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Popehat by Ken White - 3M ago

One of the most justifiably ridiculed type of blog posts is the "hey guys I haven't posted in a long time" non-substantive blog posts, but nonetheless, here I am with a hey-guys-I-haven't-posted-in-a-long-time blog posts. (Like that? That's lampshade hanging.)

I'm pretty busy. My creative outlets are my new gig as a contributing writer at The Atlantic and the weekly All the President's Lawyers radio show and podcast on KCRW. And, though it seems I have abandoned the Make No Law podcast, I haven't — those podcasts are just incredibly time consuming to produce.

If I judge there is interest, I may start posting links to the Atlantic pieces and ATPL podcasts here for debate, in part so I can hear more regularly how much the site sucks now that I am Deranged By Trump/In The Tank For Trump. And I may develop some projects to write about here more regularly. So: though the site slumbers, it is not dead.

Copyright 2017 by the named Popehat author.
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Last month I I argued that Harvard Law Professor and frequent Fox guest Alan Dershowitz was lying to you by disguising his perfectly arguable view about what the law should be as a statement of what the law is. Specifically, Dershowitz argues that when someone (say, General Flynn) lies to an FBI agent, and the FBI agent knows that it's a lie, and in fact expected the lie, the lie is not material, and therefore not a violation of Title 18, United States Code, section 1001, that familiar and abused element of vast prosecutorial power.

Dershowitz took quite a bit of heat for his pronouncements on materiality. His defenders — here and elsewhere — argued that he's merely arguing what the law should be and isn't being misleading at all. Professor Dershowitz has now doubled down, and has done his defenders no favors in the process.

He starts out honestly and reasonably enough by framing the issue as one of what the law should be:

The question posed by the Flynn case is whether a lie can be material if the FBI already had indisputable evidence of the truthful answer and asked him the question for the sole purpose of giving him an opportunity to lie.

As a civil libertarian, I believe the answer should be “No.” The proper function of an FBI or a grand jury interrogation is to obtain information they do not already have, and not to create a new crime by giving the suspect the opportunity to pass or fail a morality test with criminal consequences.

This is perfectly arguable as a matter of policy; I agree for slightly different reasons.

But Dershowitz cannot abide criticism. It's not enough to clarify that he meant to be normative and not descriptive.

Well, it turns out that the issue is not “well-settled.” Nor did I invent it. In fact, two influential courts — the New York Court of Appeals, in an opinion by one of the most distinguished jurists of the 20th century, and the D.C. district court that is now preparing to sentence Flynn — have sided with my interpretation. (True civil libertarians, however, should be concerned about what the law and policy should be, regardless of whether there is a precedent.)

Leave aside, for the moment, what Dershowitz is trying to sneak past you in the parenthetical — the notion that it doesn't matter if you're deceiving people about what the law is because you should be concerned with what the law should be. Instead, let's focus on the authority he's talking about. Did I miss cases in my analysis? Did Dershowitz, a formidable legal mind, find support that I did not?

No.

In The People v. Tyler, the New York court’s Chief Judge Charles Breitel reversed a conviction for perjury of a former public official who had lied about his connection to a well-known gambler. The court reversed the perjury conviction, holding that:

“The primary function of the Grand Jury is to uncover crimes and misconduct in public office for the purpose of prosecution … It is not properly a principal aim of the Grand Jury, however, to ‘create’ new crimes in the course of its proceedings. Thus, where a prosecutor exhibits no palpable interest in eliciting facts material to a substantive investigation of crime or official misconduct and substantially tailors his questioning to extract a false answer, a valid perjury prosecution should not lie.”

The appeals court cited a district court case in D.C., which held that to interpret “materiality” more broadly would serve no proper legislative purpose. In U.S. v. Icardi, 140 F. Supp. 383, the court held that if “the committee is not pursuing a bona fide legislative purpose when it secures the testimony of any witness, it is not acting as a ‘competent tribunal’ … [and] extracting testimony with a view to a perjury prosecution is [not] a valid legislative purpose.”

So. Let's review. In my post, I cited six different United States Courts of Appeal – six circuits — specifically rejecting Dershowitz' argument.1 Dershowitz now argues that the point is not "well-settled" because . . . in 1978 a New York court interpreting a New York law came to a different conclusion, and in 1956 a federal trial court in D.C. made comments supporting Dershowitz' view on materiality.

This is not a serious argument. An honest commentator or advocate might cite those cases for the proposition that the current rule is wrongly decided and that it should be changed. But no honest advocate or commentator would cite a state court decision on a different statute and a trial court decision from 1956 to say that the law is not "well-settled" when every federal appellate court to take up the issue has explicitly ruled the other way. Notably, though Dershowitz discusses and links the two cases he cites, he utterly ignores the wall of federal authority contradicting his position. He's not saying "yes, there is contrary authority, but it's wrong." That would be honest. Instead, he pretends the contrary authority doesn't exist. If he did that in a brief, he'd be sanctioned. If the government did it in a brief about one of his clients, he'd be outraged. Dershowitz is trading on the fact that non-lawyers will not grasp the legal significance of every single federal court of appeals to consider the issue going one way and a state court and trial court going another. He's using his expertise to deceive.

Note how he frames the dispute with his critics:

One can reasonably disagree on these issues, and I am ready to debate which is the better civil-liberty view.

But that's not the dispute. Some people do agree with the current regime of prosecutorial power, but those aren't the people Alan Dershowitz is complaining about. The dispute is this — what is the law now? Dershowitz is arguing that the law is, at least, unclear, and that the Special Counsel is breaking it. He's making that argument in fora sympathetic to that view, in service of the general narrative that the Special Counsel is lawless and that the Trump Administration is a victim of wrongdoing. He's doing so deliberately. He's lying.

Dershowitz views himself as a principled victim of calumny:

Being principled and intellectually honest means that, sometimes, your positions may conflict with your partisan preferences. For most of my critics, however, it seems that partisanship trumps their fair-weather commitment to civil liberties.

There's nothing principled about Dershowitz' stance. Principled commentators don't use their prestige to lie about what the law is. The law is vastly complicated and often obscure, which helps the government abuse it. Dershowitz' commentary — as he knows perfectly well — is being used to portray the Special Counsel proceedings falsely as an aberration rather than as a continuation of a long pattern of very troubling federal prosecutorial power. That narrative is a barrier to reform, not an incentive to it, because it suggests we can solve the problem by firing the Special Counsel, who is merely doing what prosecutors do every day. That is not a civil libertarian stance; it's the stance of a hack.

Dershowitz suggests that he's been falsely accused of being a Trump supporter. Allow me to clarify. I do not believe that Alan Dershowitz supports Donald Trump in his heart. I only think he's willing to use deceit to support Trump's narratives, and the narratives of Trump's obedient media allies, to get on television and in print. Alan Dershowitz doesn't love Trump. But he loves the camera more than he loves the truth.

Copyright 2017 by the named Popehat author.
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Alan Dershowitz, famed Harvard Law School professor and successful trial and appellate lawyer, is lying to you.

He's lying about American law — the subject he ostensibly teaches, the subject on which he is called upon as an expert — for partisan reasons, in order to defend President Trump and discredit Special Counsel Robert Mueller. He's lying repeatedly, shamelessly, and angrily.

Professor Dershowitz's lies are, appropriately enough, of a professorial sort. Trading on his reputation as a legal titan, he's offering normative views (what the law should be) as descriptive views (what the law is.) This is a familiar problem; a few years ago I described it in the context of professors talking about what is or isn't covered by the First Amendment:

Trope Eight: "[Professor] explained . . . ."

Example: "The exhibit of cartoons in Texas might have crossed the line, [Professor] Szmer said."

The media loves to quote a professor to support a viewpoint. This is intellectually neutral: it can be good or bad, depending on the honesty and qualifications of the professor selected.

Quoting professors about law is particularly risky, if your aim is an accurate and informative discussion of free speech law. If you call a physics professor and ask them what will happen if you drop your pencil, and why, he or she will say "it will fall, because of gravity." There is a relatively low chance that the professor will tell you "well, maybe nothing will happen" because he or she harbors the belief that the current gravitic regime is unfair and otherwise problematical. But when you call a professor of law, or political science, or journalism, and ask them a question about whether some controversial speech is protected by the First Amendment, there is an unacceptably high probability that you will get a quote expressing what the professor thinks the law ought to be. Sometimes the professor will flag a statement as an argumentative one, sometimes not. Moreover, some professors . . . . how can one put this delicately? Some law professors' views on how a court is likely to rule on an issue are untainted by exposure to actual courts.

Many professors will give you a sober, accurate and well-informed assessment of how a court would likely approach a given free speech situation. The trick is separating those professors from ones who are out of their field or mere advocates.

Alan Dershowitz, in describing the Special Counsel investigation, is posing as a subject-matter expert but acting like an advocate — and a dishonest one.

The subject of Professor Dershowitz's dishonesty — for the purpose of this essay — is General Michael Flynn's lies to FBI agents and his subsequent guilty plea for lying under 18 U.S.C. section 1001. Professor Dershowitz has asserted, repeatedly, that Flynn did not violate Section 1001 because his lies were not "material" — that is, meaningful. He claims that the lies were not "material" because the FBI knew at the time Flynn was lying, and was not fooled. This is what he said on Fox:

“I hope the judge understands when he has the case tomorrow that Flynn did not commit a crime by lying,” Dershowitz told Fox News host Bill Hemmer. “Because the lie has to be material to the investigation. And if the FBI already knew the answer to the question and only asked him the question in order to give him an opportunity to lie, his answer — even if false — was not material to the investigation.”

Legal analysis on TV is tough; there's very little time to make a complicated point. But Dershowitz has promoted the same point explicitly in writing:

When questioning any suspect, officials should not ask questions whose answers they already know, for the sole purpose of seeing whether the suspect will lie. If they do ask such questions, untruthful answers should not be deemed “material” to the investigation, because the FBI already knew the truth.

This is a perfectly arguable statement of what the law should be. But someone reading Dershowitz's column could be forgiving for thinking that's what the law is — or, at least, that the law is unsettled on the point. The essay utterly fails to divulge that every court to consider the argument has rejected it. Amusingly, Dershowitz's essay asserts that "the first casualty of hyper partisanship is nuance." Apparently the nuance of revealing that your argument has been repeatedly rebuffed was one of those early battlefield deaths.

So: Professor Dershowitz' proposition is that a lie is not material under Section 1001 if the government actor lied to already knows the truth. Every court to consider this argument — and there have been many — has flatly rejected it. See United States v. Mercedes, 401 F. App'x 619, 620 (2d Cir. 2010) (rejecting argument that false statement about citizenship could not have been material because interviewing agent had already "ruled out the possibility of relying on the statement"); United States v. Moore, 708 F.3d 639, 649 (5th Cir. 2013) ("A statement can be material even if the agency already knew the answers given by the defendant and even if the receiving agent knows they are false."); United States v. LeMaster, 54 F.3d 1224, 1230–31 (6th Cir. 1995) "It is irrelevant what the agent who heard the statement knew at the time the statement was made. A false statement can be material even if the agent to whom it is made knows that it is false." ("The fact that the FBI already knew that LeMaster received $6,000 in cash from Spurrier did not affect the materiality of his false statement to the FBI. A false statement 1231 can be material even if the agent to whom it is made knows that it is false."); United States v. Whitaker, 848 F.2d 914, 916 (8th Cir. 1988)("A false statement 1231 can be material even if the agent to whom it is made knows that it is false."); United States v. Goldfine, 538 F.2d 815, 820 (9th Cir. 1976) ("Darrell Goldfine contends, however, that since the Compliance Investigators knew the answer and were not misled by the falsity, the statement was not materially false. . . . [T]he statement here was clearly material.")United States v. Henderson, 893 F.3d 1338, 1351 (11th Cir. 2018) ("Indeed, a false statement can be material even if the decision maker actually knew or should have known that the statement was false.”)

I am not aware of any cases construing Section 1001 that go the other way. Nor is there any credible indication that the United States Supreme Court would go the other way and decide that a false statement to the government does not violate Section 1001 if the government already knows that it is false. To the contrary, the Court has signaled that it would reject that argument. In Brogan v. United States, 522 U.S. 398 (1998), the Supreme Court rejected the argument that there is an "exculpatory no" defense to Section 1001 — that is, the idea that you don't violate Section 1001 if you say "no" when the government asks you if you committed a crime. Rejecting the argument that the statute or the Fifth Amendment required such a defense, the Court also rejected the argument that the investigator's gullibility or lack thereof should be a factor:

Certainly the investigation of wrongdoing is a proper governmental function; and since it is the very purpose of an investigation to uncover the truth, any falsehood relating to the subject of the investigation perverts that function. It could be argued, perhaps, that a disbelieved falsehood does not pervert an investigation. But making the existence of this crime turn upon the credulousness of the federal investigator (or the persuasiveness of the liar) would be exceedingly strange; such a defense to the analogous crime of perjury is certainly unheard of. (Id. at 402.)

In short, there is no credible argument that Alan Dershowitz's repeated assertion is a correct statement of the law. It would be malpractice to advise a client that way. It would be deceitful to tell students. And it's dishonest to tell the nation without telling them that this is your theory of what the law should be, without revealing what the law is. Advocates push the boundaries of the law. They ought to. But honest advocacy doesn't involve lying about the current state of the law. Indeed, lawyers have an ethical obligation to reveal contrary authority when arguing in court, and judges will burn you down to the ground if you don't. I would argue that legal experts — who trade on their reputation for knowing what the law is — have a similar ethical obligation to reveal when existing law flatly contradicts what they are arguing. That's particularly true where, as here, Dershowitz's argument hasn't just not succeeded yet — it's been repeatedly, specifically called wrong by every court to take it up.

The law is clear: the FBI can find irrefutable evidence of a crime, interview you about it, collect lies that it knows are lies and that do not deter it for a second, and then have you charged with lying under Section 1001. Is this what the law should be? No. I think it is not. I've been complaining for years that this definition of materiality lets the government, in effect, manufacture crimes. I've written about how it creates incentives for investigators to conduct interviews for the purposes of soliciting lies when they can't prove an underlying crime. I've pointed out how it's been key to numerous prominent prosecutions. I think it gives the government dangerous and excessive power. But here's the difference: I have not lied to you about what the law is. I've told you what the law is and why I think it's wrong. That's what an ethical "legal expert" should do.

Alan Dershowitz is brilliant and experienced. This is not a failure of knowledge. This is a failure of character.

Copyright 2017 by the named Popehat author.
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Copyright 2017 by the named Popehat author.
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Popehat by Ken White - 8M ago

This week on All The President's Lawyers: what if it IS RICO? Also, can you charge $63,000 for a fees motion?

Copyright 2017 by the named Popehat author.
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by Marc J. Randazza

American citizenship is one of the most coveted statuses that mankind has ever invented. A majority of the 7 billion people on this planet would gladly swap their passport for a nice blue one with a gold eagle on its cover. And how do you get it? For the most part, you get it by being born in the right place or to the right parents. Yeah, there's naturalization … but only about 20 million citizens, out of 350 million are naturalized. In other words, those who become “Americans by choice” are almost statistically insignificant. Even then, I think that the path to citizenship is nothing more than a bureaucratic game — and doesn’t really confer citizenship upon the “deserving.”

Therefore, I agree with President Trump — we should get rid of birthright citizenship. But, I believe we should get rid of it for EVERYONE. Open the gates of citizenship to everyone as well — even illegal immigrants — on the same terms as are offered to someone whose entire family tree grew from the planks of The Mayflower.

The problem in this country is not that Mexicans are streaming across the border to have anchor babies.

We had a huge flood of immigration in the early 20th century, and but for that immigration, America wouldn’t be half the country it is today. Immigration is not the problem. The problem is that so many of our home-grown citizens are stagnant, lazy, and stupid (and yes, so are many of our new arrivals). So how do we separate the wheat from the chaff?

We should have a “point system” for how much citizenship you get, with completely open borders. This country is built on freedom and competition, right? Let’s inject competition into the citizenship market!

We would each earn between 0-100 citizenship points. 50 points, you’re a citizen. At 75 points, you get Bronze Citizenship, 85 points you get Silver Citizenship, and at 95 points you get Gold Citizenship. Anyone who hits 100 points even, gets Super Eagle Citizenship.

If you have one of the higher-status citizenship categories, you get certain privileges — maybe no TSA lines for you. You can carry a gun anywhere you want. You can cut in line at the DMV or other government agencies. All men will still be created equal, but some can earn status that makes them quantifiably superior — at least in terms of the rights they get.

You get 5 points for being born to an American parent, so there is a little bit of legacy preference, but not a lot.

You get a certain number of points for having a full time job, graduating from high school, for paying your taxes, etc. Essentially, a few points for doing the stuff that we expect all productive members of society to do. Certain crimes and assorted other fuckups can cost you points.

If you do absolutely everything that you’re supposed to do, but nothing special, you probably wind up somewhere in the neighborhood of 65 points. No special privileges, but a good padding above full citizenship so that one or two screw ups won’t cost you your citizenship.

You get a certain number of extra points for graduating from college, a masters program, or a PhD program. We could give more points for more useful degrees, so yeah, get that MA in Victim Studies, but don’t think that it is going to make you more valuable to us than a nursing degree or an engineering degree, because it ain’t. A law degree, sadly speaking, might not be worth a whole lot.

You get bonus points for truly kicking in to improve America. You author a book. You start a business that employs a certain number of people. You invent something useful. You cut a bad ass album. You fill in potholes. The details can be tweaked as much as we like – but the concept is the same. You get points for being worthwhile and making America greater. If you contribute to America sucking, then you lose points.

It wouldn’t be wholly economically based — as there are non-financial contributions that indicate a desirable citizen. You save a puppy from a burning building. You use that law degree to handle a meaningful pro bono case. Joining the military gets you some extra points. Medals get you points too. Congressional Medal of Honor gets you 10 points that you can’t ever lose. But, unlike Starship Troopers, service alone does not guarantee citizenship (but it helps).

You lose points by being convicted of crimes, but also by douchetastic behavior that we don’t necessarily criminalize. You hog the left hand lane on the highway, you lose a point every time you do that. Lie about who your kid's dad is, you don't go to jail, but you're not going toward higher status with that behavior, missy. Dude, you sexually assault someone, and we can't necessarily prove it sufficiently to put you in jail, we might still be able to dock you some points. If you put a dog in a stroller, you lose 5 points. If you have an "emotional support animal," you lose 5 points. Because fuck you, you're fucking useless. Holy shit, if you incorrectly use the phrase "fire in a crowded theater," you're losing a few points, my friend. SO FUCKING READ HOLMES OR TO THE UNDERCLASS YOU GO, YOU INTELLECTUAL PEASANT!

Of course, you can be "useful" in some ways that won't necessarily help you points-wise. This system will be as disengaged from the economic system as it can be. Maybe if you make your living by flipping houses or by raiding companies and selling their assets off and laying off the whole workforce, we can dock you a few points. You can still be rich with lower status, but having more money in the bank won’t buy you citizenship points. More money to you, but you’re not getting any closer to being an Eagle.

You can’t serve as a judge, in public office, as a cop, or a lawyer unless you have at least Silver (75 points). In fact, maybe elected offices, and even appointed positions, require a certain status. I like the idea of using this to punish non-violent crimes as well. Why lock people up, if they have committed some crime, but are really not a danger to society? Prison populations would crash, and that's a great thing.

If you have less than 50 points, the Constitution doesn’t fully apply to you. Maybe some provisions apply at 10 points or so, but you’re not a full citizen, you don’t get full protection. Certain geographic areas would be closed to people below a certain number of points. You sure as hell don’t get to vote if you’re under 50 points.

If you are over 25 years old and you have less than 10 points, you get nothing. No First Amendment, no Fourth Amendment, no nothing. Essentially, you’re on probation. You have to move out of the way for citizens when you are in line at the store. You don’t get to drive. If your points get to zero, we give you a choice of moving to another country (never to return) or prison — but in Prison, you can earn points and get yourself out. But, if you're a grown man or woman and you can't get at least 10 points, you aren't worth much, so you shouldn't get much.

With this plan, we open the borders and welcome everyone. Certain immigrants get to start with a few points. Perhaps you did some act of service to the United States, like saving American soldiers from kidnappers. You win a Nobel Prize, you get 25 points just to move here. But, your average immigrant gets only a point or two for checking in at the border and letting us know he’s here. A truly worthy immigrant – the kind we want, can earn 50 points in 5 years or less, and within a few decades can even be eligible to run for president. A crappy one will find life here to be very unpleasant, as will a home-grown loser, who might find it more desirable to just leave – thus making room for more worthy immigrants.

So, Donald, you wanna do this? Lets really do it!

Copyright 2017 by the named Popehat author.
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I should not have to do this. But here we are.

There's a political rumor/meme/argument going around in the last couple of weeks among people opposed to Judge Kavanaugh's confirmation to the Supreme Court. It's a theory that Trump is rushing Kavanaugh onto the Court so he can rule on an obscure double jeopardy case and open the way for Trump to pardon his underlings in a way that prevents them from being prosecuted by the states. Josh Barro and I knocked it down in this week's edition of All The President's Lawyers. But it persists. NBC has a column pushing it today. It's become so widespread that Snopes has gotten into the act, sort of explaining the structure of it and giving it undeserved cachet.

Here's the problem: the theory is wrong, or at least, wildly exaggerated in certainty and significance.

Here's why.

The issue at hand is the Double Jeopardy Clause of the Fifth Amendment, which says the government can't "for the same offence . . . .be twice put in jeopardy of life or limb." Most commonly double jeopardy means that the government can't charge you again with the same thing after they lose at trial. There's a notorious exception to it called the "Separate Sovereigns" or "Dual Sovereignty" Doctrine. Under this doctrine, different "sovereigns" can try you for the same crime because they have separate interests in punishing the crime. This most commonly allows the federal government and a state to prosecute you for the same crime, on the theory that they have distinct interests and reasons to do so. This famously happened when the federal government prosecuted the police officers who beat Rodney King even after they were acquitted in state court.

The Dual Sovereignty Doctrine has always been controversial and somewhat unpopular. This term, the Supreme Court agreed to hear a case in which it could overturn the Dual Sovereignty Doctrine. That case is Gamble v. United States — you can read all about it here, on the indispensable SCOTUSblog.

The theory/meme/warning goes like this: Trump wants Kavanaugh on the Court immediately, so Kavanaugh can hear Gamble and vote to wipe out the Dual Sovereignty Doctrine, and then, once Trump pardons his various relatives and underlings and lawyers for federal crimes, they will no longer be subject to state prosecution for the same crimes. He'll be able to spare his whole criminal enterprise! It's obstruction/RICO!

No.

There's a bunch of things wrong with this wild-eyed theory.

Let's start with the fact that the Dual Sovereignty Doctrine has never been a clean left/right conservative/liberal issue. This isn't a situation where it's clear there's a 4/4 split and the conservative Judge Kavanaugh is needed to break it. So, for instance, in Heath v. Alabama in 1985, when the question was whether to extend the doctrine to two separate states prosecuting the same crime, seven justices extended it; the two who dissented were Brennan and Marshall, the liberals. In 2016, the issue returned to the Supreme Court in Puerto Rico v. Sanchez Vale. There the issue was whether the Dual Sovereignty Doctrine applied to Puerto Rico — is Puerto Rico, as a territory of the United States, a "separate sovereign" from the United States, or not? The Court held that Puerto Rico was not separate for these purposes and thus Puerto Rico and the United States could not prosecute someone for the same crime. Justices Ginsburg and Thomas — hardly ideological allies – concurred, but questioned whether the Supreme Court should revisit the viability of the Separate Sovereignty Doctrine. "I write only to flag a larger question that bears fresh examination in an appropriate case. The double jeopardy proscription is intended to shield individuals from the harassment of multiple prosecutions for the same misconduct . . . . Current “separate sovereigns” doctrine hardly serves that objective." (Ginsburgh, joined by Thomas, concurring.) The other justices did not question the doctrine. Thus, if the Doctrine is in serious danger of being overturned (and two justices questioning it is not enough to say that it is), it's in danger not just from the right, but from the left. And because it's not a clean left/right issue, we can't assume we know where Kavanaugh would come down on it.

More importantly, though, the connection between the doctrine and Trump pardons is bunk.

Double Jeopardy prevents successive prosecutions for the same crime, not related crimes. So — even if Kavanaugh swung the Supreme Court to overturn the Separate Sovereigns Doctrine, and even if Trump then went on a pardoning rampage to spare Ostrich Jacket and Idiot Lawyer and Junior and Dummy and so forth — Tump's pardon would only prevent state prosecution for the same crime that Trump pardoned them for federally. What's the "same crime?" Under the so-called Blockburger rule, two crimes are not the "same" if each one requires proof of an element that the other does not — that is, if each has at least one unique element. So: Trump's pardon can only prevent state prosecutions to the extent the state crimes have the same elements as the federal crimes he's pardoning. They usually don't. Gamble, the litigant in the case before the Court, points this out himself:

Because this Court deems two crimes to be different offenses any time “each offense contains an element not contained in the
other,” Dixon, at 696 (discussing Blockburger, 284 U.S. at 304), it will still be the unusual case in which the federal and state governments may not both bring some charge based on the same criminal occurrence.

Similarly, the Thurgood Marshall Civil Rights Center filed a friend of the Court brief in support of neither party laying out historical issues for the Court. That Center has a historical interest in civil rights laws, which have often involved Dual Sovereignty Doctrine prosecutions (as it did in the Rodney King case). The center concurs that overturning the doctrine would not prevent dual prosecutions:

Under Blockburger v. United States, federal civil rights statutes concerning law enforcement misconduct are not the “same offense” as State
statutes that may cover the same or similar underlying conduct. Thus, overruling dual sovereignty should not eliminate the federal government’s ability to prosecute these types of civil rights cases after the State has previously prosecuted a case that was tried to verdict.

So: even if Kavanaugh helps overturn the Dual Sovereignty Doctrine, Trump cannot insulate his underlings with pardons — particularly because many of them face uniquely state-law issues, like state tax violations or violations of other state laws. Could Trump pardons preclude state prosecution for some state crimes that are identical to federal crimes? Yes. But the notion that such state prosecutions are even in the works is purely speculative.

There are plenty of reasons you might oppose Judge Kavanaugh. This one is an over-complicated bag of hot air, approaching a Twitter conspiracy theory.

Copyright 2017 by the named Popehat author.
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Josh tortures me with emoluments and exacting word-by-word analysis of Lawrence Tribe tweets.

This week on All The President's Lawyers.

Copyright 2017 by the named Popehat author.
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The United States Attorney for the Western District of Virginia in Charlottesville has obtained a federal criminal complaint against four men — Benjamin Drake Daley, Michael Paul Miselis, Thomas Walter Gillen, and Cole Evan White — charging them with interstate travel to riot and conspiracy in connection with the August 2017 "Unite the Right" rally.

Who filed the what now?

The U.S. Attorney is the senior federal prosecutor in the Western District of Virginia — one of the two federal court districts in Virginia. The U.S. Attorney's office filed a federal criminal complaint against the four men. Feds file a complaint by having a federal agent submit, and swear to, an affidavit describing the evidence showing probable cause to believe the defendant committed the crime, and having a United States Magistrate Judge sign off. The complaint for one of the men is here; the affidavit in support of all four complaints against the four men is here.

What are they charged with?

For now, they're charged with two federal crimes. One is 18 U.S.C. 2101, which prohibits travelling in interstate commerce, or using interstate facilities like the internet, to incite or promote a riot. A "riot" is defined to mean an assembly of three or more people involving violence or threats of violence. They're also charged with conspiracy to commit a federal crime in violation of 18 USC 371, on the theory they agreed and conspired to travel and plan in interstate commerce to riot at Charlottesville.

Why is this a federal crime?

For the riot statute, the federal hook is travelling in interstate commerce or using interstate mechanisms like the internet or phone – that's a common hook for federal jurisdiction. The hook for the conspiracy charge is conspiring to violate the federal law — a bit of bootstrapping.

Is that it? Just those two counts?

That's all for now. They've only been charged in a complaint. They have a right to be indicted by a grand jury, which they will be within a couple of weeks unless they cut a deal. The feds may seek more charges in a grand jury indictment — the initial criminal complaint is usually fairly bare bones, since it's just a placeholder to get an arrest warrant and start the case. You usually see the prosecutor's more expansive case theory in the indictment.

How much time do they face?

The two charges each carry a maximum sentence of five years. However, as frequent readers know, that bears no relation to their likely punishment if convicted. First of all, the indictment might carry other charges. Second, they will be sentenced based on recommendations in the United States Sentencing Guidelines, which lead to results usually much lower than the statutory maxima.

What do we know about the evidence against them?

Since it's a federal complaint, it's supported by a pretty detailed affidavit detailing the investigation and what authorities found. The affiant — a Virginia State cop who is a member of a federal Joint Task Force — alleges that the four defendants were members of a Southern-California-based organization called "Rise Above Movement," or "RAM," which encourages "clean living" and "street fighting techniques." RAM members identify themselves as "alt-right" and "nationalist." The complaint alleges that Daley, Miselis, Gillen, and White [no relation of which I am aware] traveled to Charlottesville from California to attend the United The Right Rally on August 12, 2017. The complaint asserts that they have in the past engaged in "acts of violence directed towards their supposed political opponents and counter prostestors" at places like Berkeley. The complaint includes pictures of the defendants at Charlottesville, social media statements (one genius: "I hit like 5 people"), pictures of their hands taped (allegedly in preparation for fighting), and describes video footage of them assaulting people at the rally. So: it sounds as if the authorities have photos and video of them in Charlottesville, with at least some of them engaging in assaults, as well as various statements and admissions, plus prior behavior probative of intent.

Is it a strong complaint?

Well, it's as strong as it has to be. Probable cause is a very low bar. In my view, the affidavit is mediocre because it lacks thorough attribution — that is, the affiant does not explain how he knows each fact in the affidavit, but just gives a narrative statement of the investigation. But that's not uncommon, unfortunately, and feds can usually get away with it (though my supervisors at the U.S. Attorney's Office would never have put up with it, and I wouldn't have approved such an affidavit). Leaving that aside, it's enough to show probable cause — it has evidence they traveled from California to Charlottesville and committed violence at the rally, and evidence that their intent was to do so.

Does the case have First Amendment implications?

Certainly. But the First Amendment doesn't protect violence. It also doesn't protect true threats (that is, threats that a reasonable person would take as an expression of genuine intent to do harm, which the speaker intended that way) nor actual incitement (speech intended, and likely, to cause imminent lawless action). Moreover, the First Amendment doesn't prohibit using someone's speech as evidence to prove motive, pattern, or intent — like using the defendants' prior speech in an attempt to prove that they intended to go to the rally to assault people.

So what happens next?

It depends. As I write this at about 11:34 Pacific on October 2, 2018, it's not clear where these guys were arrested. If they were arrested in the Western District of Virginia, they just get brought to federal court, are arraigned, and try to get bail (we'll see if the government tries to have them detained as violent), and the court sets a future hearing date, before which the U.S. Attorney's Office will either indict them or cut deals with them.

If they've been arrested elsewhere — in California, say — they'll first appear in the nearest federal court here in California. They can waive their rights and go straight to Virginia, or they can insist on a process where the government has to prove that they're the same four guys named in the complaint and that there's probable cause for the charge (which the government usually does by indicting them, which establishes it).

Wait — why was the complaint under seal? Why are they being arrested now if it was filed on August 27?

It appears that the feds sought search warrants as well as complaints. They would have sought the complaints from a magistrate judge in Virginia, where they are being charged, and the search warrants from a magistrate judge in California, where the properties to be searched likely are, since they're from here. Arresting four dudes and searching multiple locations, especially when they're in a different district, is a logistical nightmare. If you're searching, you don't want to give them advanced notice. So it's common for the feds to get a complaint, ask the judge to keep it under seal, and unseal it only when they arrest the people and the whole operation is public.

I'll update this 'splainer if events warrant.

Copyright 2017 by the named Popehat author.
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If aliens grabbed some rando popped-collar douchebro off of a frathouse roof, Uplifted his brain, and handed him a billion dollars, they'd wind up with Elon Musk, a furiously rich, frighteningly smart visionary and ambulatory Ed Hardy shirt. The wisdom-dump-statted Musk has been terrifying Tesla shareholders by careening from one bizarre antic after another. It might be said of him that we are all constantly called upon to hold his beer.

This week finds him hailed to court. Musk made news recently for his antic crescendo of insults and accusations against a cave diver named Vernon Unsworth, who had the temerity to suggest that Musk's efforts to helped cave-trapped Thai children were poseur nonsense. Erratic billionaires don't take criticism well as a rule, and Musk suggested, then denied, then doubled down again and insisted that Unsworth is a pedophile. This is the point at which prudent people seek a court-ordered conservator over the antic person, except this antic person can send rockets into space and back.

Unsworth, after threats, has now sued. The lawsuit — filed in United Sates District Court in Los Angeles — is here. It's in federal court based on diversity jurisdiction — that is, because the parties are from different states and/or countries (California for Musk and England for Unsworth) and asserts but one count of defamation. The defamation claim is very thoroughly drafted — it sets for all of the complained-of statements and their context quite thoroughly, and even attaches tweets and articles to show the full context. Unsworth claims that Musk has falsely accused him of being a pedophile, a person who has engaged in pedophilia, a child rapist, a child sex-trafficker, the husband of a 12-year-old child bride, and a liar.

So how does this play out?

Most likely the whole case turns on whether these are provable false statements of fact, as required for defamation. Rhetorical hyperbole, insult, shit-talking, bloviating, pure opinion, and other expressions not reasonably taken literally as assertions of fact are not defamation. Opinion based on disclosed facts — "look at this article about what he did, Elon Musk clearly has a personality disorder" — are not defamatory. But a statement reasonably taken as one of fact — or an opinion expressed in a way to imply false undisclosed facts — can be defamatory.

So where do Musk's musings come out?

In my view, and tracking the statements listed in Exhibit A to the Complaint:

1. The 7/15/18 tweet where Musk says it is "sus[picious]" that Unsworth lives in Thailand is an opinion. It's a stupid one, but it's an opinion.
2. The 7/15/18 tweet where Musk calls Unsworth "pedo guy" is likely insult and hyperbole. Whether something is a statement of fact is determined by context, as viewed by people familiar with it. Twitter is a place for non-specific shit-talking, and people viewing it are less likely to see things as statements of literal fact. Absolutely nothing in Musk's tweet supports or suggests he has some basis for calling Unsworth a pedophile; the much more reasonable interpretation is that it's shit-talking and insult.
3. The 7/15/18 tweet where, confronted with his accusation, Musk says "bet ya a signed dollar it's true" is also likely hyperbole, insult, and opinion. Nothing about it suggests Musk has any basis to be making a factual claim and the entire context suggests trash-talking.
4. Musk's 8/28/18 tweet saying it's strange that Unsworth hasn't sued — implying that therefore he must be a pedophile — is an argument and opinion, not an assertion of fact, and again is in a context suggesting trash-talking and insult.
5. Musk's 8/30/18 email to Buzzfeed is another story. He claims that Unsworth moved to Thailand to marry a 12-year-old child bride. That's a statement of fact. He also accuses Buzzfeed of defending child rapists and lays out his evidence for his accusation that Unsworth is a pedophile — including the child bride allegation. This part gets more complicated. An opinion based on disclosed facts — even if it's a stupid opinion — is protected so long as the disclosed facts are true. But here Musk is offering his opinion that Unsworth is a pedophile and premising it on the claim that he married a child bride, which Unsworth says is false. That makes this section potentially defamatory.
6. Musk's allegation in a second 8/30/18 email that he was told that Unsworth was banned from the site is potentially defamatory if that's false and he was not told that.

So: in my view there are some potentially defamatory statements here. There are potential defenses — Musk would try to argue that Unsworth is a limited purpose public figure and that Musk didn't make the false statements with the requisite actual malice (knowing the statements to be false or with reckless disregard as to their falsity). It's a defensible case, but not a case, in my view, that gets kicked out early through a motion to dismiss or motion under California's anti-SLAPP statute, which applies to a limited extent in federal court in California.

It will be interesting to see what Musk files in response. The suit reveals, if nothing else, a CEO acting in a disturbingly erratic manner. Musk will have a much grimmer time in England, which has far less speech-protective laws, if Unsworth sues there.

Copyright 2017 by the named Popehat author.
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