Claims And Issues

THEY BLEW THE WHISTLE ON THEM.

(Gridview_imagefull/Florida Dep't of Agriculture & Consumer Services)

Four or perhaps six Republican Members of Congress marched on the justice department earlier this week to free the terrorists of January 6.  The newspapers reported this as real news.

          A crowd gathered.  They saw Matt Gaetz and they yelled, "Pedophile!"

          Then the crowd blew whistles.  The Republican Members of Congress went away.

          They blew the whistle on them.

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COURT FILES, OPEN TO THE PUBLIC.

"But harsh words are not a basis to seal a case, especially where it appears that both sides have no qualms about tearing each other down."[1]

          With these words, Justice Arlene P. Bluth sealed her ruling but denied a motion to seal documents in a case pending before her.    Justice Bluth's ruling in this case did more than follow the law.  The law defaults to a presumption of public access to court files.  In one sense, Justice Bluth followed that law in her ruling.

          Yet in another sense, Justice Bluth ruled for our day and age.  If people continue to "have no qualms about tearing each other down," then people who do that in lawsuits can continue to expect that everyone will see and hear what they say and do.

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[1] Choi v. Solomon, Doc. No. 25, Decision and Order on Motion filed Nov. 6, 2020, at p. 4  (N.Y., New York County, Index No. 654666/2020), Download Choi v Solomon (NY S Ct Nov 6 2020).

WHOSE "PRESIDENT"?

Many, many commentators on cable TV shows and in newspapers and other media continue to refer to the former guy as president.

                                     He is the former guy.

                                     He is not the president.

 

          Joe Biden is the President.

          Get real.  Stop the infatuation that got us here, corporate media.

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DOJ UNFATHOMABLE SECRECY: WHY TRY TO SHIELD HER FROM TESTIFYING?

On February 8, 2021 -- 19 days after Joe Biden was inaugurated as President of the United States -- the justice department filed a motion to quash a subpoena for the testimony of Betsy DeVos.

          They didn't have to.

          But they did.

          In fact, there was and still is a lawsuit pending in federal court in California in which Ms. DeVos was likely to be deposed.  The lawsuit in California was filed on behalf of students who alleged lots of things went wrong in the loan program administered by then-Secretary of Education Betsy DeVos, to make a long story short.

          Ms. DeVos was no longer the Secretary of Education when the justice department filed its motion to quash a subpoena in the California case for her deposition.  So the justice department did not have to try to shield her, a private citizen, from testifying in a judicial proceeding.

          But they did.

          Beyond that, the federal judge in California had already expressed his willingness that Ms. DeVos should be deposed in that case.  The federal judge in question happens to be one of the most respected judges in the federal court system, let alone in the Northern District of California.

          But the justice department filed its motion anyway.

          In Florida.  They filed their motion in Florida.  Why?

They went about as far away as you can get from California and still be in the continental United States.  To say again, they filed their motion in Florida on February 8, 2021.  Look it over here:  Download In re Subpoena Served on Elisabeth DeVos Doc. No. 1 Motion to Quash Subpoena on Betsy DeVos filed Feb. 8 2021 (S.D. Fla. No. 21-mc-14073).

          I have read the motion.  It is snarky at times; it is snide on occasion.  The opposing parties took the unusual step of calling it "inappropriate."  That would not be an unusual description in most of today's lawsuits.  However it is not something that is often said about pleadings filed by the U.S. Department of Justice.

          The motion was signed by KEVIN P. HANCOCK, Esquire, a person who identified himself as a Trial Attorney in the Federal Programs Branch of the DOJ Civil Division.

          MR, HANCOCK, the one who signed the motion, was previously a law clerk at the Third Circuit Court of Appeals for Judge Maryanne Trump Barry.

          If this kind of game-playing had taken place in private practice, there would almost certainly have been unpleasant consequences as a result.  To say again, they did not have to try to shield Betsy DeVos from testifying, but they did.  They filed their motion despite the fact that the federal judge in the California case had already expressed his willingness for Ms. DeVos to testify.  And they filed their motion in Florida, not in California where the case was pending.  Above all, they got paid for it, at our expense, at the expense of the federal taxpayer.

          On April 7, 2021, the federal judge in Florida sent the motion to the federal judge in California to decide.  Here is the order from the federal judge in Florida:  Download In re Subpoena Served on Elisabeth DeVos Doc. No. 28 Order Granting Transfer to California filed April 7 2021 (S.D. Fla. No. 21-mc-14073).  The justice department has not brought its motion to the California judge's attention or asked for their motion to be heard.  They have not dared.

          It only took the justice department two months to lose.

          We can expect that the justice department will lose motions.  However we have a right to expect that the lawyers in that department will behave professionally.

          Particularly since we are the ones paying his salary.

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THE VENEER OF JUSTICE SAM ALITO.

A veneer is defined as a thin layer covering up something else.  See the Merriam-Webster Dictionary definitions.

          In their latest venture into the tension between businesses and consumers, the U.S. Supreme Court 6 came down together, hard, to restrict people from suing under statutes that legislatures make available to people to sue.  The Supreme Court 6 say that is not constitutional.

          The veneer comes from Justice Sam Alito, one of the Supreme Court 6.  He says that people do not have a leg to stand on when they sue in federal courts unless those people can show their injuries and damages up front, from the get-go.  Many legal scholars parse Alito's words to see if he and the other 6 are being consistent in what they call standing "doctrine."

          The only thing we need to know, as a people, is that standing is a veneer.  The real doctrine is to deny people their rights under statutes that give them their rights -- at least as long as the Supreme Court 6 are on the job.

Please read the disclaimer.  ©2021 Dennis J. Wall.  All rights reserved.

BARR's department 'ISN'T OVER, IT ISN'T EVEN PAST.'

MARK R. FREEMAN, Esquire has been a busy lawyer since 2014 when we started paying his salary with our federal taxes.  He joined the justice department that year.

          There are reports that in January 2020 he argued against the former guy's White House Counsel testifying under a subpoena from the U.S. House of Representatives.

          He definitely argued in January 2020 against unsealing the Mueller Grand Jury testimony and documents so that the House could see it all.

          It is unclear when he became the Director of the Appellate Section of the Civil Division at the department of justice, but he holds that position now when MERRICK GARLAND is the Attorney General.

          In June 2021, MARK FREEMAN argued in a Reply Brief with his name on it, that the United States should be substituted for the former guy in E. Jean Carroll's lawsuit.  The doj did not have to appeal at all.  It will be remembered that Ms. Carroll sued the former guy for defamation when he called her a liar among other things after she said that the former guy raped her.

          A federal judge denied Bill Barr's motion and that's why there is an appeal.  If the motion had been granted, the United States would become the defendant and Ms. Carroll's lawsuit would be barred because you cannot sue the United States for defamation.

          FREEMAN's brief on the appeal continues to argue that the former guy was performing his official duties when he allegedly defamed Ms. Carroll.

          If the appeal is successful, then Ms. Carroll's lawsuit will be barred.  That is the reason for MARK FREEMAN's brief.  Ms. Carroll's lawsuit will be barred if it is successful.

          Despite media reports, there really is no reason to think that there is a new Attorney General in town.  The same policies are being advanced in -- and rejected in -- the Federal Courts.  See previous articles here, here, here, and here.

          There are many stories in the doj.  This has only been one of them.

Merrick Garland photo:  Tom Brenner/New York Times.

Bill Barr photo:  Doug Mills/New York Times.

Please read the disclaimer.  ©2021 Dennis J. Wall.  All rights reserved.

DEPARTMENT? YES. JUSTICE? NOT SO MUCH.

 

Media reports display an increasing number of disciplinary proceedings against lawyers caught in the former guy's black hole.

          One of the former guy's lawyers is suspended from practicing law in New York.

          And then the same former lawyer is suspended from practicing law in Washington, D.C.

          Elsewhere, other former lawyers of the former guy are neck-deep in sanctions hearings, it is reported.

          In the meantime, lawyers still in the department of justice have continued to conduct an operation designed to keep one of Bill Barr's memorandums a secret so that the public cannot see it.  That memorandum reportedly has to do with why Bill Barr decided not to prosecute the former guy.

          Some say Barr's decision was made before the memorandum was written, parenthetically.  But that has little to do with our concern today.  Or does it?

          As reported here earlier, the federal judge presiding over the memo-as-secret litigation found that lawyers in the department of justice had been "disingenuous" and that their testimony was "not worthy of credence" in the course of representing the former guy's former attorney general's position. 

            The department's response?  Did they investigate the behavior that draws sanctions in other places?  Did they at least reprimand the lawyers and perhaps even chide them for bringing the department into disrepute?

          No.  The department appealed the judge's order to make the memo public.  They obviously hope that if the judge's order is overturned then they can say that the judge's findings of misconduct are overturned as well.

          You and I know it does not work that way.

          The judge's findings remain.  What the lawyers did, they did.  And what they did was misrepresent things to the court, that's what the findings are, not simply opinions and allegations.  Findings.

          And making misrepresentations to the court has got the attention of bar associations across the nation.   No bar association has ever condoned this sort of behavior.  To the contrary.  The bar associations that have already looked at lawyer-as-misrepresenting-to-the-court have suspended the lawyers in question from the practice of law in their courts.

          Why is this not so in the department whose name is justice?

          I served on a grievance committee myself for years.  Bar associations only rarely discipline lawyers and even when they do, the discipline they impose is hardly every suspension or disbarment.   This is not to say that any such discipline should be visited on the lawyers whom a federal judge found to be "disingenuous" and whose testimony the judge found "not worthy of credence."

          I do ask again, why is the department of so-called justice not even investigating?

          Why is the department instead spending its time in distracting public attention by appealing to keep Barr's secret memorandum, well, secret?

Bill Barr photo by Alexander Drago / Reuters.

Please read the disclaimer.  ©2021 Dennis J. Wall.  All rights reserved.

MORE CYA FROM INCREDIBLE, "DISINGENUOUS" DOJ: APPEALING JUDGE JACKSON'S ORDER.

CYA.    That stands for more than "Career Young Attorneys," I think.

            If MERRICK GARLAND's Department of Justice is so different from Bill Barr's justice department, then why is MERRICK GARLAND's DOJ still fighting Bill Barr's battles?  And in the process causing a federal judge to find that lawyers in MERRICK GARLAND's DOJ submit affidavits that are "not worthy of credence," all the while the DOJ is "disingenuous to [the] Court"?

            The case of the disingenuous memo and incredible affidavits is a good example. 

            A group called Citizens for Responsibility and Ethics in Washington (CREW) sued to disclose a memorandum that Bill Barr's justice department wrote about the Mueller Report. 

            JULIE STRAUSS HARRIS, Esquire is the DOJ's Senior Trial Counsel.  Both under Barr and now under MERRICK GARLAND, HARRIS has led the defense against CREW's attempt to make the justice department disclose the memo.  She has signed and submitted the government's pleadings in this case from the beginning in 2019, according to PACER, the electronic docket.

            Judge Amy Berman Jackson is the presiding judge in CREW's lawsuit.  HARRIS told Judge Jackson many reasons that the memo should be kept quiet.  Among other things, JULIE STRAUSS HARRIS told Judge Jackson that the memo should be kept secret because Edward O'Callaghan, one of the memo writers, made invaluable "prosecutorial recommendations" to Attorney General Barr.  Download Judge Amy Berman Jackson REDACTED FOR THE PUBLIC Opinion of May 3 2021 in CREW v. Department of Justice.  Judge Jackson quotes JULIE HARRIS STRAUSS at p. 24, n. 13.

            The problem is that Mr. O'Callaghan could not actually make any prosecutorial recommendations.  In Judge Jackson's words, "there was no prosecutorial decision on the table."  Id.

          Not only was AG Barr "being disingenuous ... but DOJ has been disingenuous to this Court with respect to the existence of a decision-making process that should be shielded by the deliberative process privilege."  Court Order of May 3, 2021, at 26.

            Judge Jackson went on to find that the affidavits submitted on behalf of the DOJ in this case "are so inconsistent with evidence in the record, they are not worthy of credence."  Every affidavit submitted for the DOJ in this case was submitted by JULIE HARRIS STRAUSS.

            Judge Jackson ruled that the memo should be fully disclosed.  Nonetheless, she herself quoted only part of it to the public, apparently pending further action by the DOJ.

            DOJ appealed.  JULIE STRAUSS HARRIS signed the notice of appeal.  Download CREW v. DOJ Doc. No. 31 Notice of Appeal filed 05.24.21 (D.D.C. No. 19-1552 (ABJ)).  HARRIS appealed the Court Order in which, to use Judge Amy Berman Jackson's words in her Order, the Court found the DOJ to be "disingenuous" and the affidavits submitted by HARRIS "not worthy of credence," i.e., incredible.

            To sum it all up, CYA in this case describes trying to save a lawyer's reputation after she has been called out by a federal judge.  If the judge's Order does not stand, the thinking goes, then maybe the lawyer's reputation can be restored.

            If you or I had submitted false evidence to the judge, or if the judge called us disingenuous, the holes we would crawl into might not be deep enough to restore our reputations.

            All this poor lawyering or lapsed judgment or earned humiliation, whatever else all this may be, is all being paid for by you and me, the federal taxpayers.  All at our expense.

            And all the while, Mr. Barr is still in charge of the justice department.

Bill Barr photo by Alexander Drago / Reuters.

Please read the disclaimer.  ©2021 Dennis J. Wall.  All rights reserved.

JUDGES WILL OFTEN TELL THEM TO STOP, SO ASK!

 

(Gridview_imagefull/Florida Department of Agriculture and Consumer Services)

Recently some courts have ruled against equal laws.  It seems to me that these rulings depend more on the fact that the people who sued (to get taxpayer money paid to them instead of that money being paid to other people) asked the judges to tell the defendants to stop, instead of asking for damages.  I have said this before.   

            More judges are ruling like this and so I say it again:  These rulings depend more on the fact that plaintiffs, meaning the people who filed the lawsuits, asked the judges to tell the defendants to stop, instead of asking for damages.

            A federal judge in Florida told the State to stop when the judge issued a preliminary injunction stopping the State from imposing fines and limits on people who petition to put proposed State constitutional amendments on the ballot.

            This ruling came right after another federal judge in Florida stopped the State from imposing penalties under a new Florida law that would require social media companies to let politicians say whatever they want to say on their websites.  The new Florida law would have allowed Florida to impose penalties up to a Quarter of a Million Dollars.  A day.

            Courts in Maryland are telling the State to stop withholding unemployment benefits from unemployed people during a pandemic.  These lawsuits have been heard at all three levels of courts in Maryland, from the trial court to the intermediate appellate court to the State's highest Court.

            Comfortable people did not file these lawsuits.  The people who filed them include individuals, and they include groups that did not exist before such as "the Unemployed Workers Union" and "the Baltimore-based Peoples Power Assembly."  Significantly, the plaintiffs apparently did not include political parties or established civil rights organizations or other entrenched interests.  These lawsuits were brought by people in Maryland who are affected by the Maryland Governor's  attempted order to force them to take jobs, any jobs.

            The Maryland trial judge was the first judge in these Maryland cases to hold that the State must stop what they were trying to do.  The trial judge issued a "temporary restraining order," effectively another name for a preliminary injunction.  One of the trial judge's reasons is instructive.  It should be followed in other States where governors are trying to block unemployment benefits and so force unemployed workers to take any job that the governors' campaign contributors condescend to give them.

            The Maryland trial judge ruled in part because the State governor "appeared to lack the authority to end the federal program early.  He added that the plaintiffs' stories of economic hardship reminded him that 'the impact of the pandemic has been cruelly uneven.'"  Katherine Shaver, Court Rejects Hogan Request to Block Order Preventing End of Enhanced Federal Unemployment Benefits, WASHINGTON POST, online Monday, July 5, 2021 (emphasis added).

            State governors may lack the authority to end the federal program early.

            Ending the federal program early may violate equal protection of the laws.

            These concepts are not limited to the pen of a trial judge in Maryland.  They apply in every State.  State Constitutions are based on them.  The Federal Constitution guarantees equal protection of the laws in all the States.

            Judges will tell them to stop.  So ask judges to tell them to stop.

Please read the disclaimer.  ©2021 Dennis J. Wall.  All rights reserved.

HAPPY FOURTH OF JULY, AMERICA!

AT DEPARTMENT OF JUSTICE, EVERYTHING IS CHANGING, NOTHING IS NEW.

Download Brief of the United States in Trump v. Carroll 2d Cir Appeal Case No. 20.3977 filed June 7 2021

Brief of the United States of America in the case of E. Jean Carroll, Case No. 20-3977, Doc. 102, filed June 7, 2021.

 

One lesson of the last four+ years is clear:  People matter.  The people that make the decisions in our government matter.   Who the prosecutors are, matters.

            Whether we have a Department of Justice or a department of career young attorneys intent on CYA, depends on who is in the department.

            It also very much depends on who really runs the department.

            "Structural checks can be overrated.  The survival of our Republic depends as much, if not more, on the virtue of those in government, particularly the upholding of norms by civil servants, prosecutors and military officials.  We have grown too jaded about things like professionalism and institutions, and the idea of men and women who take their duties seriously.  But as every major moral tradition teaches, no external constraint can fully substitute for the personal compulsion to do what is right."  Tim Wu, What Really Saved the Republic From Trump?, NEW YORK TIMES, online Dec. 10, 2020.

             The personal compulsion to do what is right, the virtue of those in government, particularly the upholding of norms by civil servants:  Were these the characteristics on display of the people that we are looking at in the department of justice?

            Were these characteristics on display from them during the last four+ years?

            Are they on display now?

            Let's look for these characteristics, starting with the individuals featured in the first article in this series, IN MERRICK GARLAND'S DEPARTMENT, PROTECTING 'CAREER YOUNG ATTORNEYS' MEANS "CYA."

            JOSHUA M. SALZMAN.  This is the person who submitted the reply brief to continue Barr's appeal attempting to substitute the United States for the former guy in the lawsuit E. Jean Carroll filed.  She filed a defamation lawsuit after the F.G. allegedly defamed her by calling her a liar after she alleged he raped her.  The United States Department of Justice argued in SALZMAN's reply brief that the defamation was a part of the former guy's official duties.

            During the time of the F.G. and A.G. Barr, JOSHUA SALZMAN worked at Barr's law firm, the department of justice.  He did not always work there; MR. SALZMAN, like some of the others, used to be employed at MERRICK GARLAND'S law firm, WilmerHale. 

            During the time of the F.G. and A.G. Barr, MARK STERN also worked at Barr's law firm.  MARK B. STERN's name is also on the reply brief that MR. SALZMAN filed, appealing for the substitution of the United States in the F.G.'s role as defendant in E. Jean Carroll's lawsuit.

            If their appeal is successful, the United States will become the defendant in that lawsuit; the United States cannot be sued in that lawsuit.  If their appeal is successful, then, it will gut E. Jean Carroll's lawsuit against the former guy. 

            A third lawyer who takes credit for the reply brief in E. Jean Carroll's case is MARK R. FREEMAN.  He is the current Director of the Appellate Staff, Civil Division, in the justice department.  He, too, worked in A.G. Barr's department during the time of the F.G.  He, too, worked in MERRICK GARLAND's law firm before that.

            As we shall see in this series, among other things, MR. FREEMAN reportedly was instrumental in arguing that the F.G.'s General Counsel, Don McGahn, should not testify under subpoena from the U.S. House of Representatives.

            Last but not least, there is Acting Attorney General and MERRICK GARLAND's deputy, BRIAN M. BOYNTON.  He alone among the crew did not also work for the former guy or for A.G. Barr during the time that the F.G. was in office.  His background is in defending large corporations and other things and people -- including one Betsy DeVos, the F.G.'s Secretary of Education, as we shall also see in this series.

            MERRICK GARLAND is responsible for the decisions of these people.  Beyond and to the exclusion of every reasonable doubt, as they say, these are MERRICK GARLAND's decisions.

            There is no better way to conclude this article than by once again quoting from Professor Tim Wu's piece in The New York Times:

          It may sound naïve in our untrusting age to hope that people will care about ethics and professional duties. But Madison, too, saw the need for this trust. “There is a degree of depravity in mankind,” he wrote, but also “qualities in human nature which justify a certain portion of esteem and confidence.” A working republican government, he argued, “presupposes the existence of these qualities in a higher degree than any other form.”

           It is called civic virtue, and at the end of the day, there is no real alternative.

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