then?

What if the crucial check on federal and state power is by journalists who are little more than stenographers clamoring for access and/or co-opted social friends and elites with the powers that be? What if the sacrosanct civil servants of this country are nothing but Kardashian like shills out for a free gilded ride before they leave office to cash in with private sector riches befitting their holiness?

Golly, if only there was an example of this incestuous degradation. Oh, wait, get a load of this just put up by Kate Bennett’s KGB File at Politico:

In a generally stay-at-home administration, one member of the Obama Cabinet is proving to be the toast of the town. Jeh Johnson, the oh-so-serious-on-the-outside secretary of Homeland Security, is fast becoming Washington’s No. 1 social butterfly, dining out at posh restaurants like CityCenter’s DBGB, as he did last week with a small group that included Amy Klobuchar, Steny Hoyer, CNN’s Jim Sciutto, the New York Times’ Ashley Parker, author Aaron Cooley, and lobbyist Jack Quinn and his wife Susanna.

For a guy who’s been running a 24/7 war against terror since 2013, Johnson seems to have a lot of time to trip the light fantastic. He can often be seen enjoying regular catch-up sessions with BFF Wolf Blitzer at Café Milano (back table, naturally); and mingling at black-tie soirées, such as the Kennedy Center Spring Gala, the Opera Ball, or a champagne-fueled VIP garden party at Mount Vernon to toast French-American relations, all of which Johnson attended—and stayed at beyond the requisite cocktail-hour schmooze.
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“There’s rarely an invitation he’ll turn down,” says an aide to Johnson, who prefers to remain anonymous, of his boss’s penchant for spending three-to-four evenings a week at social functions — and actually enjoying them.

I am not going to bother to dissect that, it speaks all too clearly for itself. And it is hard to figure which is more pukeworthy, the bon vivant civil servant or the elitism displayed by the supposed watcher last bastion journalists. It is all of the same cloth.

What’s wrong in Washington DC? Here you go. When the pathology on the boneyard of American democracy is run, this vignette will appear.

Maybe this is why Tom Vilsack could find a spare couple of hours out of one of his days to explain in a deposition why he and the Obama Administration knee jerkily demanded Shirley Sherrod’s resignation based upon a crank fraudulent video by a schlock like Andrew Breitbart.

Because “Executive Privilege” now means “Privileged Executives” who can party all night with their elitist journalistic pals and screw the rest of the government, and people it serves, during the day. Just like the Founders envisioned obviously.

Criminal Sexual Assault: No Means NO Burden Shifting

CryingJusticeLate last night here, early this morning where many of you are, I saw an article pop up on the New York Times website by Judith Shulevitz on “Regulating Sex”. The title seemed benign enough, but thanks to my friend Scott Greenfield, and his blog Simple Justice, Ms. Shulevitz has been on my radar for a while. So I sent the article (which is worth a read) to Scott knowing he would likely pounce on it when he got up.

And Scott did just that, in a post called “With Friends Like These”, while I was still comfortably tucked in:

A lot of people sent me a link to Judith Shulevitz’s New York Times op-ed, Regulating Sex. As any regular SJ reader knows, there is nothing in there that hasn’t been discussed here, sometimes long ago, at far greater depth. But Shulevitz is against the affirmative consent trend, which she calls a “doctrine,” so it’s all good, right?

What Shulevitz accomplishes is a very well written, easily digestible, version of the problem that serves to alert the general public, those unaware of law, the issues of gender and sexual politics, the litany of excuses that have framed the debate and the seriousness of its implications, to the existence of this deeply problematic trend. She notes that one of its primary ALI proponents, NYU lawprof Stephen J. Schulhofer, calls the case for affirmative consent “compelling.” She neglects to note this is a meaningless word in the discussion. Still, it’s in there.

On the one hand, I think Scott is right that there is really nothing all that new here in the bigger picture, and, really he is right that Ms. Shulevitz is far from a goat, even if a little nebulous and wishy washy.

No, what struck me like a hammer was the ease with which academics like Georgetown’s Abbe Smith and NYU professor Stephen J. Schulhofer, not to mention the truly formidable American Law Institute (ALI) are propagating the idea of alteration of criminal sexual assault law. In short, are willing to put lip gloss on the pig of shifting the burden of proof on a major felony crime of moral turpitude.

And it is an outrageous and destructive concession. This is not a slippery slope, it is a black ice downhill. You might as well be rewriting the American ethos to say “Well, no, all men and women are not created equal”. In criminal law, that is the kind of foundation being attacked here.

Scott did not really hit on this in his main post, but in a reply comment to some poor soul that weighed in with the old trope of “gee, it really is not too much to give” kind of naive rhetoric, Mr. Greenfield hit the true mark:

The reason I (and, I guess, others) haven’t spent a lot of time and energy providing concrete examples is because it’s so obvious. Apparently, not to everyone. So here’s the shift:

Accuser alleges rape because of lack of consent, saying: “He touched me without my consent.” That’s it. Case proven. Nothing more is required and, in the absence of a viable defense, the accused loses.

Now, it’s up to the accused student to prove, by a preponderance of the evidence (which means more than 50%) that there was consent. There was consent at every point in time. There was clear and unambiguous consent. And most importantly, that the accused’s assertion of consent somehow is proven to be more credible than the accuser’s assertion of lack of consent.

Let’s assume the accuser says “I did not consent,” and the accused says, “you did consent.” The two allegations are equally credible. The accused loses, because the accuser’s assertion is sufficient to establish the offense, and the burden then shifts to the accused, whose defense fails to suffice as being more credible than the accusation.

Mind you, under American jurisprudence, this shifting compels the accused to prove innocence, which is something our jurisprudence would not otherwise require, merely upon the fact of an accusation, or be peremptorily “convicted.”

Is that sufficiently concrete for you?

Yeah, and do you want that star chamber logic in not just public university settings, but embedded with a solid foothold in common criminal law? Because those are the stakes. Constitutional law, criminal law, and criminal procedure are not vehicles for feel good patina on general social ills and outrages de jour, in fact they are instead designed, and must be, a bulwark against exactly those people who would claim the former mantle.

First they came for the Fourth and Fifth Amendments, and you poo poohed the cries from criminal defense lawyers, going back to at least the mid-80’s, about the dangerous slippery slope that was being germinated. Whether the results have touched you, or your greater “family”, yet or not, it is pretty hard to objectively look at today’s posture and not admit the “slippery slope” criers thirty years ago were right. Of course they were.

People operating from wholly, or mostly, within the criminal justice system, whether as lawyer or client/family, just have a different, and more immediate, perspective. A position rarely understood without having tangible skin in the game.

Maybe listen this time. The battle over racial and sexual equality is far from over, but it is well underway intellectually, and headed in a better direction. It gets better. So, make it better in criminal justice too, do not let it be the destructive war pit morality betterment in the US falls in to.

Beautiful Equality Comes To Marriages In America

Screen Shot 2015-06-26 at 8.10.49 AMLove will find a way, and it finally has. There are many, many friends I am thinking of right now, and they all know exactly who they are. Congratulations, and it was far too long coming. Here is the opinion.


There is so much to say, that it is hard to know what to actually say. There are many quotes like this one, but it is indicative of the decision:

“laws excluding same-sex couples from the marriage right impose stigma and injury of the kind prohibited by our basic charter.”

What I don’t find in the majority decision, as wonderful as it is, is discussion of heightened scrutiny, strict scrutiny, or other clear cut, across the board protection for the status of sexual identity. And that is disappointing. Also why I cried bit when SCOTUS, two years ago to this very day, callously refused to take the incredibly wonderful tee shot that Vaughn Walker gave them in the Proposition 8 case previously.

I guess the handwriting was on the wall when even the old liberal lion Steve Reinhardt, a man I have met, and a judge I truly love and revere, pulled up short and did not have the balls to take the root concept of sexual identity “equality” where it naturally flowed when he had the pen in his wise hand. But he didn’t then, and his old friend Tony Kennedy has not today.

So, while there is so much to cheer right this moment, we, and this country, are still far from where we need to be with regard to inclusion of all our citizens in the concept of equality. It is more than black and white, it is straight, gay and trans too. We are all on this patch of earth together, and we all are equal, and that needs to be admitted legally by the highest court in the land and understood by all the people it serves.

So, there are still miles to be traveled. Let the four, count them four, spittle laced, bigoted, backwards, and disgusting dissents in the Obergefell decision speak for themselves. Honestly, they make me want to puke. For all that were celebrating the enlightened liberal thought of Chief Justice John G. Roberts yesterday, today is a rough reminder of who and what he really is. And you really have to read Scalia and Alito to understand the fucked up pathology of the dissenters. Wow.

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Emptywheel Twitterverse
JimWhiteGNV @emptywheel Returning to reality sucks.
emptywheel @JimWhiteGNV Whatup, dude? Our overperforming teams flopped on the same day?
bmaz @emptywheel @MasaccioEW @laRosalind But the Pac is so stupid this year, I seriously think USC may beat the Tree in Conf Champ game.
bmaz @emptywheel @MasaccioEW @laRosalind Probably not, but hope is still alive! It ain't over till it's over.
emptywheel @bmaz Stanford's not a player, in spite of McCaffrey's best efforts. @MasaccioEW @laRosalind
JimWhiteGNV Well, that was painful.
emptywheel In 47minutes one tiny fraction of the NSA dragnet will end.
bmaz @MasaccioEW @emptywheel @laRosalind Iowa and Stanford
emptywheel @astepanovich Yup, but this is an area where raising it might make Americans care. @normative @kurtopsahl @justiceunited
emptywheel @astepanovich In any case, making that distinction is important for intl rights... @normative @kurtopsahl @justiceunited
emptywheel @astepanovich More importantly, under FISA. We know--they've told us--they collect under 12333. @normative @kurtopsahl @justiceunited
emptywheel @MasaccioEW Um. I believe the B1G gets a bid, no? @bmaz @laRosalind
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