United States Supreme Court (AP / Jacquelyn Martin)
If (some say when) they ask for an emergency blockade of the Eleventh Circuit's decision to allow the United States to continue to investigate criminal violations involving the confidential documents found under a Court-authorized search warrant to investigate criminal violations, and also that part of the Eleventh Circuit's decision to allow the United States to continue to evaluate the damage done to our national security, then it might be worth knowing who the U.S. Supreme Court Justice is who handles emergency applications for a stay of Eleventh Circuit Orders:
U.S. Supreme Court Justice Clarence Thomas.
Think they'll ask for an emergency blockade of the Eleventh Circuit's decision?
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Eleventh Circuit Court of Appeals, Atlanta, Georgia (Image Eleventh Circuit Court of Appeals Website)
On September 21, 2022, a federal appellate court ruled that while its appeal is pending, the United States can use the classified materials it confiscated from the beach resort in South Florida under an authorized search warrant, to investigate whatever crimes may have been committed and to review whatever damage was done to national security. They also ruled that the United States does not have to submit the classified documents to a special master to review in the meantime.
With their unanimous order, they restored the Republic, at least for now. Meet the Judges.
JUDGE ROBIN S. ROSENBAUM is the senior judge among the three judges on this panel. She has been on the Eleventh Circuit since 2014. Having turned 56 this year, she is also the oldest of the three judges on this panel. Judge Rosenbaum is familiar with the inner workings of most of the parties in this case, having worked as a Trial Attorney in the Department of Justice, as an Assistant U.S. Attorney in the Southern District of Florida, as a U.S. Magistrate Judge in the Southern District of Florida, and as a U.S. District Judge in the Southern District of Florida.
A graduate of the University of Miami Law School, she was nominated by President Obama and she was confirmed to the Eleventh Circuit by a vote of 91 to 0.
JUDGE BRITT GRANT was a Justice of the Georgia Supreme Court before she went to the Eleventh Circuit in 2018. A graduate of Stanford Law School, Judge Grant was confirmed by a vote of 52-46. She is 44 years old and a Republican by party.
JUDGE ANDREW L. BRASHER rounds out this panel of three Judges. Judge Brasher turned 41 this year and has been on the Eleventh Circuit since June 2020. Previously he was appointed a U.S. District Judge in Alabama where he served for about a year before going to the Eleventh Circuit. A graduate of Harvard Law School, he too is a Republican by party.
Contrary to Mainstream Media and Alternate Media headlines, this decision did not resolve the appeal in favor of the United States, although that is the likely outcome after this ruling. Also, this panel which decided the motion (called a "motions panel") may not be the same panel of Judges who will decide the entire appeal. So it's on with the appeal and let's win there!
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(The famous photograph of Abraham Lincoln where the glass broke along the line a bullet would soon travel)
New Mexico and its citizens and its State Courts have all shown the way to challenge the right of insurrectionists to hold -- and run for -- office: Ask courts to declare by what right those people hold -- or seek -- office under the Fourteenth Amendment, Section 3 of the United States Constitution. (In courts, to ask "by what right" usually means quo warranto or something similar.)
As you may already know, Section 3 of the Fourteenth Amendment was written to bar people engaged in insurrection or rebellion against the United States to ever hold office. Then, it meant former Confederates.
Now, it means office holders (and office seekers) even though they did not engage in violence so long as the proof in court shows that they did engage in insurrection, as in the case of Download State of New Mexico ex rel. White v. Griffin Findings of Fact Conclusions of Law and Judgment filed Sept. 6 2022 (N.M. Dist. Ct. 1st Dist. Santa Fe County No. D-101-CV-2022-00473).
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(Sun Sentinel Handout)
In Download State of New Mexico ex rel. White v. Griffin Findings of Fact Conclusions of Law and Judgment filed Sept. 6 2022 (N.M. Dist. Ct. 1st Dist. Santa Fe County No. D-101-CV-2022-00473), New Mexico District Judge Francis Mathew ruled that because the defendant violated the Fourteenth Amendment, Section 3, "effective January 6, 2021" the defendant is no longer entitled to hold public office and shall not hold state or federal office in the future.
"Mr. Griffin disregards that the Constitution itself reflects the will of the people and is 'the supreme Law of the Land.'" Id., ¶ 67, p. 44.
The Judge who wrote this opinion graduated from Notre Dame the year after I did. He went on to the University of Notre Dame Law School. Back in the day, he would have been called "a Double Domer."
Today, he is rightfully called Your Honor.
Please read the disclaimer. ©2022 Dennis J. Wall. All rights reserved.
Cruelty flourishes in anonymity. Vindictiveness is easier in a lynch mob when a person acting alone would not want to have others single out an individual person's behavior.
It is like that when judges practice issuing unsigned orders without bothering to write opinions let alone sign them. We have had a rash of unexplained, unsigned orders of late, and two examples came in the same case.
Many commentators have pointed out that hiding behind unsigned opinions is cowardly. That is not the subject of this article, and we will say no more about that here.
Many commentators also write that it is hypocritical for judges to rule in favor of outcomes they desire, without taking responsibility -- or credit or blame, as the case may be -- for the outcomes. That too is not the subject of this article, and we will not mention it here again.
The first of the two examples of the practice comes from Texas. A panel of judges appointed to the Fifth Circuit Court of Appeals ordered a trial judge not to hold a hearing. The three people on the panel did not write an opinion, and did not sign their order. They simply cancelled the hearing that another judge had ordered.
The second of the two examples from the same case also comes from Texas. Five of the justices on the U.S. supreme court let an infamous anti-abortion Texas law go into effect because there were doubts about the law's constitutionality. This result was the opposite of what justices would do most of the time in such cases, even if the justices in question personally favored the constitutionally questionable State law. In this case, though, the five did not even write an opinion, and they did not sign their order.
(SarahBeth Maney/NewYorkTimes)
Yet we know who they are; that is not the point. The Fifth Circuit panel in question was headed by Edith H. Jones, who has never stopped being a leader of her (minority) party. She was joined by two others. The Five supreme court members in question are named Alito, Barrett, Gorsuch, Kavanaugh, and Thomas. So we know who they all are.
But that is not the point. The point is that they were supposed to behave as judges, and they did not. They behaved as power brokers, wielding power for a minority view at that. Perhaps that is why they stopped being judges and became power brokers.
Both examples display that the core purpose of anonymity seems to have been a cloak for the elimination of previously recognized constitutional rights.
In the Fifth Circuit example, the unsigned order eliminated Due Process by the expedient of cancelling a hearing; no-one has the opportunity to be heard when their hearing is cancelled.
(J. Scott Applewhite/Associated Press)
In the supreme court example, the unsigned order eliminated the constitutionally recognized right of a woman to be free from government interference in the early stages of her decision whether to give birth. I am personally in favor of life, but I am not in favor of vindicating life by eliminating other people's rights.
The Epistle of James was a part of last Sunday's services in my Church. James' Epistle is translated in different ways when he wrote about people acting like judges and preferring people with fine clothes over poor people in their churches. One translation has it that people acting in that way were acting like judges, "and corrupt judges at that." Another translation has it that people acting in that way were "judges with evil designs." Jas. 2:4. Both translations fit these examples.
There is a proper place for short rulings by panels of judges that are not signed by the individual judges on the panel. These are called "Per Curiam" decisions, meaning that they are decisions issued from the court as a whole. They are reserved for decisions that are so clear that no opinion is necessary and no individual signature is required.
They were never meant to be issued when decisions are not clear.
They were never intended as places to hide.
To borrow a Biblical phrase that seems apt, they were never meant to disguise evil designs.
A version of this article was previously published on Claims and Bad Faith Law Blog on Wednesday, September 8, 2021. Reprinted here with permission.
Please read the disclaimer. ©2021 Dennis J. Wall. All rights reserved.
(New York Public Library Collection)
The U.S. supreme court ruled 5 to 4 that a Texas law overturning Federal law could go into effect without a fight. The 5 did not give their names. But we know who they are. Three were appointed by the former regime. They all call themselves Republicans.
(New York Public Library Collection)
Three federal judges in Texas cancelled a hearing scheduled by another judge to hear all sides in a case. The three federal judges did not want to hear from all sides, apparently. They did not sign their names. But we know who they are. Two were appointed by the former regime. All three call themselves Republicans.
(Pacific Standard) A judge in Michigan gave some people access to Dominion Voting software. (In a break from the apparent practice, he signed his name to the opinion he wrote.) It is not clear how, but somehow, the Dominion Voting software ended up on the internet ready to hack. The judge in Michigan calls himself a Republican.
There is a pattern here. Present-day media have not written much about it, but there is a pattern here.
They're not judges, they're "Republicans." (That's one name for them.)
They're not like any Republicans I have ever known.
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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.
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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.
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.
(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.
(Los Angeles Times)
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