Vaughn Walker Issues Final al-Haramain Opinion on Damages and Attorney Fees

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As you may recall, Chief Judge Vaughn Walker of the Northern District of California (NDCA), who has handled two of the most critical and transcendent litigations of the last decade, Perry v. Schwarzenegger and al-Haramain v. Bush/Obama, is retiring. Today, he has issued his last big opinion left on his table pre-retirement, the ruling on damages to be awarded Plaintiff in al-Haramain, assignment of attorney fees to Plaintiffs, and whether or not to impose punitive damages against the government for their offending illegal conduct.

The government, in its brief objecting to the Plaintiffs’ proposed form of judgment, basically poked the court in the eye with a stick by continuing their obstreperous refusal to accept the court’s jurisdiction over their assertion of state secrets, continued to argue there were no facts competently of record despite Walker’s crystal clear determinations to the contrary, and denied that Plaintiffs were entitled to attorney fees or punitive damages. They just say NO. The Plaintiffs went on to properly lodge their calculation of damages, detailed request for attorney fees and affidavit in support thereof. Plaintiffs al-Haramain, separately, filed a very compelling brief on why the court should award them punitive damages against the government. The government, of course, objected some more.

As lead Plaintiffs counsel Jon Eisenberg stated in the punitive damages brief:

Defendants abused the extraordinary power of the Executive Branch by committing unlawful electronic surveillance of the plaintiffs with full knowledge of, and in flagrant disregard for, determinations by top officials in the Department of Justice (DOJ) that the surveillance lacked constitutional or other legal support. Defendants sought to put themselves above the law, in the manner of a monarch. That is a profound abuse of America’s trust. It calls for strong medicine.

And thus it all comes down to today’s decision by Judge Walker, and here is the full text of his 47 page order.

In short, Walker has ordered that Plaintiffs Wendell Belew and Asim Ghafoor (a-Haramain’s attorneys wrongfully surveilled) receive $20,400.00 each in liquidated damages. Walker denied damages to al-Haramain itself. In regards to punitive damages, Judge Walker has denied in full Plaintiffs’ request. As to attorney fees, the court grants the motion as to Plaintiffs Ghafoor and Belew only (again, not as to al-Haramain itself, and awards attorney fees and expenses in the amount of $2,537,399.45.

There is a lot to chew on in this order, and both Marcy and I will be coming back to do just that after chewing and digesting it further. But so far, it is clear that the court sided completely with the plaintiffs on compensatory/liquidated damages, giving Belew and Ghafoor every penny they asked for and finding the government’s opposition meritless. This passage by the court is telling: Read more →

Crist’s Morrison Pardon: 21st Century Fox In A Lizard King’s Henhouse

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Hey, being pretty much a sentient life long Doors aficionado, I am all in with pardoning Jim Morrison, which there has been a flurry of scuttlebutt emanating, cool and slow, with a backbeat narrow and hard to master, out of the instant swamps of Florida, regarding.

Oh, and when I heard the subject brought up by the patently unhip, plodding Blue Dog, holier than thou, I’m a better Democrat than you, scold Larry O’ Donnell on his craptastic bloviathon MSNBC show, that was just too fucking much. The backdoor rumor is Charlie Crist, who may or may not have eaten more chicken that a man has eve seen, is pondering giving the Big Scooter Libby Get Out Of Jail Free card to the Most Right Reverend Snake King Jim Morrison.

Outstanding. And long over due. Because if some fucking little germ boy, bear cage child threatening, functionally traitorous subservient to Cheney blank like I. Lewis “Scooter” Libby can get a walk from a complicit President of the United States in order to mask apparent criminal behavior, then why not a posthumous hall pass for James Douglas Morrison? Seriously.

If you are comparing and contrasting facts and circumstances, one was an entertainer who may or may not have, for a fleeting moment, exposed himself in 1969 to a Miami audience at the end of a Doors concert that truly could not only have cared less, but were bummed they had not done so earlier. The other, Cheney’s toy Scooter, conspired to expose and out a classified top CIA clandestine agent working on the most critical issue of the day, the existence of nuclear and/or weapons of mass destruction in Iraq and/or Iran. You know, the fraudulent reason the very same Mr. Cheney and wooden operated mouthed George Bush relied on to affirmatively, aggressively and illegally start a war against Iraq for the sins of 9/11 that Iraq not only did not commit, but had actual avarice for the people who did.

That Scooter Libby.

So, if Scooter Libby can skate and, in the process, serve as a firewall for the immorality and illegality of the Bush/Cheney Administration, there is no reason the Lizard King should not be posthumously exculpated.

No tears, no fears, but a lot of ruined years. Charlie Crist made clear intimations he wanted to do this when he took office. Being a gutless politician at heart he, of course, never did it as Governor of the rockin state of Florida. Instead he cowered to the perceived sensabilities of the people in rockin chairs. And lost his ass, soul and electability in the process. Douchebag. Crist is toast. But if he wants to belatedly clean up the halls of the Morrison Hotel, well then I am all for that. Mr. Mojo is rising; Charlie Crist is not. Lizard Kings rule; political blanks drool.

We have constructed pyramids in honor of this escaping. Let the spirit of Mr. Mojo fly Mr. Charlie Crist. It is about the only thing of merit, morals and guts you can do at this point. Get on with it you ineffectual political chameleon stale fish.

Are Obama and Congress Set To Screw American Counties, Homeowners and Give Wall Street Mortgage Banksters a Retroactive Immunity Bailout?

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There are rapidly emerging signs the Obama Administration and Congress may be actively, quickly and covertly working furiously on a plan to retroactively legitimize and ratify the shoddy, fraudulent and non-conforming conduct by MERS on literally millions of mortgages.

From CNBC:

When Congress comes back into session next week, it may consider measures intended to bolster the legal status of a controversial bank owned electronic mortgage registration system that contains three out of every five mortgages in the country.

The system is known as MERS, the acronym for a private company called Mortgage Electronic Registry Systems. Set up by banks in the 1997, MERS is a system for tracking ownership of home loans as they move from mortgage originator through the financial pipeline to the trusts set up when mortgage securities are sold.

Just to make clear the implications of this craven action, the White House and Congress are conspiring to give a get out of jail free bailout card to the biggest banks and finance companies in the country to cover up and mask their illegal behavior and behavior that did not conform with state, county and local laws throughout the United States. On at least sixty (60%) percent of the existing mortgages in America.

There are dozens of implications to individuals and both private and public entities. At a root minimum, it will likely decimate, if not bankrupt, most counties in every state of the union.

If courts rule against MERS, the damage could be catastrophic. Here’s how the AP tallies up the potential damage:

Assuming each mortgage it tracks had been resold, and re-recorded, just once, MERS would have saved the industry $2.4 billion in recording costs, R.K. Arnold, the firm’s chief executive officer, testified in 2009. It’s not unusual for a mortgage to be resold a dozen times or more.

The California suit alone could cost MERS $60 billion to $120 billion in damages and penalties from unpaid recording fees.

The liabilities are astronomical because, according to laws in California and many other states, penalties between $5,000 and $10,000 can be imposed each time a recording fee went unpaid. Because the suits are filed as false claims, the law stipulates that the penalties can then be tripled.

Perhaps even more devastatingly, some critics say that sloppiness at MERS—which has just 40 full-time employees—may have botched chain of title for many mortgages. They say that MERS lacks standing to bring foreclosure actions, and the botched chain of title may cast doubts on whether anyone has clear enough ownership of some mortgages to foreclose on a defaulting borrower.

Why would the Obama Administration and Congress be doing this? Because the foreclosure fraud suits and other challenges to the mass production slice, dice and securitize lifestyle on the American finance sector, the very same activity that wrecked the economy and put the nation in the depression it is either still in, or barely recovering from, depending on your point of view, have left the root balance sheets and stability of the largest financial institutions on the wrong side of the credibility and, likely, the legal auditory line. And that affects not only our economy, but that of the world who is all chips in on the American real estate and financial products markets.

What does that mean to you? Everything. As quoted above, even the most conservative estimate (and that estimate is based on only a single recording fee per mortgage, when in reality there are almost certainly multiple recordings legally required for most all mortgages due to the slicing, dicing and tranching necessary to accomplish the securitization that has occurred) for the state of California alone is $60 billion dollars. That is $60,000,000,000.00. California alone is actually likely several times that. Your county is in the loss column heavy from this too.

Where will the roads come from? Where will the county courts, judges and prosecutors come from? The Sheriffs? Who will build and maintain the bridges, parks and public works entities? Removal and obviation of this funding mechanism may literally kill any and every county.

That is without even going into the real and myriad effects on individuals, families and communities. This is a death knell to the real property system as we have always known it and the county structure of American society as we have known it. And millions of people will have lost the ability to benefit from the established rule and process of law that they understood and relied on. After the fact. Retroactively. So Obama and Congress can once again give a handout and bailout to the very banks and financial malefactors that put us here.

Obama and the Constitutionality of DADT and Other LGBT Discrimination

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After nearly two years of ignoring, scorning, demeaning and lecturing the progressive blogosphere that provided substantial and critical portions of the fuel propelling him into office, President Obama suddenly found time to sit down with five carefully chosen token representatives of the unwashed dirty hippy community five days before the coming mid-term election. An election increasingly looking quite catastrophic to his own Democratic party, and due in large part to his performance and policy selection in office. How thoughtful of Mr. Obama to finally have a dialect with his base now that he is desperate and less than a week out from the electoral tsunami.

Courtesy of Duncan Black (Atrios), one of the participants, here is a transcript of the festivities. You can draw your own conclusions as to how large of a dog and pony show this was, but I would like to focus on the portions of the meeting dealing with LGBT discrimination and the government’s relentless DADT policy.

Asked by Joe Sudbay of Americablog whether he actually had any real plan to accomplish passage of repeal legislation for DADT, Obama responded:

…And my hope is that will culminate in getting this thing overturned before the end of the year.

Now, as usual, I need 60 votes. So I think that, Joe, the folks that you need to be having a really good conversation with — and I had that conversation with them directly yesterday, but you may have more influence than I do — is making sure that all those Log Cabin Republicans who helped to finance this lawsuit and who feel about this issue so passionately are working the handful of Republicans that we need to get this thing done.

….

You’re financing a very successful, very effective legal strategy, and yet the only really thing you need to do is make sure that we get two to five Republican votes in the Senate.

And I said directly to the Log Cabin Republican who was here yesterday, I said, that can’t be that hard. Get me those votes.

Asked to describe his plan to pass critical legislation he has long promised one of his core constituencies, this is the pathetic drivel Barack Obama comes up with? The President of the United States and leader of the entire Democratic party pleads powerlessness to accomplish the goal, but demands the Log Cabin Republicans go forth and deliver him intransigent GOP Senators on a golden platter? Seriously, that is his plan? Perhaps Mr. Obama has mistaken the LCRs for the NRA or something, but if there is any entity with less sway over the entrenched and gilded GOP Senate leadership than Obama, it is the Log Cabin Republicans. Absurd and lame is too kind of a description for such tripe. I honestly don’t know what is worse, that this is Obama’s response or that he has the politically incompetence to state it on the record.

But there was more, oh yes there was more. Asked by Sudbay the straightforward yes or no question as to whether he considered DADT to be unconstitutional, the self proclaimed “Constitutional scholar” President came up with the following bucket of blarney:

And one of the things I’d like to ask you — and I think it’s a simple yes or no question too — is do you think that “don’t ask, don’t tell” is unconstitutional?

THE PRESIDENT: It’s not a simple yes or no question, because I’m not sitting on Read more →

Military Encroachment On Civilian Authority & Seven Days In May

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Via Digby comes this unsettling article by David Wood in Politics Daily about the growing militant contempt among military leadership for civilian authority and control.

The military officer corps is rumbling with dissatisfaction and dissent, and there are suggestions from some that if officers disagree with policy decisions by Congress and the White House, they should vigorously resist.

Officers have a moral responsibility, some argue, to sway a policy debate by going public with their objections or leaking information to the media, and even to sabotage policy decisions by deliberate foot-dragging.

This could spell trouble ahead as Washington grapples with at least two highly contentious issues: changing the policy on gays and lesbians in the military, and extricating U.S. forces from Afghanistan. In both cases, senior officers already have disagreed sharply and publicly with Defense Secretary Robert Gates and President Barack Obama, and in some cases officers have leaked documents to bolster their case.

…..

“The military officer belongs to a profession upon whose members are conferred great responsibility, a code of ethics, and an oath of office. These grant him moral autonomy and obligate him to disobey an order he deems immoral,” writes Marine Lt. Col. Andrew R. Milburn in Joint Forces Quarterly, an official journal published by the National Defense University under the aegis of the chairman of the Joint Chiefs of Staff.

That is especially true if his civilian leaders are incompetent, writes Milburn, who currently is assigned to the U.S. Special Operations Command in Stuttgart, Germany.

….

“When the results of bad decision-making are wasted lives and damage to the Nation; when the customary checks laid down in the Constitution — the electoral voice of the people, Congress, or the Supreme Court — are powerless to act in time; and when the military professional alone is in a position to prevent calamity, it makes little sense to argue that he should not exercise his discretion,” Milburn writes.

Read the entire article; please.

Now, there is no sense of any direct coup type of trend afoot in all this so much as an accelerating trend to the militarization of government and resigned acceptance by the Read more →

Unconstitutional Surveillance & United States v. U.S. District Court: Who The Winner Is May Be A Secret – Part 1

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[Given the current surveillance state situation in America, the Keith case, formally known as United States v. United States District Court, is one of the most important cases from our recent past. But I don’t really believe you can understand or know the law of a case, without really understanding the facts. The Keith case doesn’t have simple facts, but they are fascinating and instructive. So bear with me – this is going to take awhile, and will be laid out over a series of four posts. What follows today is Part I. – Mary]

It was a time of war. America had been attacked in the Gulf of Tonkin. The National Security Agency (NSA) and our military had reassured us this was true. Our national security apparatus, Congress and press had joined behind the office of the President to lead us into a series of forays (Vietnam, Laos, Cambodia) that would leave tens of thousands of American soldiers dead and many times that wounded physically or mentally, while at the same time decimating over three million Vietnamese and over a 1.5 million Laotians and Cambodians.

At home, we were working our way through the civil rights movement, dealing with the cold war and threats of Russian nuclear weapons and witnessing anti-war protests that left students dead and buildings bombed. Algeria was hosting U.S. fugitives from justice, Eldridge Cleaver and Timothy Leary, while Cuban connections were alleged to be behind much of the organized anti-war movement.

Court martial proceedings had begun for the My Lai killings with polls showing most of America objected to the trial. President Nixon would later pardon Lt. Calley for his role. A trial had also, briefly, seemed to be in the works for the “Green Beret Affair,” the killing of Thai Khac Chuyen by Green Berets running an intelligence program called Project GAMMA. The investigation began after one of the soldiers assigned to the Project became convinced that he was also being scheduled for termination. Charges in the Green Beret Affair would be dropped after the CIA refused to make personnel available, claiming national security privileges.

Against this backdrop, Nixon and his campaign manager – attorney general, John Mitchell (the only Read more →

Who We Are: Zeitoun and Camp Greyhound Five Years On

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In a country founded on “self evident truths” such as life, liberty, equality, and due process of law, the timeless quote from Ben Franklin speaks to the peril imposed when the founding principles are discarded or compromised:

Those who desire to give up freedom in order to gain security will not have, nor do they deserve, either one.

Yet, of course, since 9/11 that is exactly what the United States has done and what has resulted in return. Fareed Zakaria has a piece up at Newsweek speaking to the senseless and destructive madness that has consumed the US since the 9/11 attacks:

The error this time is more damaging. September 11 was a shock to the American psyche and the American system. As a result, we overreacted.

….

Some 30,000 people are now employed exclusively to listen in on phone conversations and other communications in the United States. And yet no one in Army intelligence noticed that Maj. Nidal Malik Hasan had been making a series of strange threats at the Walter Reed Army Medical Center, where he trained. The father of the Nigerian “Christmas bomber” reported his son’s radicalism to the U.S. Embassy. But that message never made its way to the right people in this vast security apparatus. The plot was foiled only by the bomber’s own incompetence and some alert passengers.

Such mistakes might be excusable. But the rise of this national-security state has entailed a vast expansion in the government’s powers that now touches every aspect of American life, even when seemingly unrelated to terrorism.

…..

In the past, the U.S. government has built up for wars, assumed emergency authority, and sometimes abused that power, yet always demobilized after the war. But this is a war without end. When do we declare victory? When do the emergency powers cease?

Conservatives are worried about the growing power of the state. Surely this usurpation is more worrisome than a few federal stimulus programs. When James Madison pondered this issue, he came to a simple conclusion: “Of all the enemies to public liberty war is, perhaps, the most to be dreaded, because it comprises and develops the germs of every other … In war, too, the discretionary power of the executive is extended?.?.?.?and all the means of seducing the minds, are added to those of subduing the force, of the people.

“No nation could preserve its freedom in the midst of continual war,” Madison concluded.

Indeed it is a chilling picture we have allowed our political “leaders” to paint us into, and Zakaria does not even hit some of the most disturbing impingements on due process and the rule of law such as the government arrogating itself the right to summarily execute American citizens with no judicial trial or due process whatsoever and the legal black hole that is Guantanamo and the Obama Military Commission and indefinite detention program. That is, as a nation, who and what we are today and it has bought us nothing except world scorn, geometrically more enemies, a plundered treasury, ignored and dilapidated domestic infrastructure, swelling joblessness and exploding income inequality.

But, hey, at least we have increased security and all those oppressive terrorist modalities are only for al-Qaida and the bad foreigners, right? No. The rot is now who we are, towards ourselves in addition to “them”. And that is where we finally get to the subject of the title of this post. Nothing demonstrates the deadly rot virus that has been injected into the blood of the American ethos than the story of Zeitoun. (more after jump) Read more →

BREAKING NEWS: Court Overturns Prop 8; Joy For Marriage Equality

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Yesterday’s anticipation has turned into today’s joy. Judge Vaughn Walker of the United States District Court for the Northern District of California (NDCA) has issued his verdict and, as predicted, he has found in favor of Plaintiffs Kristin Perry, Sandra Steir et. al. The court, in a historic opinion and verdict, has declared California’s Proposition 8 to be unconstitutional:

Plaintiffs have demonstrated by overwhelming evidence that Proposition 8 violates their due process and equal protection rights and that they will continue to suffer these constitutional violations until state officials cease enforcement of Proposition 8. California is able to issue marriage licenses to same-sex couples, as it has already issued 18,000 marriage licenses to same-sex couples and has not suffered any demonstrated harm as a result, see FF 64-66; moreover, California officials have chosen not to defend Proposition 8 in these proceedings.

Because Proposition 8 is unconstitutional under both the Due Process and Equal Protection Clauses, the court orders entry of judgment permanently enjoining its enforcement; prohibiting the official defendants from applying or enforcing Proposition 8 and directing the official defendants that all persons under their control or supervision shall not apply or enforce Proposition 8. The clerk is DIRECTED to enter judgment without bond in favor of plaintiffs and plaintiff-intervenors and against defendants and defendant-intervenors pursuant to FRCP 58.

Here is the full official decision and verdict and it is framed under both equal protection and due process.

The opinion is, again as predicted, extremely well written, consummately detailed, brilliantly structured and contains a foundation of extremely well supported findings of fact and conclusions of law. In short, Vaughn Walker has crafted as fine a foundational opinion as could possibly be hoped for, and one that is designed with the intent to withstand appellate scrutiny not just in the 9th Circuit, but in the Supreme Court as well.

Obviously this is but a step in the process because there will be appeals, and the case will, without question, go to the Supreme Court. But, that said, you could not ask for a better platform and posture for a case on this issue to go to the Supremes on. It is all that and more.

Additionally, regarding the Defendant-Intervenors’ request for a stay, Judge Walker has ordered as follows:

Defendant-intervenors (“proponents”) have moved to stay the court’s judgment pending appeal. Doc #705. They noticed the motion for October 21, 2010 and moved to shorten time. Doc #706.

The motion to shorten time is GRANTED.

Plaintiffs, plaintiff-intervenor and defendants are DIRECTED to submit their responses to the motion to stay on or before August 6, 2010, at which time the motion will stand

submitted without a hearing unless otherwise ordered.

The clerk shall STAY entry of judgment herein until the motion to stay pending appeal, Doc #705, has been decided.

There will obviously be a lot of further analysis and detailed discussion and dissection of Judge Walker’s opinion to follow, both at this blog and elsewhere. I would like to make one point as to the much discussed prospects on appeal, as that is clearly a concern and fear of anybody interested in the ultimate issue of marriage equality and removal of pernicious discrimination from American society.

The common wisdom is that the prospects for upholding Judge Walker’s decision in the 9th Circuit are good. I agree. However, the common fear is that the ever more conservative and dogmatic Roberts Court will reverse and ingrain the discrimination, inequality and hatred of Proposition 8 and its supporters deep into American law and lore. I am much more optimistic this is not the case.

As the inestimable Linda Greenhouse noted recently, although the Roberts Court is increasingly dogmatically conservative, and Kagan will move it further in that direction, the overarching influence of Justice Anthony Kennedy is changing and, in some ways, declining. However, there is one irreducible characteristic of Justice Kennedy that still seems to hold true; she wrote of Kennedy:

…he embraces whichever side he is on with full rhetorical force. Much more than Justice O’Connor, whose position at the center of the court fell to him when she left, Justice Kennedy tends to think in broad categories. It has always seemed to me that he divides the world, at least the world of government action — which is what situates a case in a constitutional framework — between the fair and the not-fair.

The money quotes of the future consideration of the certain appeal and certiorari to come on Judge Walker’s decision today in Perry v. Schwarzenegger are:

Laws designed to bar gay men and lesbians from achieving their goals through the political process are not fair (he wrote the majority opinion striking down such a measure in a 1996 case, Romer v. Evans) because “central both to the idea of the rule of law and to our own Constitution’s guarantee of equal protection is the principle that government and each of its parts remain open on impartial terms to all who seek its assistance.”

……

In a book titled “Justice Kennedy’s Jurisprudence,” a political scientist, Frank J. Colucci, wrote last year that Justice Kennedy is animated by an “ideal of liberty“ that “independently considers whether government actions have the effect of preventing an individual from developing his or her distinctive personality or acting according to conscience, demean a person’s standing in the community, or violate essential elements of human dignity.” That is, I think, a more academically elegant way of saying fair versus not-fair.

So the challenge for anyone arguing to Justice Kennedy in the courtroom, or with him as a colleague in the conference room, would seem to be to persuade him to see your case on the fair (or not-fair, depending) side of the line.

I believe that Linda is spot on the money with her analysis of what drives Anthony Kennedy in his jurisprudence. And this is exactly what his longtime friend, and Supreme Court advocate extraordinaire, Ted Olson will play on and argue when the day arrives. It is exactly what Vaughn Walker has ingrained in to and framed his extraordinary decision today on.

Today is one of those rare seminal days where something important and something good has occurred. Fantastic. The beauty and joy of equality, due process and equal protection under the Constitution of the United States of America.

A Smart Obama Immigration Policy In The Face Of Political Cowardice

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Clearly comprehensive immigration reform is not achievable in light of the refusal of either party to meaningfully address the subject, especially in an election year consumed with the rabid doings of the Arizona State Legislature (memo to everyone: the Arizona Legislature has always been the province of loony nutjobs). Against that backdrop, would be refreshing to see the Obama Administration actually thinking creatively about affirmative policy steps that could be taken to improve the situation and reduce racial tension. Believe it or not, that is exactly what is being done. From Dan Nowicki at the Arizona Republic:

The Obama administration is exploring a broad range of options that potentially could let thousands of illegal immigrants remain in the United States legally or apply for permanent residency if Congress continues to stall on passage of comprehensive immigration reform, according to an internal government memo obtained by The Arizona Republic.

The draft memo, from U.S. Citizenship and Immigration Services, the agency in charge of processing immigration benefits, outlines administrative options that would “promote family unity, foster economic growth and achieve significant process improvements and reduce the threat of removal for certain individuals present in the United States without authorization.”

Perhaps the most controversial part of the memo suggests increasing the use of deferred action, which the government uses to let certain illegal immigrants who haven’t committed crimes to remain in the United States without fear of being deported. Once an illegal immigrant is granted deferred action, they are eligible for work permits. Currently, deferred action is rarely granted.

Here is the actual memo from DHS Citizen and Immigration Services.

What a refreshing thought.

In the absence of Comprehensive Immigration Reform,

……

USSIS can extend benefits and/or protections to many individuals and groups by issuing new guidance and regulations, exercising discretion with regard to parole-in-place, deferred action and the issuance of Notices to Appear (NTA), and adopting significant process improvements.

Now this is the type of intelligent thought and leadership that Barack Obama ran and got elected on. Is it perfect or ideal? No. But it is positive action in the face of an intractable problem Congress is too cowardly to address.

On the other hand, floating this out with little fanfare, almost in a stand off treatment, does not bode well for the confidence of the Administration or its willingness to invest any effort or perceived capital oh so precious to them.

Prediction: The brown haters and conservative shriekers will let fly causing the White House and Administration to run away and disavow their own department and officials who put their necks out on the line to try to make a difference in such a critically important area of domestic policy. Oh, and John “the Maverick” McCain will rhetorically inflate like cynical nihilistic puffer fish furious about even the thought of such intelligent administration of government.

Are DOJ and DOI Making A Competent Legal Effort On Gulf Moratorium?

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Exactly one week ago, in a post entitled Judicial Ethics in the Gulf: Judge Feldman’s Conflicts and DOJ Malpractice, I related the patently obvious, and disqualifying, statutory ethical conflicts on the part of the Federal judge in the Eastern District of Louisiana, Martin Feldman, who made the curious and shocking decision to stay enforcement of the Obama Administration’s six month deepwater moratorium. As I pointed out, it legally was somewhat astounding the government did not raise Feldman’s conflict at any opportunity:

With this knowledge in the public sphere at least substantially by the night after Feldman’s decision, the government nevertheless did not even mention it as a ground in their attempt to stay Feldman’s ruling at the district court level when they filed their motion to stay at the district court level late the following day. That motion was in front of Feldman himself, so maybe you could rationalize the government not raising it at that point (although I would have posed the motion to stay to the chief judge for the district and included the conflict as grounds for relief were it me).

Having predictably received no relief in their lame request for stay from Feldman, the judge who had just hammered them (not surprising), the government put their tails between their legs and made preparations to seek a stay from the 5th Circuit. Surely the government would forcefully argue the glaringly obvious egregious appearance of both conflict and lack of impartiality once they were free of Feldman and in the Fifth Circuit, right? No, no they didn’t.

When the government filed their motion for stay in the 5th Circuit mid to late day Friday June 25, a full three days after getting hammered by oiled up Judge Feldman, and after Feldman’s most recent 2009 financial disclosure had even started being released to the general public (as evidenced by the literally damning piece on it Rachel Maddow did Friday night), the government STILL did not avail themselves of the glaringly obvious argument of conflict by Feldman. Nary a peep from the fine lawyers at the DOJ on one of the most stunningly obvious arguments of judicial bias in recent memory.

Another week later, and there STILL is no peep from the government on an issue that would be critical to reinstating their moratorium if they really wanted to. But while the government lawyers refuse to zealously litigate the position they claim to support, intervenors represented a by law school clinic professor and two lawyers for environmental groups have done the work the government should have done. On Friday June 2, Defendant-Intervenors filed a Motion to Disqualify Feldman in the district trial court and properly noticed the record at the 5th Circuit.

From the D-I Motion to Disqualify:

Pursuant to 28 U.S.C. § 455, Defendant-Intervenors Defenders of Wildlife, Sierra Club, Florida Wildlife Federation, Center for Biological Diversity, and Natural Resources Defense Council (collectively “Defenders”) respectfully move this Court to disqualify itself from Read more →

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